.......................................................................................................................................

The Bush Doctrine Revisited:

The 2006 National Security
Strategy of the USA
Christine Gray

Abstract
In its 2006 National Security Strategy, the USA reafrms the controversial doctrine of
pre-emptive self-defence as crucial in the war on terror proclaimed after the attacks
of 9/11. But it does not provide a detailed examination of pre-emption. The
questions left open in the 2002 US National Security Strategy as to what will
trigger pre-emptive action, when action against non-State actors will be permissible
and what degree of force will be proportionate in pre-emptive action are still unre-
solved. The promise that The reasons for our actions will be clear, the force
measured and the cause just does not offer much in the way of specic guidance.
It is very striking that in this context, the US strategy makes no reference to inter-
national law or to the role of the UN Security Council. The other main focus of
the strategy is on the promotion of democracy, but it does not go so far as to
assert any legal right to use force for this purpose, and it makes only passing reference
to humanitarian intervention. The EU 2003 Security Strategy provides a marked con-
trast in that it does not adopt the doctrine of pre-emptive self-defence, does not
expressly identify rogue States and does profess respect for international law and
for the role of the UN. Other States have not generally shown themselves willing
to accept a Bush doctrine of pre-emptive self-defence. They agree that there are
new threats facing the world from international terrorists and the danger of prolifer-
ation of weapons of mass destruction, but the 2005 World Summit showed clearly
that there is no general acceptance of pre-emptive action. Moreover, the International
Court of Justice still follows a cautious approach to self-defence. The 2006 National
Security Strategy largely reafrms the doctrines of the earlier 2002 Strategy, but
whereas the focus in the 2002 Strategy was on the threat posed by Iraq and North
Korea; attention has now shifted to Iran and Syria, accused of being State sponsors
of terror by Hizbollah and Al-Qaida. The article ends with a discussion of the recent
conict in Lebanon: this raised the crucial question whether the war on terror gave
Israel a wide right to use force, even a pre-emptive right. The conict highlights
dramatically the practical signicance of the divisions on the scope of the law of
self-defence with regard to action against non-State actors, pre-emption and
proportionality.
....................................................................................................................................................................
Chinese Journal of International Law (2006), Vol. 5, No. 3, 555578 doi:10.1093/chinesejil/jml043

Professor of International Law, University of Cambridge.

#The Author 2006. Published by Oxford University Press. All rights reserved.
Advance Access publication 12 October 2006

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I. The war on terror
In his letter introducing the 2006 National Security Strategy of the USA, President Bush
begins portentously (and controversially): America is at war. This is a wartime national
security strategy required by the grave challenge we facethe rise of terrorism fueled by
an aggressive ideology of hatred and murder, fully revealed to the American people on
September 11, 2001. This strategy reects our most solemn obligation: to protect the secur-
ity of the American people.
1
President Bush is clearly writing not of any traditional inter-
State war, but rather of what he has called the ongoing war on terror, or, as the Pentagon
has more recently called it, the long war. The assertion that there is an ongoing war leads
the President to repeat the controversial legal claims on the use of force made earlier in the
2002 National Security Strategy, and in particular to a reafrmation of the Bush doctrine of
pre-emptive self-defence. This article will consider whether the 2006 National Security Strat-
egy adds anything to its predecessor as regards the use of force. Does it develop the Bush doc-
trine of pre-emptive self-defence? How does the USA apply the law of self-defence to attacks
by and against non-State actors in the war on terror? How does the 2006 Strategy compare
with the 2003 European Security Strategy, and what has been the impact of the two Strategies
on international law on the use of force?
In May 2003, the USA had announced that major combat operations in Afghanistan and
Iraq were over, but that the war on terror continued. US Defence Secretary Rumsfeld
proclaimed that major combat operations in Afghanistan were over, following the overthrow
of the Taliban regime which had supported Al-Qaida terrorists; Operation Enduring Freedom
had been initiated in October 2001 in response to the terrorist attacks of 9/11.
2
President
Bush proclaimed that major combat operations in Iraq were over after the toppling of
Saddam Hussein.
3
With regard to Iraq, President Bush asserted that The battle of Iraq is
one victory in a war on terror that began on September 11, 2001 and still goes on. . . The
liberation of Iraq is a crucial advance in the campaign against terror. Weve removed an
ally of Al-Qaida and cut off a source of terrorist funding. This is a renewal of his earlier
controversial attempts to establish a link between the regime of Saddam Hussein and
Al-Qaida terrorists. In the lead up to Operation Iraqi Freedom, the Bush administration
claimed that these links existed, in an attempt to justify the use of force against Iraq as
part of the war on terror. But no evidence for the existence of such a link was produced
before the invasion of Iraq in 2003,
4
and for many critics, Operation Iraqi Freedom was
a diversion from the war on terror.
5
In retrospect, both the May 2003 proclamations
1 2002 (41) ILM 1478.
2 Keesings Record of World Events (hereafter Keesings) (2003), 45403.
3 Keesings (2003), 45434.
4 Gray, International Law and the Use of Force (2nd edn. 2004), 180; Keesings (2004), 46245.
5 Just as there were fundamental divisions as to the legality of Operation Iraqi Freedom, so there are now divisions
as to whether the invasion has proved counter-productive in the war on terror. There is disagreement as to whether
the invasion has increased the risk of terrorist attacks in Iraq and elsewhere. The new government of Iraq chal-
lenges those who say that terrorism had been unleashed because of the occupation of Iraq and that it would
have been better not to take military action to remove Saddam Hussein: That was nonsense, the kind of inverted
556 Chinese JIL (2006)

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seem distinctly premature: serious ghting continues in both States. The USA maintains that
there is an ongoing war on terror in Afghanistan and Iraq: they are now front lines in the war
on terror, and winning the war on terror requires winning the battles in Afghanistan and
Iraq.
6
The Security Council, although not committing itself to this US characterization of the
ongoing conicts in Afghanistan and Iraq, has condemned some of the violent acts in
these States as terrorism and accepted that they should not be classied simply as resistance
to foreign occupation or as civil war or sectarian conict. With regard to Afghanistan,
somewhat paradoxically given that Operation Enduring Freedom was undertaken in
response to a terrorist attack and in order to deter future attacks, the Security Councils refer-
ences to the threat from terrorism were at rst rather limited. However, such references have
strengthened recently. In early resolutions, there were simple reafrmations of Resolutions
1368 and 1373 passed after the terrorist attacks of 9/11 and also general references to the
Security Councils support for the international effort to root out terrorism.
7
In 2005, the resolutions began to refer expressly to the ongoing challenges in Afghanistan
itself as including terrorist threats. The Security Council called on the government of
Afghanistan, with the assistance of the international community including Operation Endur-
ing Freedom and NATOs International Security Assistance Force (ISAF), to continue to
address the threat to the security and stability of Afghanistan posed by Al-Qaida operatives,
the Taliban and other extremist groups.
8
Resolution 1662 (2006), passed unanimously,
recognized the continuing importance of combating increased terrorist attacks caused by
the Taliban, Al-Qaida and other extremist groups. These resolutions appear to give legiti-
macy to the long-lasting US-led Operation Enduring Freedom in Afghanistan; this
counter-terrorist operation began in 2001 and its legal justication apparently remains the
samethat it is using force in self-defence against Al-Qaida and its supporters in the
remnants of the Taliban. However, given the absence of any public debate on the resolutions,
it is not entirely clear whether the Security Council actually accepts that there is an ongoing
right of self-defence in a global war on terror or whether its members accept the legality of
Operation Enduring Freedom because of the consent of the Afghan government to its pre-
sence and operations.
9
Nor did the day-long debate on Afghanistan on 23 August 2005
logic that appealed to the feeble-minded. It was the logic that blamed the doctor for the disease and the victim for
the assault. (UN Press Release SC/8471, 4 August 2005.) The USA and the UK also follow this line, correctly
stressing that terrorist attacks pre-dated the invasion of Iraq. However, they tend not directly to address the argu-
ment that the invasion of Iraq has increased the likelihood of terrorist attack. See for example, President Bush
speech, National Endowment for Democracy, 6 October 2005 (www.whitehouse.gov/news/releases/2005/
10/20051006-3.html); Blair Speech to the World Affairs Council in Los Angeles, 1 August 2006, (www.
number10.gov.uk/output/Page 9948).
6 2006 National Security Strategy, 12.
7 Resolutions 1386 (2001), 1510 (2003), 1563 (2004).
8 Resolution 1589 (2005) ( passed unanimously). See also S/PRST/2005/40.
9 The classication has signicance for the application of the laws of armed conict: is this an internal armed
conict between Afghanistan with outside assistance or an international conict against terrorism, to be seen
as a new type of conict with new rules on prisoners of war.
Gray, The 2006 National Security Strategy of the USA 557

