Principle of Anticipatory Self Defense

Anticipatory self-defense is clearly the most debatable issue in modern day context;
the right of a state to exercise anticipatory self defense, which is the use of force by a
state to repel an attacker before an actual attack has taken place, before the army of
the enemy has crossed its border, and before the bombs of the enemy fall upon its
territory1. Anticipatory is a term that refers to the ability to foresee consequences
of some future action and take measures aimed at checking or countering those
consequences. As Viscount Simonds noted The law must be responsive to change,
yet it is essential that law does not yield to knee jerk urges. This thought is extremely
relevant to the ever-changing currents of global politics, which have led to grave
issues such as terrorism worldwide which are putting immense amount of anxiety on
the role of International law governing the states use of force.
Conditions for the exercise of the right of Anticipatory Self Defense
The right of anticipatory self-defense by forestalling an attack is well established in
classical international law. In 1625, Hugo Grotius in The Law of War and
Peace indicated that self-defense is to be permitted not only after an attack has
already been suffered, but also in advance, where "... the deed may be anticipated".
He further said: "It be lawful to kill him who is preparing to kill...." Similarly, in his
famous text of 1758 known as The Law of Nations, Emmerich de Vattel affirms that
"the safest plan is to prevent evil," and that to do so a nation may even "anticipate the
other's design ...".
What is the customary international law of anticipatory self-defense? The answer
begins with the Caroline case, which was discussed earlier in this paper. The right of
self-defense has been invoked countless times since this affair; sometimes rightfully,
many times as an excuse for aggressive actions. But there is no denying that the right
of self-defense has existed prior to this affair and exists since. The difference is that
there existed no international institution with a mandate to limit the use of force and
to determine whether there existed circumstances to invoke the right of self-defense.
The preconditions for anticipatory self-defense are, therefore, necessity,
proportionality, and immediacy. However, it seems reasonable to add two more
conditions: first, an action of anticipatory self-defense will only be justified if the
U.N. Security Council has not yet been able to take affirmative action2, and second, he
state against which the right of anticipatory self-defense is being exercised has to be
in breach of international law. Article 51 reads that states can only exercise their
inherent right of self-defense (including anticipatory self-defense) until the Security
Council has taken the measures necessary to maintain international peace and
security. Broadly speaking it is possible to divide academic opinion into two schools
of thought on the legal status of Article 51. The first school of thought are of the
opinion that an armed attack must have occurred before a state can lawfully act in
self-defense. Several prominent academics and jurists have contended that Article 51
and or customary international law permit the application of the doctrine of
1 Legal Analysis of US Military Responses to State-Sponsored International Terrorism, 34 NAVAL L.
REV. 1, 16 (1985) (explaining that a state may only employ anticipatory self-defense when "the
evidence of a threat is compelling and the necessity to act is overwhelming").
2 U.N. Charter art.51: Allowing Members to use Military Action to defend their territory.

anticipatory self-defense. Importantly even if the customary rule had survived, it

could be argued that this customary rule had been displaced by a contrary customary
rule that prohibits the use of force in anticipation of an armed attack.
The legal framework governing the use of force by states is a complicated blend of
treaty law and custom. The difficulties surrounding anticipatory self-defence are
caused, in part, by the distinction between the relevant treaty law and custom. Articles
2(4)3 and 51 form the foundations of the Charter regime governing the use of force.
The Effect of the charter of United Nations
While the war provided examples, political and legal development during the war led
to the creation of a new international legal standard through the United Nations. The
initial United Nations of 1942 were 26 countries united in their fight against the Axis
by a joint declaration signed in Washington on January 1, 1942. They stood against
savage and brutal forces seeking to subjugate the world. As the war was fought and
won, it further developed into a more structure organization seeking to prevent the
scourge of war from being inflicted upon humanity once more. From August 21 to
October 7, 1944, a growing membership met at Dumbarton Oak for a conference
aiming at the Establishment of a General International Organization under the title of
the United Nations. The instrument it created, the Charter of the United Nations,
stipulated a prohibition of the right to use force in international relations, providing
only two exceptions: the right of self-defence and collective security actions. The
case for collective security actions arises only under article 42, where the Security
Council has determined a situation to be a threat to international peace and security
under article 394, does not concern the case of self-defense, therefore the only concern
for this essay is the exception of article 51.
The question that arises from article 51 is to know when the right of self-defence
begins. Its wording speaks of the inherent right of individual or collective selfdefence if an armed attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain international peace and
security. From this, the explicit recognition of the right to self-defence as affirmed in
the Caroline affair is recognised as inherent to a State. But this right is conditional to
the occurrence of an armed attack. Some commentators have argued that the
expression an armed attack occurs must be construed in the contemporary
international and technological context of limited reaction time. In particular, there is
a growing tendency amongst American jurists to support exceptions to the principle of
non-intervention because of failures of government to act on their international
obligation, a need for protecting civilians against terrorist attacks and a need to uphold
their sovereignty by striking first against those who menace the international
community. Those changes are not new.