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throw any light on this issue.
10
Operation Enduring Freedom continues alongside ISAF, but
unlike ISAF, it was not directly authorized by the Security Council.
11
With regard to Iraq, the Security Council has only recently started to make references to
terrorismin its resolutions. First, in Resolution 1546 (2005), it set out newtasks for the multi-
national force established under Resolution 1511 (2003), including maintaining security and
stability by preventing and deterring terrorism. It also condemned all acts of terrorism in Iraq
and reafrmed the obligations of States set out in Resolution 1511 to prevent the transit of
terrorists to and from Iraq, the supply of arms for terrorists and nancing that would
support terrorists. In Resolution 1618 (2005), it unanimously reafrmed in general terms
the need to combat by all means, in accordance with the UN Charter, threats to international
peace and security caused by terrorist acts. With specic reference to Iraq, the Security Council
condemned without reservation and in the strongest terms the terrorist attacks that have
taken place in Iraq, and regards any act of terrorismas a threat to international peace and secur-
ity and afrmed that acts of terrorism must not be allowed to disrupt Iraqs political and
economic transition. Despite this willingness to condemn acts of terrorism, especially those
against foreign diplomats, the debates do not show any general acceptance of the US position
that the conict in Iraq is best understood as part of an ongoing war on terror.
12
US represen-
tative John Bolton in his rst Security Council meeting expressed the position that Iraq faces
the same transnational terrorist threat that has struck many other parts of the world. But Russia
pointed out, The situation in Iraq cannot be boiled down simply to the need to ght inter-
national terrorism. The crimes committed by terrorists are only part of the problem to be
overcome by the Iraqi people. The achievement of national reconciliation is the most import-
ant key to the elimination of the terrorist threats facing that State.
13
II. The promotion of freedom
As we have seen, a major focus of President Bushs letter introducing the 2006 National
Security Strategy was the war on terror. However, in his introductory letter, President Bush
also went on to stress the promotion of freedom: America also has an unprecedented
opportunity to lay the foundations for future peace. The ideals that have inspired our
historyfreedom, democracy, and human dignityare increasingly inspiring individuals
and nations throughout the world. And because free nations tend toward peace, the
advance of liberty will make America more secure. President Bush celebrated the bringing
of democracy to Iraq and Afghanistan.
14
This stress on the promotion of freedom pervades
10 UN Document S/PV 5249; UN Press Release SC/8478, 23 August 2005.
11 ISAF was set up under Resolution 1511 (2003).
12 See, for example, UN Document S/PV 5246; UN Press Release SC 8471, 4 August 2005; S/PV 5300,
8 November 2005.
13 UN Document S/PV 5246, 4 August 2005. The classication of the conict in Iraq has proved a sensitive
issue and the US government has resisted suggestions that there is now a sectarian civil war: Keesings (2006),
47178, 47231.
14 See also 2006 National Security Strategy, 2.
558 Chinese JIL (2006)

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the 2006 National Security Strategy. The new National Security Strategy is nearly 20 pages
longer than its predecessor, partly because it contains far more extensive discussion of the
promotion of democracy in the expanded section on Goal II, Champion Aspirations for
Human Dignity.
There is, of course, some tension between the two aims. In its war on terror, the USA has
welcomed cooperation from distinctly undemocratic regimes; the USA may be understood
implicitly to have acknowledged this in the 2006 National Security Strategy when it said
that The form that freedom and democracy take in any land will reect the history,
culture, and habits unique to its people. The tactics of the USA in its support of the advo-
cates of freedom will vary, reecting where each government is on the path from freedom to
tyranny.
15
Conversely, tension between the two aims has also arisen when democratic
elections produced results unacceptable to the USA, as in the case of the victory of
Hamas, categorized by the USA as a terrorist organization, in the elections held in the
Israeli-occupied Palestinian territories in January 2006.
16
III. The 2006 National Security Strategy and pre-emptive
self-defence
III.A. Background: 2002 National Security Strategy
The 2006 National Security Strategy largely reafrms the 2002 National Security Strategy and
repeatedly refers back to its provisions on the use of force and other topics. Almost every
section of the 2006 Strategy begins with a summary of the equivalent section of the 2002
Strategy. The 2002 National Security Strategy was a dramatic document which provoked
much discussion. It was intended to address the need to transform the defence of the
nation in response to the end of the Cold War and the emergence of new threats from ter-
rorist attacks following 9/11. Its most important feature as regards international law on the
use of force was its support for a doctrine of pre-emptive self-defence: The USA has long
maintained the option of pre-emptive actions to counter a sufcient threat to our national
security . . . To forestall or prevent . . . hostile acts by our adversaries, the United States
will, if necessary, act pre-emptively. In this context, it suggested a fundamental change in
the law on the use of force, in particular on the scope of self-defence. It called for a re-exam-
ination of the requirement of imminence in the law of self-defence. It said international law
recognized that the use of force against imminent attack was permissible, and went on We
must adapt the concept of imminent threat to the capabilities and objectives of todays adver-
saries.
17
Thus, the 2002 Strategy did refer expressly, but very brieyand controversially
to international law, in claiming that, for centuries, international law had recognized that
nations need not suffer an attack before they could lawfully take action to defend themselves.
15 Ibid, 56.
16 The 2006 National Security Strategy, 5. On Hizbullah, similarly classied by the USA as a terrorist organization
but elected to seats in Lebanons parliament and holding two seats in the cabinet, see below n. 99.
17 2002 National Security Strategy, 15.
Gray, The 2006 National Security Strategy of the USA 559

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This 2002 proclamation of a Bush doctrine proved very controversial. The 2002 National
Security Strategys discussion of the use of force was extremely brief and left considerable
uncertainty as to what would trigger the right of pre-emptive self-defence and as to who
could invoke such a right. No limits were set on the right in the Security Strategy and its
scope was left unclear. That is, the applicability of the traditional doctrines of necessity
and proportionality in the case of pre-emptive self-defence remained obscure. Moreover,
there was some uncertainty as to whether pre-emptive self-defence was put forward in the
2002 National Security Strategy as an existing legal right or merely as a proposal as to
what the law should be. In an earlier article on the 2002 National Security Strategy in this
journal, I concluded by saying that there was some doubt as to whether the support for
pre-emptive self-defence was a rhetorical device to put pressure on Iraq or a serious
attempt to rewrite international law on the use of force. Much would depend on the reaction
of the rest of the world.
18
The rst test of the doctrine of pre-emptive self-defence arose with
regard to Iraq.
III.B. Operation Iraqi Freedom 2003
The 2002 US National Security Strategy was produced after the terrorist attacks of 9/11 and
after the USA had undertaken Operation Enduring Freedom in Afghanistan in response to
those attacks. However, it was obviously written with special regard to Iraq when it described
the threat posed by rogue regimes which might acquire weapons of mass destruction (WMD)
and supply them to global terrorists hostile to the USA and its friends. Nevertheless, when
the USA embarked on Operation Iraqi Freedom in 2003, it deliberately chose not to use
pre-emptive self-defence as its main justication for the use of force. All three States actually
involved in the initial military operationthe USA, the UK and Australiarelied on a claim
of Security Council authorization given by a combination of resolutions. In so far as the
action was pre-emptive, this was claimed to have been authorized by the UN rather than
to amount to pre-emptive self-defence.
19
Indeed, among those three States, only the USA
specically mentioned self-defence in its justication for its use of force, and then only
very briey and with only a vague indication of pre-emption. At the end of its letter sent
to the Security Council at the start of operations, it said, The actions that coalition
forces are undertaking are an appropriate response. They are necessary steps to defend the
United States and the international community from the threat posed by Iraq and to
restore international peace and security in the area.
20
In their own letters to the Security
Council, the UK and Australia did not make any reference to self-defence, let alone to
pre-emptive self-defence.
21
Thus, there was a clear reluctance to use the doctrine of
pre-emption. This may be taken as a sign of the controversial nature of the doctrine.
18 Gray, The US National Security Strategy and the new Bush Doctrine on Pre-emptive Self-defence, Chinese JIL
(2002), 437.
19 Taft and Buchwald, Preemption, Iraq and International Law, 553 AJIL (2003), 97
20 UN Document S/2003/351, 21 March 2003.
21 UN Documents S/2003/350, S/2003/352, 20 March 2003.
560 Chinese JIL (2006)

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Moreover, it is widely acknowledged that Operation Iraqi Freedom demonstrates the
danger of pre-emptive action. The action was taken on the basis of intelligence that the
government of Iraq was developing WMD in violation of the ceasere regime binding on
it under Security Council Resolution 687; it turned out that there were no WMD. The
Iraq Survey Group set up by the coalition forces after the invasion provided nal conr-
mation of this in October 2004: after some 1500 inspectors had spent 16 months and
US$6000 million scouring the cities and deserts of Iraq, they had found no WMD or
any programmes to manufacture them. The Iraq Survey Group did, however, assert that
Saddam Hussein had intended to develop such weapons.
22
The debate continues as to
whether it was faulty intelligence or misuse of intelligence involving the politicization of
the intelligence services by governments, or both, that led to the assertion the Saddam
Hussein was developing WMD and to the decision to use force. President Bush acknowl-
edged in the 2006 National Security Strategy, Our intelligence must improve. However,
he said there would always be some uncertainty about the status of hidden programmes,
since proliferators are often brutal regimes that go to great lengths to conceal their activities.
And Saddams strategy of bluff, denial and deception is a dangerous game that dictators play
at their peril. It was Saddams reckless behaviour that demanded the worlds attention, and it
was his refusal to remove the ambiguity he created that forced the United States and its allies
to act. We have no doubt that the world is a better place for the removal of this dangerous
and unpredictable tyrant, and we have no doubt that the world is better off if tyrants know
that they pursue WMD at their own peril.
23
III.C. Pre-emptive self-defence in the 2006 National Security Strategy
In his letter introducing the 2006 Strategy, President Bush says, We ght our enemies
abroad instead of waiting for them to arrive in our country, and the 2006 National Security
Strategy makes a continuing strong commitment to pre-emptive action. It asserts that The
place of preemption in our national security strategy remains the same.
24
This approach
may be seen also in the policy of active defense set out in the Department of Defense
National Defense Strategy of March 2005
25
and in the emphasis on the need for actions in
self-defence to pre-empt adversaries before they can attack in the 2004 National Military
Strategy of the USA.
26
But the discussion of the use of force in the 2006 Strategy is no more detailed than it had
been in 2002. Many questions are still left unanswered. What is new and very striking is the
absence of any express reference to international law. As before, it is Goals III and V which
deal with the use of force. Goal III remains the same as it had been in 2002: to strengthen
alliances to defeat global terrorism and work to prevent attacks against us and our friends.
22 Keesings (2004), 46282.
23 US National Security Strategy 2006, 2324.
24 Ibid, 23.
25 Department of Defence website www.defenselink.mil/.
26 Ibid.
Gray, The 2006 National Security Strategy of the USA 561

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The 2006 Strategy repeats the 2002 position that in ghting terrorism, the USA can no
longer rely on deterrence; the ght must be taken to the enemy. However, the 2006 National
Security Strategy no longer refers merely to the threat posed by shadowy networks of indi-
viduals as President Bushs introduction to the 2002 version had done; it now attempts to
identify much more precisely the nature of the terrorist threat. The main danger is said to
come from Islamic extremists, although the Strategy nevertheless maintains that the
war on terror is a battle of ideas, it is not a battle of religions.
27
It discusses the causes of
terrorism at some length and contests the view that the invasion and occupation of Iraq
led to an increase in terrorism.
Elsewhere President Bush has been even more outspoken in blaming Islamic radicalism
for global terrorism, and he has attributed a clear three-step political agenda to Islamic
extremists or Islamo-fascists. First, they want to end American inuence in the Middle
East because the USA stands for democracy and peace; second, they want to use the
vacuum created by an American retreat to gain control of a country, a base from which to
launch attacks and conduct their war against non-radical Muslim governments; and third,
they believe that controlling one country will rally the Muslim masses, enabling them to
overthrow all moderate governments in the region and establish a radical Islamic
empire that spans from Spain to Indonesia.
28
Prime Minister Blair has recently adopted a
similar approach, identifying an arc of extremism stretching across the Middle East and
touching countries far outside that region. He argues that This is war, but of a completely
unconventional kind between the arc of extremism and the alliance of moderation.
He claims that the terrorist attacks in the USA, the UK, Spain, Indonesia, Algeria,
Afghanistan and Iraq, the continuing conict in Lebanon and Palestine is all part of the
same thing.
29
Goal V, to prevent our enemies from threatening us, our allies and our friends with
WMD, repeats the 2002 principle that the duty to protect the American people obligates
the government to anticipate and counter threats, using all elements of national power,
before the threats can do grave damage. The summary of the 2002 strategy says: The
greater the threat, the greater is the risk of inactionand the more compelling the case
for taking anticipatory action to defend ourselves, even if uncertainty remains as to the
time and place of the enemys attack. There are few greater threats than a terrorist attack
27 2006 US National Security Strategy, 9.
28 President Bush speech, National Endowment for Democracy, 6 October 2005 www.whitehouse.gov/news/
releases/2005/10/20051006-3.html.
Australia also argues that 21st century terrorism differs from the terrorism of the 1970s and 80s. It is more
strategically focused. Its objective is to roll back Western values, engagement and inuence, and to weaken
and ultimately supplant moderate Islamic governments. (Australias National Security Strategy: A Defence
Update 2003, 11).
29 Speech to the World Affairs Council in Los Angeles, 1 August 2006, www.number10.gov.uk/output/Page 9948.
See also the series of three speeches on foreign policy given on 21 March, 26 March, 26 May 2006, ibid, 9224,
9245, 9549.
The Prime Minister links the struggle against terrorism in Algeria, Chechnya, Kashmir, Madrid, London and
Paris as the same as the struggle against the terrorist acts of Hizbullah in Lebanon or the PIL in Palestine or the
rejectionist groups in Iraq.
562 Chinese JIL (2006)

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with WMD.
30
This language is exactly the same as in 2002. But then comes a slight shift:
To forestall or prevent such hostile acts by our adversaries, the United States will, if necess-
ary, act pre-emptively in exercising our inherent right of self-defense. (My italics) The words in
italics are new and were not present in the 2002 version. They make it clear that the basis for
pre-emption is self-defence. This may be taken as an implicit reference to Article 51 of the
UN Charter and to the controversial doctrine of the preservation of an inherent right of
self-defence going beyond the right to act in self-defence against an armed attack.
31
But the Strategy does not consider the compatibility of US policy with international law.
The claim of a right to take pre-emptive action in self-defence is not expressed in terms of a
call for a change in the law, nor is it expressly based on the existing law. There is no explicit
reference to international law in the 2006 Strategy. In 2002, the National Security Strategy
had famously said that international law recognized that the use of force against imminent
attack was permissible and had gone on We must adapt the concept of imminent threat
to the capabilities and objectives of todays adversaries. Now there is nothing at all on inter-
national law in the sections on the right of pre-emptive action, an apparent reection of the
hostility, indifference or contempt for international law felt by many neo-conservatives inu-
ential in the Bush administration.
The 2006 National Security Strategy repeats the words of the 2002 Strategy: If necessary,
however, 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 enemys
attack and then adds The reasons for our actions will be clear, the force measured, and
the cause just.
32
These new words do not give any specic guidance on the use of force.
This section is no more informative on the limits of pre-emptive action than it had been
in 2002; it is still not clear what will trigger pre-emptive force and what is the proper
scope of such action.
Not only is there no mention of international law on the law of force, but also there is
almost no reference to the UN in the 2006 Strategy. As in the 2002 Strategy, there is no
recognition of the primary role of the Security Council in the maintenance of international
peace and security.
33
Goal VIII reafrms the 2002 aim to develop agendas for cooperative
action with the other main centers of global power, but there is no emphasis on the UN
or other traditional alliances here. There is less, and generally less favourable, reference to
NATO than there had been in 2002; there is, moreover, a strong call for it to accelerate
its internal reform, as demanded in 2002.
34
The main focus is on ad hoc coalitions such
as the Proliferation Security Initiative.
30 2006 US National Security Strategy, 18.
31 Gray, International Law and the Use of Force (2nd edn. 2004), 98.
32 2006 US National Security Strategy, 23.
33 The Strategy mentions the UNs Democracy fund and the need to work with the UN and regional organizations
to help implement their democratic commitments. In Goal 5, it highlights the role of the USA in securing passage
of SC Resolution 1540, but there is nothing else on the UN in this section. At end, the Strategy stresses the need
to promote reform of the UN.
34 2006 US National Security Strategy, 38.
Gray, The 2006 National Security Strategy of the USA 563