3 Article 2(4) of the UN Charter states: "All Members shall refrain in their international relations from
the threat or use of force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations."
4 Charter of the United Nations, supra, note 4 at article 39 : 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.

Twenty years ago, Dr. Polebaum published an article arguing for a broad
interpretation of article 51 to include the right of anticipatory self-defence on the basis
that technological advances in nuclear armaments and their means of delivery made a
case for a policy of first strike5
Firstly, attempting to avert war or the threat of war until it is unavoidable and
immediate must have exhausted all alternative means. Secondly, the exercise of the
anticipatory right of self-defence must be proportional to the provocation. She defined
this as alternatively as either inflicting no more damage than that inflicted by the
initial injury of the offending state, or as remaining within the confines of moral
notions of human rights Finally, there is a need to demonstrate the immediacy of the
threat. To support the application of these criterion in the contemporary context, she
asserted that the broader interpretation of article 51 is far more convincing than a
restrictive view because, according to her interpretation, the Charter of the United
Nations was drafted in a way as to either expressively prohibit a behavior or to
preserve rights. Since article 51 states that nothing shall impair the right to selfdefence and that there is no prohibition expressively stated on the matter of
anticipatory self-defence, it cannot be said to have been extinguished by the Charter
The national security strategy and The bush doctrine
The centrepiece of the "National Security Strategy" President Bush unveiled on 20-92002 is the doctrine of pre-emptive military intervention"We will not hesitate to act
alone, if necessary, to exercise our right of self-defense by acting pre-emptively." The
President had stated the doctrine earlier in an address to West Point graduates
"America must act against the terrible threats before they're fully formed," that is,
use military force against any country that possesses weapons of mass destruction
(WMD) and poses a threat to the United States. Its chapter V stipulates that this is
rooted in the changes of circumstances, mainly that terrorists and rogue States will not
be deterred from using weapons of mass destruction. Therefore, it argues that the
United States can rest upon a long-held option of pre-emptive action to counter a
threat to national security. In fact, chapter V goes as far as to say that this option has
long been recognised under international law and that the United States need not
suffer injury before they can take action to defend themselves.
The Bush doctrine is a phrase used to describe various related foreign policy
principles of the 43rd President of the United States, George W. Bush.
The Bush or the emerging threat doctrine has no basis in international law, and is
therefore illegal. The fundamental problem with the Bush doctrine is its reliance on
unilateralism. If Security Council support is not forthcoming, then unilateral action
can be taken. This coupled with the broader nature of the threat involved allows states
"more latitude in unilateral action". The principles of proportionality and necessity,
which regulated the operation of anticipatory self-defence in customary law, are
concepts absent from the Bush doctrine. The National Security Statement insists that
the greater the threat, the more compelling the case for anticipatory action "even if
uncertainty remains as to the time and place of the enemys attack." The emerging
threat doctrine alters the pre-existing customary law on anticipatory self-defence in
5 Polebaum, B.M.: National Defense in International Law : An Emerging Standard for a Nuclear Age,
(1984) 59New York University Law Review 187 at 200.

two regards. In addition to lowering the status of the threat from being imminent to
emerging, the doctrine appears to permit a great degree of guess-work regarding
firstly, the actual actions of the enemy and secondly, their intentions. Not only is
the Bush Doctrine jurisprudentially suspect, it is also strategically questionable. The
Bush Doctrines expansion of the scope of anticipatory self-defence risks setting a
dangerous precedent, which can easily be manipulated. It ignores state practice and
reciprocity, a cardinal principle of international law. To fashion a doctrine out of
preemption encourages a perception of superpower arrogance and unilateralism.
The Rule of Jus Cogens and the ICJs rulings
An issue that must be examined is that of peremptory norms or rules of jus cogens6
These are rules of an elevated status which cannot be displaced by custom or treaty
provision. If anticipatory self-defence could be classed as a rule of jus Cogens then
Article 51 or any customary rule prohibiting it could not deny it of legally binding
character. Article 53 of the Vienna Convention on the Law of Treaties 1969 declares
that a treaty is void if at the time of its conclusion it conflicts with a peremptory norm
of general international law i.e. a norm accepted as being part of a higher form of law.
In the Nicaragua vs United States the ICJ affirmed Jus Cogens as an accepted doctrine
in international law and declared that the prohibition on the use of force was a
conspicuous example of a rule of international law having the character of jus
Cogens. But despite this example of clarity there is very little agreement as to what
rules have been elevated to this status and the problem is compounded by the lack of
examples or criteria in the Vienna Convention.
The ICJ has demonstrated a marked unwillingness to engage with the issue of
anticipatory self- defence. In the Nicaragua vs. United States7 the ICJ sidestepped the
issue of anticipatory self defence presumably due to its controversial nature.
In Nicaragua, the United Nations Definition of Aggression provided the foundation
to establish the threshold for an armed attack and of the Declaration on Friendly
Relations and Cooperation Among States in Accordance with the Charter of the
United Nations. The Court concluded that self-defence could not be
invoked if the threshold of actual armed attack was not reach. In
the Nicaragua case, the provision of weapons and ammunition to El
Salvador rebels by Nicaragua was not sufficient to reach that
threshold. Therefore, it is clear that the words an armed attack
occurs speak of the actual commencement of physical violence by
armed forces. However, it is true that this does not address the
issue of when an attack is about to begin.
In Democratic Republic of Congo vs. Uganda the ICJ was unwilling to deal with the
issue of anticipatory self-defence. The ICJ in this case responded negatively to the
self-defence arguments of Uganda. The failure of the ICJ to engage properly with the
issue of humanitarian intervention only serves to perpetuate the uncertainty of Article
6 jus cogens (from Latin: compelling law; English: peremptory norm) refers to certain fundamental,
overriding principles of international law, from which no derogation is ever permitted.
7 The ICJ held in the case that the parties in the case had relied upon the right of self-defence as
contained within Article 51 of the Charter and as such sidestepped the address of the issue in their
judgment