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III.D. Rogue States2002 and 2006
In 2002, the Strategy identied the most serious challenges to US national security as
emanating from the dual threat of rogue States developing WMD and of terrorists who
might acquire such weapons. It singled out Iraq and North Korea, and said We must be
prepared to stop rogue States and their terrorist clients before they are able to threaten or
use weapons of mass destruction against the United States and our allies and friends.
35
In the 2006 Strategy, the focus shifts to Iran and Syria as State sponsors of terror: Some
states such as Syria and Iran continue to harbor terrorists at home and sponsor terrorist
activity abroad.
36
In the context of proliferation of WMD, the Strategy singles out Iran
again: We may face no greater challenge from a single country than from Iran.
37
This
is not only because of its attempts to develop nuclear weapons, but also because of
broader concerns. The Iranian regime sponsors terrorism; threatens Israel; seeks to thwart
Middle East peace; disrupts democracy in Iraq; and denies the aspirations of its people for
freedom.
38
In several important aspectsthe support for pre-emptive self-defence, the lack of respect
for international law, the failure to acknowledge a role for the UN and the express identi-
cation of rogue Statesthere is a marked contrast between the 2006 US National Security
Strategy and the 2003 EU Security Strategy.
IV. EU Security Strategy 2003: a secure Europe in a better world
The EU issued its rst joint security strategy in December 2003.
39
This 14-page document
was designed to be a counterpart to the US National Security Strategy, and there are many
similarities between the two documents. Under the heading Key Threats, it says Large-scale
aggression against any member state is now improbable. Instead, Europe faces new threats
which are more diverse, less visible and less predictable.
40
The European Strategy identies
ve threats: terrorism, the proliferation of WMD, regional conicts, state failure and
organized crime. In its discussion of Strategic Objectives, the Strategy says: Our
traditional concept of self-defenceup to and including the Cold Warwas based on
the threat of invasion. With the new threats, the rst line of defence will often be abroad.
The new threats are dynamic. The risks of proliferation grow over time; left alone, terrorist
networks will become ever more dangerous. State failure and organized crime spread if they
are neglectedas we have seen in West Africa. This implies that we should be ready to act
before a crisis occurs. Conict prevention and threat prevention cannot start too early.
41
35 2002 US National Security Strategy, 14.
36 2006 US National Security Strategy, 9.
37 2006 US National Security Strategy, 20.
38 Ibid.
39 ue.eu.int/uedocs/cmsUpload/78367.pdf.
40 Ibid, 3.
41 Ibid, 6.
564 Chinese JIL (2006)

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But the EU still is not prepared to adopt the doctrine of pre-emptive self-defence. It did
accept that the law may need to be adapted to meet new needs; the Strategy includes the
general statement: It is a condition of a rule-based international order that law evolves in
response to developments such as proliferation, terrorism and global warming.
42
But
there is nothing more express. This is a clear indication that the doctrine of pre-emption
is not generally accepted international law. Whereas the USA singled out Syria and Iran,
the EU did not identify them by name, saying only that A number of states have placed
themselves outside the bounds of international society.
43
In marked contrast to the US 2006 National Security Strategy, the European instrument
emphasizes international law and the role of the UN. It includes a section on World
Order based on Effective Multilateralism: We are committed to upholding and developing
International Law. The fundamental framework for international relations is the UN
Charter. The UN Security Council has the primary responsibility for the maintenance of
international peace and security.
44
Even if this is mere lip-service, it still represents a
quite different approach from that of the USA.
V. The re-examination of the law on the use of force
The events of 9/11, the 2002 National Security Strategy and Operation Iraqi Freedom all
prompted a fundamental debate about the law on the use of force. States and writers
addressed the questions whether there is now a war on terror which requires the law to be
changed to allow for pre-emption against rogue States and terrorists and for a wide right
of self-defence against non-State actors, and whether the war on terror has an impact on
the doctrine of humanitarian intervention in that forcible intervention in States without
effective government may now be necessary to stop the continuation of conditions in
which terrorists operate. Several States accepted that a reappraisal of the law was needed.
Some have taken up the call in the 2002 US National Security Strategy for a re-examination
of the imminence requirement in self-defence.
The UN Secretary-General also accepted that there is a new threat facing the world, that of
international terrorism and the danger of proliferation of WMD. The serious divisions
between Statesapparent over Operation Iraqi Freedomas to how to address these new
threats led him to set up a High Level Panel to examine todays global threats, to identify
the contribution to be made by collective action, and to recommend any necessary changes
in the UN system.
45
The High Level Panel issued its report in December 2004.
46
The
Secretary-General then issued his own report, In Larger Freedom, in March 2005.
47
Both
42 Ibid, 10.
43 Ibid, 10.
44 Ibid, 9.
45 www.globalpolicy.org/secgen/annan/2003/0923gaaddress.htm.
46 Report: A More Secure World: Our Shared Responsibility, UN Document A/59/565.
47 UN Document A/59/2005, 21 March 2005.
Gray, The 2006 National Security Strategy of the USA 565

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reports addressed the issue of self-defence; they considered whether the right should be
expanded in the light of the new threats and whether the UN Charter should be
amended. Both reports took the controversial view that there is an existing right under
international law of anticipatory self-defence against imminent attack. The Panel did so
on the basis that this was customary international law; the Secretary-General on the basis
that anticipatory self-defence was permissible under Article 51 of the UN Charter. The
UN Secretary-General uncritically accepted the High Level Panels view that anticipatory
self-defence was lawful, even though this was controversial and even though the
Non-Aligned Movement had made it clear that this was not acceptable to them.
48
However, both reports rmly rejected any wider right of pre-emptive self-defence going
beyond anticipatory self-defence in the face of an imminent attack. They said that if there
were no imminent threat then it would be for the Security Council rather than individual
States to take pre-emptive action.
A UN World Summit was then held in September 2005 to consider the reform of the UN
in order to meet the challenges of the 21st century, and in particular, the challenge to the
collective security system arising out of the divisions over the invasion of Iraq. It had the
two reports before it, but the World Summit Outcome Document did not follow their pos-
ition on anticipatory self-defence. It said simply that the relevant provisions of the Charter
are sufcient to address the full range of threats to international peace and security.
49
The
World Summit showed clearly the continuing deep divisions between States on the law on
the use of force. A majority of States were not willing to accept anticipatory, let alone
pre-emptive self-defence. There has been little progress in developing a new doctrine and
signicant resistance to any major change. There is little sign of any widespread acceptance
of a new doctrine of pre-emption even by Western States. NATO does not include such a
doctrine in its security strategy. There have been some indications that Japan (as against
North Korea) and Russia (as against terrorism) support pre-emptive self-defence, but it is
still not clear that they go as far as the 2006 US National Security Strategy.
50
Of those States which have proved themselves among the strongest military supporters of
USA, Australia has given some support for pre-emption. It issued Australias National
Security Strategy: A Defence Update 2003 before the action against Iraq was initiated. This
referred in general terms to the need for military operations to prevent the proliferation of
WMD, including to rogue States or terrorists, where peaceful efforts have failed.
51
But it
did not say anything more express on pre-emptive action. In the general election campaign
of 2004, Prime Minister Howard repeated his earlier support for pre-emptive military force
against terrorists: he said that this had not just been a one-off response after the terrorist
48 See NAM Comments on the High Level Panel Report, 28 February 2005, www.un.int/malaysia/NAM/
NAM.html para. 2628; UN Document A/59/PV.85, 1415.
49 UN Document A/60/L.70, 15 September 2005, para. 79.
50 Below n.58 and 59.
51 defence.gov.au/index.cfm, Australias National Security Strategy: A Defence Update 2003, 16.
566 Chinese JIL (2006)

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attack on Bali in which many Australians were killed in February 2003.
52
However, there is
no express statement of this position in the 2005 Defence Update.
53
In the UK, with a government that is another strong supporter of US foreign policy since
9/11, Parliaments Foreign Affairs Committee responded to the terrorist attacks on the
World Trade Centre by suggesting that there was a need to re-examine the scope of the
right of self-defence and the requirement of an imminent attack; but the government rejected
this suggestion.
54
Both have subsequently shifted their positions, and most recently, the
Committee has even questioned the governments long-held position that there is a right
of anticipatory action. The UK government was clearly not happy with this and reasserted
its traditional view that there is a right of anticipatory self-defence.
55
Prime Minister Blair
is determined to develop UK foreign policy and has made a series of major speeches.
These have included general statements on pre-emption, but he has not yet expressly sup-
ported a right of pre-emptive self-defence.
56
The strongest indication that the UK might be ready to follow the USA on pre-emption as
on so much of foreign policy, came in a speech by John Reid, the then Secretary of State for
Defence, on 3 April 2006.
57
He said that, given that the UK faced a new enemy, non-state
actors capable of operating on a global scale, crossing international borders, exploiting the
teachings of a great, peaceful religion as justication for their murderous intent, there
was a need to consider whether the existing international legal framework adequately
covered the contemporary threat from international terrorists, the circumstances in which
States might need to take action to avert an imminent attack. On pre-emption he said,
Another specic area of international law we perhaps need to think more about is
whether the concept of imminencei.e. the circumstances when a state can act in self-
defence without waiting for an attackis sufciently well-developed to take account of
the new threats faced. The UK Attorney-General in 2004 had said that international law
permits the use of force in self-defence against an imminent attack, but does not
authorize the use of force to mount a pre-emptive strike against a threat which is more
remote. John Reid said that there was now a need to consider this again. What if we dis-
covered a terrorist group in the nal stages of preparing an attack with WMD? But this is
all still very tentative.
Japan has made repeated assertions that it might take action in pre-emptive self-defence
against North Korea, rst in 2003, and more recently in response to North Koreas
test-ring of ballistic missiles in July 2006. Japanese ministers raised the possibility of a pre-
emptive strike on missile bases in North Korea; they suggested that Japan should develop
52 Keesings (2004), 46210.
53 defence.gov.au/update/2005/.
54 Response of the Secretary of State for Foreign and Commonwealth Affairs to the Second Report of the Foreign
Affairs Committee, Session 20032004, Cm 5793, 8.
55 Foreign Affairs Committee 7th Report, 29 July 2004, para. 415429.
56 Above n.29
57 Royal United Services Institute for Defence and Security Studies, UK, 3 April 2006, (www.mod.uk/
DefenceInternet/DefenceNews/DefencePolicyAndBusiness/ReidAddress).
Gray, The 2006 National Security Strategy of the USA 567

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the technology that would enable pre-emptive strikes. According to newspaper reports, the
Japanese defence minister said that, if there were no other option, attacking the launch base
of a guided missile was within the constitutional right of self-defence, and there was a need
to deepen discussion of the scope of self-defence. South Korea responded in a hostile
manner, saying that Japans comments exposed Japans tendency to invade other nations.
58
Russia has recently passed legislation which apparently allows the pre-emptive use of force
against suspected terrorist targets outside Russian borders.
59
This conrms the position taken
by Russia in the General Debate of the General Assembly in September 2005, when it said,
Also of crucial importance was the issue of states exercising their right to individual and
collective self-defence in case of external terrorist attack or imminent threat of such attack.
The Russian Federation and some other states that had become targets of terrorist attacks
originating from beyond their borders had no right to fail in the eyes of their citizens, who
had entrusted their security to them.
60
But this claim does not go beyond the right to
respond to imminent attacks, and it does not go beyond the context of terrorism.
In its decisions and opinions since September 2002, the International Court of Justice
(ICJ) has given no indication that it is prepared to accept a wide doctrine of pre-emptive
self-defence. Rather it has tended to avoid difcult questions on the use of force in the
Wall Advisory Opinion
61
and in Armed Activities on the Territory of the Congo (DRC
v. Uganda);
62
in those cases, it followed the restrictive approach to self-defence it had
taken earlier in the Nicaragua case
63
and in Iranian Oil Platforms.
64
There it had not
pronounced on anticipatory or pre-emptive action; the Court had explicitly stated that it
expressed no view on that issue. In the DRC v. Uganda case, as earlier in Nicaragua,
the parties had relied only on the right of self-defence in the case of an armed attack
which has already occurred, and the issue of the lawfulness of a response to an imminent
threat of armed attack has not been raised.
65
However, in DRC v. Uganda, the Court
did note that Uganda had failed to produce evidence of armed attacks that had already
occurred against Uganda at the hands of the DRC or those for whom the DRC was
responsible. Rather, the Ugandan evidence was that its use of force was necessary to secure
Ugandas legitimate security interests. The specied security needs were essentially
preventativeto ensure that the political vacuum in the border area did not adversely
affect Uganda, to prevent attacks from genocidal elements, to be in a position to safeguard
58 Keesings (2003), 45239; Washington Post, 11 July 2006; New York Times, 12 July 2006.
59 The State Duma passed this on 22 February 2006; the Federal Council on 1 March, and the President signed it
on 7 March 2006 (Keesings (2006), 47119).
60 UN Document GA/10389, 18 September 2005.
61 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 ICJ Reports; 2004
(43) ILM 581.
62 DRC v. Uganda, 2005 ICJ Reports; 2006 (45) ILM 271.
63 1986 ICJ Reports 103. The Eritrea/Ethiopia Claims Commission also took a narrow view of self-defence in
Ethiopias ius ad bellum Claims 18, 2006 (45) ILM 430.
64 2003 ICJ Reports 161.
65 DRC v. Uganda, 2005 ICJ Reports, para. 143; Nicaragua case, 1986 ICJ Reports, 103, para. 194.
568 Chinese JIL (2006)

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Uganda from irresponsible threats of invasion, to deny the Sudan the opportunity to use the
territory of the DRC to destabilize Uganda.
66
Thus the Court did indicate that it would not
accept purely pre-emptive action as self-defence. And later in the judgment, in the section on
the prohibition of the use of force, the Court said that Article 51 of the Charter may justify
a use of force in self-defence only within the strict connes there laid down. It does not allow
the use of force by a State to protect perceived security interests beyond these parameters.
Other means are available to a concerned State, including, in particular, recourse to the
Security Council.
67
All these developments show that it is not possible to argue that there is wide acceptance of
a Bush doctrine of pre-emptive self-defence.
VI. Humanitarian intervention and the 2006 National
Security Strategy
As was mentioned earlier, a major focus of the 2006 US National Security Strategy is on
democracy and its power to transform. Does this stress on the promotion of freedom
lead the USA to call for pro-democratic invasion, regime change or humanitarian
intervention? The USA certainly does not expressly support the use of force to implement
democracy in the Strategy. It spells out at length the tools at the disposal of the USA to
end tyranny and promote effective democracy, but it does not include in this list any
right to use force for these ends. This is a further indication that the USA, despite its
willingness to call for regime change in States such as Afghanistan and Iraq, does not
wish openly to espouse any doctrine of pro-democratic invasion.
68
The UK has not accepted
a legal doctrine of regime change. But recently, in his speech of 1 August 2006, intended to
initiate a renaissance of foreign policy, Prime Minister Blair adopted new language. He
now argues that ever since 9/11, the USA has embarked on a policy of intervention in
order to protect its and our future security. Hence Afghanistan. Hence Iraq. Hence the
broader Middle East initiative in support of moves towards democracy in the Arab world.
The point about these interventions, military and otherwise, is that they were not just
about changing regimes but changing the values systems governing the nations concerned.
The banner was not actually regime change, it was values change.
69
However, it
seems that this new doctrine is not being put forward as a legal doctrine justifying the use
of force.
The 2005 UN World Summit had accepted a doctrine of a responsibility to protect in
its nal Outcome Document; this doctrine proved more appealing to States than the earlier
doctrine of humanitarian intervention had been.
70
Members of the UN had before them
66 DRC v. Uganda, 2005 ICJ Reports, para. 143.
67 Ibid, para. 148.
68 Gray, International Law and the Use of Force (2nd edn. 2004), 49.
69 Speech to the World Affairs Council in Los Angeles, 1 August 2006, (www.number10.gov.uk/output/
Page 9948).
70 UN Document A/60/L.1, 15 September 2005, paras 138140.
Gray, The 2006 National Security Strategy of the USA 569