51 and whether it encompasses preventative measures in the form of responses to

pending threats. It is clear from reading the literature regarding Article 51 and the
doctrine of anticipatory self-defence that there is no clear agreement on the legality of
the doctrine. It seems certain that the understanding of anticipatory self-defence will
remain clouded and indistinct until such time as the ICJ or the United Nations makes
a pronouncement on the issue.
CONCLUSION
"Do unto others as you would have them do unto you." The world would be a
peaceful place to live, were this Golden Rule the basic standard of behavior in
internationallaw.
Thecasethatismostinterestingwithregardstoanticipatoryselfdefenceisthatofthe
OsiraknuclearreactorinIraqin1981.Somearguethattheweightofevidenceandthe
statedintentionofIraqtouseitonlyagainstIsraelmakeforacompellingargumentto
justifyitsdestruction.Yet,theSecurityCouncilandtheworldatlargecondemnedthe
IsraeliraideventhoughtsubsequentactionsoftheIraqiregimeduringthe1991Gulf
Warhavevindicatedclaimsofboththeproponentsandopponentsofthisraid.But,
undertheeyeofthecriterionestablishedintheCarolinecase,wasthereacasefor
necessityandforimmediacy?Theanswerisabsolutelynegative.TheUnitedStates
sought to justify the invasion of Iraq through the advancement of three core
arguments.Thefirstargumentisalegalargument,thatis,theviewthatthewarwas
necessarytoenforceresolutionsoftheUnitedNations.Ahumanitarianargumentwas
alsoadvancedthatthewarwouldremoveabrutaldictator,andapreventiveargument
thatwouldstoproguestatesandtheirterroristpatronsbeforetheyareabletothreaten
oruseweaponsofmassdestructionagainsttheUnitedStates.Whileallthearguments
havetheirmeritstheargumentofpreventionwastheprincipaljustificationofthe
Bushadministration.This is importantinputtingthediscussionofthelegalityof
anticipatoryselfdefenceintocontext.Thejustificationspointsupthelackofconcern
thattheUShaveinrelationtocomplyingwithinternationallaw.Infact,withrespect
tothecriterionoftheCaroline,veryfewcasesofanticipatoryselfdefencecanbe
made.Somehavestatedthatthecaseofthe1967SixDaysWarbetweenIsraeland
the Arab countries surrounding it is a clear case of selfdefence. Israel attacked
Egyptianairfieldsinwhatitclaimedtobeananticipatoryselfdefencemanner.But
thissituationgoesmoreintooneofactualbelligerencythanthatofanticipatoryself
defenceAsfortheAmericanbombingofTripoliin1986,ithardlymeetsthetestsof
necessity and immediacy set forth in theCarolineaffair. There may have been a
necessityforsendingastrongmessagetoLibyaforcontinuoussupportofterrorism
andthekillingofUSservicepersonnelinaBerlindiscotheque,butthisisretaliation,
notselfdefence.Thereisnovaluetryingtojustifyadoctrineofanticipatoryself
defenceinwhatisclearlyanactofvengeanceandanassassinationattempt.
Theelasticityofthedoctrineofanticipatoryselfdefenceshouldhowevernotbe
stretchedpastlogicandintofantasy.Intheabsenceofaclearimmediatethreat,
withoutthesinequanonofnecessity,proportionalityandimmediacy,anticipatory
selfdefencebecomesnothingmorethanaslipperyslopeofnakedaggression.