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the reports of the High Level Panel
71
and of the Secretary-General
72
which both supported
the doctrine of a responsibility to protect in cases of genocide and other large-scale killing,
ethnic cleansing or serious violation of international humanitarian law. Supporters have
hailed this as a major achievement. However, some scepticism is called for. The Outcome
Document left unclear the critical question whether forcible unilateral action in exercise of
the responsibility to protect might be lawful when it was not authorized by the Security
Council. Many States have expressed their opposition to such unilateral use of force.
73
It is signicant that the USA says very little on this issue in its 2006 National Security
Strategy. Even though it has accepted that States without effective government pose a
threat in the context of the war on terror, the USA in the 2006 National Security Strategy
does not openly espouse the doctrine of the responsibility to protect in cases of humani-
tarian crisis. There is a passing mention of this issue in Goal IV Work with Others to Defuse
Regional Conicts. Under the heading Genocide, it says Where perpetrators of mass killing
defy all attempts at peaceful intervention, armed intervention may be required, preferably by the
forces of several nations working together under appropriate regional or international
auspices.
74
It is not absolutely clear what the USA is saying here, but it could reasonably be
interpreted as implying support for a right of unilateral action, at least in cases of genocide.
The EU Security Strategy, produced before the World Summit, also does not include any
express mention of humanitarian intervention, despite the strong support for this doctrine by
the UK.
VII. The use of force against non-State actors and the
2006 Strategy
The focus on the war on terror in the 2006 Strategy necessarily raises the issue of the current
state of the law on the use of force by and against non-State actors. The Strategy says that the
need for action on WMD requires newapproaches: both offences and defences are necessary
to deter State and non-State actors, through denial of the objectives of their attacks and, if
necessary, responding with overwhelming force.
75
This passing reference to the use of force
against non-State actors is not further elaborated on in the Strategy. There has been much
discussion as to whether international law after 9/11 allows self-defence against a States ter-
ritory if there has been an armed attack by non-State actors operating from that territory,
even in the absence of direct involvement by the State in that attack. In the 2006 Strategy,
the USA and its allies in the war on terror make no distinction between those who commit
acts of terror and those who support and harbour them, because they are equally guilty of
71 UN Document A/59/565, para. 199203.
72 UN Document A/59/2005, 21 March 2005, para. 122, 135.
73 UN Document GA/10337, 10338, 10339, 68 April 2005; see also NAM Comments on the High Level Panel
Report, 28 February 2005, (www.un.int/malaysia/NAM/NAM.html), para. 2628; UN Document A/59/
PV.85, 1415.
74 2006 US National Security Strategy, 17.
75 2006 US National Security Strategy, 22.
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murder.
76
If there is such a right to use force, then does this arise only in relation to attacks
by terrorists, or does it apply to all irregular forces? Can this be a pre-emptive action in that it
is designed to pre-empt future attacks by non-State actors? If so, how can its proportionality
be determined? This question of the scope of the right to use force against non-State actors is
crucial in any assessment of the legality of the recent attacks by Israel against Lebanon.
77
Many commentators have asserted that the ICJ addressed and decided this important
doctrinal issue in the Wall Advisory Opinion (2004)
78
and that it rejected the possibility of
self-defence against non-State actors. In fact it did not go so far. The Courtprobably
wiselyactually avoided pronouncing on the question of self-defence against a non-State actor
in two recent cases, the Wall Opinion and also DRC v. Uganda (2005).
79
It attracted some
criticism for so doing. However, its caution illustrates the divisive nature of this issue and the
uncertain state of the law. Its discussion of self-defence in the Wall Opinion was very brief; so,
perhaps, the common misinterpretation of paragraph 139 of its judgment is not surprising.
The Court said that Article 51 of the Charter thus recognizes the existence of an inherent
right of self-defence in the case of armed attack by one State against another State. However,
Israel does not claim that the attacks against it are imputable to a foreign State.
80
This does
not say that Article 51 limits self-defence to such cases or that it only allows self-defence in
the case of an armed attack by a State. It simply makes clear that Israel is not relying on this
part of the right of self-defence. The Court then goes on to consider whether Israel has the
right of self-defence against non-State actors. The paragraph continues: The Court also
notes that Israel exercises control in the Occupied Palestinian Territory and that, as Israel
itself states, the threat which it regards as justifying the construction of the wall originates
within, and not outside, that territory. The situation is thus different from that contemplated
by Security Council Resolutions 1368 (2001) and 1373 (2001), and therefore Israel could
not in any event invoke those resolutions in support of its claim to be exercising a right
of self-defence. Consequently, the Court concludes that Article 51 of the Charter has no rel-
evance in this case. This seems to me to leave open the possibility of self-defence against
non-State actors in other situations and to avoid taking a position on the issue of principle.
But many have read more into the Courts judgment and have been critical of it. Judges
Higgins and Buergenthal both attacked the formulation of the Courts judgment.
81
In DRC v. Uganda, the Court again chose to avoid the question. Uganda argued that the
DRC was responsible for the armed actions of Ugandan opposition forces based in the DRC
against it, and therefore that Uganda was entitled to act in self-defence against the DRC; but
it failed to provide any satisfactory proof of the DRCs involvement in these attacks, direct or
indirect. The Court held that Uganda was therefore not entitled to act in self-defence against
76 Ibid, 12.
77 Below n. 96.
78 2004 ICJ Reports; 2004 (43) ILM 581.
79 2005 ICJ Reports; 2006 (45) ILM 271.
80 Wall Opinion, para. 139
81 Judge Higgins Separate Opinion; Judge Buergenthal Declaration. However, Judge Higgins accepted that the doc-
trine of self-defence could not be used to justify the construction of the wall as it was not a forcible action.
Gray, The 2006 National Security Strategy of the USA 571

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the DRC. The line of reasoning in this part of the Courts judgment is rather obscure, but it
does say clearly that the Court has no need to respond to the contentions of the parties as
to whether and under what conditions contemporary international law provides for a right of
self-defence against large-scale attacks by irregular forces.
82
Judges Kooijmans
83
and
Simma
84
were very critical of the Courts failure to consider this issue, especially given the
controversy surrounding this subject since the 2002 US National Security Strategy. Interest-
ingly, Judges Higgins and Buergenthal, who had been critical of the Court for its failure to
address this issue in the Wall Advisory Opinion, did not now show the same concern in this
case. Neither published any individual opinion.
VII.A. Israel and Lebanon 2006
The issues raised by the US National Security Strategy concerning the scope of the right to use
forcethe legality of pre-emptive force, the question of what will trigger pre-emptive action,
the scope of self-defence against non-State actors such as terrorists and against their rogue
State sponsors, the role of the UNhave all arisen with regard to the recent conict
between Israel and Hizbollah. The conict in Lebanon and the international response to
it demonstrate a deep doctrinal divide on the scope of self-defence, in particular with
regard to proportionality. The central question is whether the war on terror gives Israel a
wide right to use force, even a pre-emptive right.
It is commonly said that the conict began on 12 July 2006 when Hizbollah launched a
cross-border attack on Israeli forces in northern Israel, killed three Israeli soldiers and abducted
two.
85
The UN Secretary-General condemned the Hizbollah attacks and called for the release
of the Israeli captives.
86
The same day, Israel wrote to the UNSecurity Council saying that the
attack was a clear declaration of war and reserving the right to act in self-defence.
87
There was
a heavy exchange of re and Israel mounted increasingly extensive attacks on Lebanon. Its use
of force by land, sea and air continued for a month and involved massive destruction. The UN
reported that Israel destroyed roads, airports, bridges, ports, power stations, as well as thou-
sands of houses. The Israeli attacks caused about 1000 civilian Lebanese deaths, injured
over 3500 and displaced almost a million people.
88
The air, sea and land blockade of
Lebanon continued after the ceasere. During the conict, Hizbollah red hundreds of
rockets into Israel, causing 50 civilian casualties and an estimated 114 military deaths and
disrupting the lives of hundreds of thousands of civilians.
89
82 2005 ICJ Reports, para. 147.
83 Judge Kooijmans, Separate Opinion, paras. 2535.
84 Judge Simma, Separate Opinion, paras. 415.
85 UN Document S/2006/560, 21 July 2006, Secretary-Generals Report on UNIFIL, for an account of the
outbreak of the conict.
86 UN Document SG/SM/10563, 12 July 2006.
87 UN Document S/2006/515, 12 July 2006.
88 UN Press Releases, Humanitarian Fact sheets on Lebanon, IHA/1215, 11 August 2006; IHA/1216, 14 August
2006.
89 UN Press Release, SC/8808, 11 August 2006.
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The question arose whether Israel had the right of self-defence against such attacks and
how far its response was proportionate. Israels letter of 12 July 2006 to the Security
Council was brief. It reserved the right to act in accordance with Article 51 of the UN
Charter and exercise its right of self-defence when an armed attack is launched against a
Member of the UN.
90
This is a cautious formulation, based on the universally agreed prin-
ciple that there is a right of self-defence in response to an actual armed attack. As it turned
out, Israels use of force went rather beyond this narrow right.
States were divided in their response to the conict. This may be seen clearly in the
Security Council debates.
91
Initially at the rst meeting held after the outbreak of the con-
ict, most members of the Security Council seemed sympathetic to Israels claim to self-
defence. Only China and Qatar (and, to a lesser extent, Ghana) openly condemned the
Israeli actions at this stage. All the European members of the Security Council apart from
Russia asserted that Israel had a right to self-defence. Interestingly, the USA made no
mention of self-defence at this meeting. Japan, Peru, Argentina and Tanzania also said
that Israel had a right of self-defence. The States supporting this right did so in rather
general terms which left the scope of the doctrine unclear.
92
Many States accepted that the incidents of 12 July 2006 were the start of the conict. The
UN Secretary-General said that Hizbollahs provocative attack on 12 July was the trigger of
this crisis.
93
But other contested this; they said there was no right of self-defence. It was
important not to take the minor incident of 12 July out of context; this was one in a
series of cross-border incidents and should be seen in the context of the history of the
region and Israels continued occupation of the Palestinian territories and the Golan
Heights.
94
The UN Secretary-Generals Report on the UN Interim Force in Lebanon
(UNIFIL) of 21 July 2006 listed a long sequence of such cross-border incidents
pre-dating 12 July.
95
Thus, for example, in February 2006, there had been a series of
cross-border incidents following the alleged shooting by Israeli troops of a Lebanese
shepherd. In May 2006, there was a rocket attack from Lebanon on an Israeli Defence
Force base in north Israel; in response, the Israeli air force attacked Palestinian bases
inside Lebanon. It was also reported that Israeli forces were responsible for the
targeted assassination of an Islamic jihad leader in Sidon. Such cross-border incidents
were commonplace in the years following the Israeli withdrawal from Lebanon in 2000.
Over the years, Hizbollah had red many rockets from Lebanon over the border into
Israel; Israel had conducted what the Secretary-Generals Report called persistent and
90 UN Document S/2006/515, 12 July 2006.
91 UN Documents S/PV 5489, 14 July 2006; S/PV 5493, 21 July.
92 UN Document S/PV 5489, 14 July 2006; UN Press Release SC/8776, 14 July 2006.
93 UN Press Release SC/8781, 20 July 2006.
94 This was the position of Qatar on 14 July and of many Arab states in the 20 July meeting.
95 UN Document S/2006/560, 21 July 2006.
Gray, The 2006 National Security Strategy of the USA 573

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provocative air incursions over Lebanon. But previous incidents had not led to such a
massive response by Israel since 1982.
96
VII.B. Non-State actors
This conict raises the question of the degree of State complicity, if any, necessary to justify a
forcible response against a State from which non-State actors are operating. Although many
States accepted Israels right to self-defence, it is not clear from their statements in the
Security Council debates whether they accepted that Israel was entitled to use force
against Hizbollah in the absence of complicity of Lebanon. Israel itself was careful to
attribute responsibility to Lebanon; in its letter to the Security Council on 12 July, it
said, Responsibility for this belligerent act of war lies with the Governments of Lebanon
from whose territory these acts have been launched into Israel. Responsibility also lies
with the Government of Iran and Syria, which embrace and support those who carried
out this attacks.
Lebanon said that it was not responsible for the actions of Hizbollah and accused Israel of
an act of aggression.
97
At the rst Security Council debate on the conict, Lebanon regretted
that Israel had held Lebanon responsible for Hizbollahs acts, even though the Lebanese gov-
ernment had issued a statement on 12 July, declaring that it was not aware of the incident,
that it did not take responsibility for it and did not endorse what had happened.
98
Since the
departure of the Syrian forces from Lebanon in 2005 following Security Council Resolution
1559 (2004), Lebanon had worked to regain independence with a full commitment to the
Council resolutions.
99
Israels aggression had hampered the efforts exerted towards fostering
democracy, since it undermined Lebanons sovereignty and attempts to exercise its authority
over its entire territory.
100
VII.C. The role of the UN
The UN Security Council played a very limited role in the conict; it was effectively
side-lined (as in the 2006 US National Security Strategy) in what the USA, the UK and
Israel portrayed as part of the war on terror. The USA and the UK indicated that they
96 In many regards, the 2006 conict mirrors that of 1982 when a terrorist attack on the Israeli ambassador in
London triggered a massive invasion, the siege of Beirut and the occupation of southern Lebanon for nearly
20 years. In that case, there was limited international support for Israel; its invasion and prolonged occupation
were seen as clearly disproportionate (1982 UNYB 428497).
97 UN Document S/2006/529, 17 July 2006.
98 UN Documents S/2006/518, 13 July 2006; UN Press Release SC 8776, 14 July 2006.
99 For an account of Syrias presence in Lebanon, see Gray, International Law and the Use of Force (2nd edn.
2004), 8587. Syrian forces had been present in Lebanon at the invitation of the government since the civil
war of 197576. From 2004, the USA and France exerted strong pressure on Syria to secure its withdrawal;
they secured the adoption of SC Resolution 1559 (2004) calling for the withdrawal of all foreign forces and
the disbanding of all militias. Elections held in 2005 produced a coalition government of national unity, includ-
ing two members of Hezbollah: Keesings (2005), 46759.
100 UN Document S/PV.5489; UN Press Release SC/8776, 14 July 2006.
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would not accept a call for an immediate ceasere by the G8 or by the Security Council, even
though Lebanon had called for a ceasere from the start of the conict and even though the
UN Secretary-General had subsequently supported this call, saying that the authority and
standing of the Security Council were at stake if it did not play a role in securing an end
to the conict.
101
The Non-Aligned Movement and ASEAN also called for a ceasere.
102
However, the USA and the UK said that it was necessary to secure a durable and sustainable
ceasere: the violence would end only when Hizbollah had been disarmed or removed from
the border. The UK and the USAwere not willing to allow the Security Council to call for an
immediate end to the ghting. This was taken as a green light by Israel to continue its mili-
tary campaign.
103
VII.D. Proportionality
Israels massive use of force was clearly not proportionate if seen as a response to the events of
12 July 2006 or to past attacks by Hizbollah, even if those attacks could be taken cumulat-
ively.
104
Israel claimed that its acts were aimed at Hizbollah, not at Lebanon; they were
targeted at Hizbollah strongholds and infrastructure, not at civilian targets.
105
Lebanon
strongly rejected this argument; it said from the start it had been clear that it was not
Hizbollah that was the target, but Lebanon. Its infrastructure was the target and hundreds
of civilians had been killed before Israel had even taken up any campaign against Hizbollah
and its positions.
106
The Secretary-General also seemed sceptical about Israels claim.
107
Most States condemned Israels use of force as disproportionate.
108
A few members of the
Security Council were not willing to do this; they merely called on Israel to ensure that its
acts were not disproportionate.
109
But many others such as France and Argentina which had
initially asserted that Israel had a right to self-defence subsequently condemned its actions.
India, Brazil, Chile, Djibouti, Switzerland and New Zealand, as well as many Arab States, all
condemned the excessive use of force. China did not repeat its earlier strong denunciation of
the armed aggression of Israel against Lebanon, but simply condemned attacks targeting civi-
lians and civilian infrastructure in general terms. It urged all parties concerned to exercise
maximum restraint.
110
101 Lebanon called for an immediate ceasere in UN Press Release SC/8776, 14 July 2006, UN Document S/
2006/500, 19 July 2006. The Secretary-General also called for a ceasere in UN Press Releases SC/8781,
20 July 2006, SC/8790, 30 July 2006.
102 UN Documents S/2006/548, 19 July 2006, S/2006/569, 25 July 2006.
103 The Guardian, 14, 19, 27 July 2006; 2, 10 August 2006; Speech by Tony Blair, 18 July 2006, (www.num-
ber10.gov.uk/output/Page 9870.asp).
104 Gray, International Law and the Use of Force (2nd edn. 2004), 125126.
105 UN Document S/PV 5493, 21 July 2006.
106 UN Press Release SC/8789, 30 July 2006; see also SC/8808, 11 August 2006.
107 UN Press Release SC/8781, 20 July 2006.
108 UN Press Release SC/8781, 20 July 2006.
109 States like the UK, Denmark and Greece.
110 UN Document S/PV 5493, 21 July 2006.
Gray, The 2006 National Security Strategy of the USA 575

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But Israel, the USA and the UK demonstrated a different understanding of proportion-
ality in this case. Israel said in its letter to the Security Council, These acts pose a grave
threat not just to Israels northern border, but also to the region and the entire world.
It argued that the conict should be seen as part of the war on terror. In this vacuum
[of southern Lebanon] festers the Axis of Terror: Hizbollah and the terrorist states of Iran
and Syria, which have today opened another chapter in their war of terror.
111
Israel
argued that the aim of Hizbollah, supported by Iran, was to destroy Israel and that therefore
Israels use of force was proportionate to the threat posed by Hizbollah.
112
The conict was
portrayed as part of a wider war on terror.
113
The Secretary-Generals Special Adviser reported to the Security Council that the
Prime Minister of Israel had made clear that Israel had decided that military operations
would continue until Hizbollah was seriously weakened; this was not, as in the past, a
response to a particular incident but was a denitive response to an unacceptable
strategic threat posed by Hizbollah and a message to Iran and Syria that threats by
proxies would no longer be tolerated.
114
The actions of Israel were pre-emptive in so far
as they were designed to stop future attacks by Hizbollah. Hizbollah was portrayed as a
threat to the existence of Israel. But, however intolerable its rocket attacks on the
civilians of Israel, this is not a convincing picture, given the vast disparity of resources. As
Ghana said, The reality of Israels absolute military dominance in the region belies
the oft-repeated claim that this powerful country must take extreme measures to protect
itself, even if that means laying waste to another sovereign state that is obviously very
weak.
115
The USA and the UK accepted the Israeli position and refused to condemn Israels actions
as disproportionate or to allow a call for an immediate ceasere by the Security Council.
They used the ongoing war on terror as justication for their support for Israels campaign
to wipe out Hizbollah.
116
As John Bolton put it in the Security Council, All of us in this
Chamber face a common and shared enemy. . . That enemy is terrorism.
117
After the Secur-
ity Councils adoption of the ceasere resolution, President Bush said that responsibility for
the suffering lies with Hizbollah. It was an unprovoked attack by Hizbollah on Israel that
started this conict. Responsibility for the suffering of the Lebanese people also rests with
Hizbollahs States sponsors, Iran and Syria. The regime in Iran provides Hizbollah with
nancial support, weapons and training. Iran has made clear that it seeks the destruction
of Israel. We can only imagine how much more dangerous this conict would be if Iran
had the nuclear weapon it seeks. Syria is another State sponsor of Hizbollah. Syria allows
111 Also in UN Press Release SC/8808, 11 August 2006.
112 The Guardian, 25 July 2006.
113 UN Press Release SC/8808, 11 August 2006.
114 UN Document S/PV.5493, 21 July 2006, 45.
115 UN Document S/PV.5493, 21 July 2006, 8.
116 The Guardian, 19, 29 and 31 July 2006.
117 UN Document S/PV.5493, 21 July 2006, 16.
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Iranian weapons to pass through its territory into Lebanon. Syria permits Hizbollahs leaders
to operate out of Damascus and gives political support to Hizbollahs cause. Syria supports
Hizbollah because it wants to undermine Lebanons democratic government and regain its
position of dominance in the country.
118
A ceasere was nally agreed under Resolution 1701 (2006), passed unanimously, but the
resolution perpetuated the dispute about the scope of self-defence. The resolution seemed
weighted in favour of Israel in that it called for a full cessation of hostilities based upon,
in particular, the immediate cessation by Hizbollah of all attacks and the immediate cessation
by Israel of all offensive military operations. This left open the prospect that Israel
would take a wide view of defensive action to include further pre-emptive actions against
Hizbollah.
119
Some States expressed reservations about this language during the
negotiations and at the time of adoption.
120
And it turned out that their concerns
were justied: on 19 August, there was an Israeli air incursion into Lebanon in pursuit of
Hizbollah ghters and to block the supply of arms to Hizbollah from Syria. The
Secretary-General expressed deep concern about this breach of the ceasere.
121
Israel said
that it was acting defensively and also that it had the right to use force to implement
Resolution 1701.
122
VIII Conclusion
This conict demonstrates vividly the practical signicance of the doctrinal divide over the
scope of self-defence. Is it to be a wide pre-emptive right such as that claimed in the 2006 US
National Security Strategy to deter an existential threat to the USA and Israel by non-State
actors? The USA, the UK and Israel apparently say yes, but a majority of States condemned
Israels use of force as disproportionate. Israel has invaded Lebanon four times before, in
1978, 1982, 1993 and 1996; its use of force has not brought an end to cross-border
attacks. Many argued that the lesson of previous conicts is clear and that the use of force
cannot be a means of settling conicts in the region; a focus on the war on terror may
distort our understanding of conicts. The Security Council debates on the recent conict
show that States currently hold radically different doctrines of proportionality and implicitly
also of pre-emption. In so far, as Israel argues it is using force to address the threat of future
attacks by Hizbollah, its claim to self-defence is pre-emptive. But there was little express
118 www.whitehouse.gov/news/releases/2006/08/20060814-3.html.
119 Israel said that Thus a clear distinction is made between the two parties to the military hostilities, and Israel is
given permission by the Security Council to continue defensive actions against a terrorist organization. (Israeli
Ministry of Foreign Affairs, Behind the Headlines: UN Security Council Resolution 1701, 12 August 2006.)
120 The Arab League expressed concern during negotiations, UN Press Release SC/8804, 8 August 2006; Lebanon
also expressed dissatisfaction with Resolution 1701, UN Press Release SC/8808, 11 August 2006. See also the
letter from Qatar to the Security Council, UN Document S/2006/655, 15 August 2006.
121 UN Press Release SG/SM/10602, 19 August 2006; The Guardian, 21 August 2006.
122 Israel Ministry of Foreign Affairs, MFA: IDF Bekaa operation in response to violation of the ceasere,
20 August 2006.
Gray, The 2006 National Security Strategy of the USA 577

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discussion of the law in these debates; most States were content simply to pronounce on
proportionality and not to enter into the more fundamental debate on pre-emption. And
it is not clear how far those States unwilling to condemn Israel for disproportionate use
of force refrained from condemnation because they accepted its legal arguments and those
of the USA. What is clear, especially in the light of the 2005 UN World Summit, is that
there is still little sign of any widespread acceptance of the Bush doctrine.
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