Chapter 3

Controversial Aspects of Self-Defense

Even the use of force universally recognized as a jus cogen norms, State may
use force in lawful self-defense as a last resort. Self-defense can be classified into
individual self-defense, collective self-defense, interceptive self-defense, preemptive
self-defense, preventive self-defense and anticipatory self-defense. Both individual
self-defense and individual self-defense recognize as lawful while preemptive self-
defense and anticipatory self-defense are disputable as permissible self-defense.
3.1 Interceptive Self-Defense
Interceptive self-defense stands for a retaliatory strike to an attack which is
imminent and unavoidable with purpose of preventing the consequences of an
offensive already in motion. Although it requires clear and convincing evidence, as
necessary to avoid greater harm, the use of force outside the limits of the Charter in
that case is lawful and justified.1 This notion would apply to, for example, a missile
defense system destroying missiles that have already been launched against the
defending states. One might perhaps therefore think of interceptive self-defense as the
response to ‘extremely imminent attacks’.2
The best way to trace what interceptive self-defense denotes is to hypothesize
that the Japanese Carrier Striking Force, en route to the point from which it mounted

1
Yaroslav Shiryaev, The Right of Armed Self-Defense in International Law and Self-Defense
Arguments Used in the Second Lebanon War, 3 Acta Societatis Martensis (2007/2008)80-97,
p.83.
2
James Green, The ‘ratione temporis’ elements of self-defense, Journal on the Use of Force and
International Law, 2(10), 2015, p.21.
 24

the notorious attack on Pearl Harbor in December 1941, had been destroyed by
American forces therefore a single Japanese naval aircraft got anywhere near Hawaii. 3
Since early 1941 the U.S had been supplying Great Britain in its fight against the
Nazis. It had also been pressuring Japan to halt its military expansion in Asia and the
Pacific. With the Japanese attack on Pearl Harbor, the U.S could no longer avoid in
active fight. On December 8, U.S President Franklin Delano Roosevelt asked
Congress for and received a declaration of war against Japan. On December 11,
Germany and Italy, allied with Japan, declared war on the U.S. The United States had
entered World War II.4 Thus, Yoram Dinstein argues that if the U.S were to be
destroyed Admiral Yamamoto’s carrier battle groups as they were steaming towards
Pearl Harbor, the U.S would have been engaged in an interceptive.5
Interceptive self-defense is lawful, even under Article 51 of the Charter, for it
takes place after the side has committed itself to an armed attack in an ostensibly
irrevocable way. Whereas a preemptive strike is directed at an armed attack that is
merely ‘foreseeable’, an interceptive strike counters an armed attack which is already
in progress, even if it is still incipent.6
It must be noted that interceptive self-defense acts on the perception of a threat
embarking on an irreversible course of action. Perceptions can often be wrong . USA,
Russia and Iran are a few of many States that have pleaded mistaken identification
under honest belief in front of international adjudicating forums. They had wrongfully
identified civilian aircrafts to be threat and had subsequently shot them down. 7
Shooting down the Cessna 152 is an example for this matter. In this incident, Israel
had shot down the Cessna 152 upon the apprehension of it being an imminent armed
attack. Israel was on high terror alert when an unauthorized Lebanese aircraft entered
their airspace. The aircraft did not respond to any communication despite repeated
efforts. Therefore, Israel shot it down. However, the aircraft was not a threat. There
was no international condemnation for Israel’s actions as they were in good faith
owing to an honest belief of the aircraft being a threat.8
3
Yoram Dinstein, War, Aggression and Self-Defense, Cambridge University Press, 5 th Ed, 2011,
p.203.
4
https://www.census.gov>pdf.
5
Yoram Distein, Fania Domb, Isreal Yearbook on Human Rights, Vol-35, Martinus Nijhoff
Publishers, 2005 p.26.
6
Yoram Dinstein, War, Aggression and Self-Defense, Cambridge University Press, 5 th Ed, 2011,
p.206.
7
https://silpnujs.wordpress.com/2021/04/27/mistake-of-fact-interceptive-self-defense-and-
right-to-life/
8
https://silpnujs.wordpress.com/2021/04/27/mistake-of-fact-interceptive-self-defense-and-
 25

In taking consideration mentioned about, interceptive self-defense can be

allowed only if the perception of threat is innocent. By doing this, it can consider that
perceptive self-defense beyond the legal limit of the right of self-defense.
Nevertheless, interceptive self-defense is lawful when the attack is underway. But, the
perception of threat needs to be concrete.

3.2 Pre-emptive Self-Defense

The United Nations Charter’s prescription with respect to the use of force is
essentially binary: either a use of military force is self-defense, as that concept is
conceived in the Charter, in which case it is lawful, or it is not, in which case it is
unlawful. As for the right to resort to military measures in self-defense, it materializes
only when the state invoking it has suffered an “armed attack”, a stricture that does
not even extend to the Caroline doctrine of anticipatory self-defense.9
During the Cold War, the practice of low-level protracted conflicts place
considerable stress on the Charter regime, and those charged with its application were
obliged to ignore the overt and explicit nuclear threats between the superpowers that
had come to constitute the system of strategic deterrence. But despite these problems,
the International Court of Justice and most international lawyers have steadfastly
insisted on the strict application of the Charter regime, most recently in the Congo V.
Uganda decision, which is discussed below. Yet if customary international law is in
the process of accommodating the U.S claim to a right of preemptive action__ a
distinct possibility given the adoption (both full and partial) of the U.S. claim by other
significant states__ the possibility of future invocations is increased.10
Pre-emptive self-defense refers to defensive force employed to counter armed
attacks that are “imminent”. This type of anticipatory self-defense is the focus of the
current enquiry. The right for states to act in this way, even in the post UN Charter
era, is typically said to derive from the celebrated Caroline incident of 1837 and
American Secretary of State Daniel Webster’s assertion that the necessity of self-
defense must be “instant, overwhelming, and leaving no choice of means and no
movement for deliberation.” This part so-called ‘Webster Formula” or “Caroline
formula” is the traditional starting point for any discussion of a right of pre-emptive

right-to-life/
9
W.Michael Reisman and Andrea Armstrong, The Past And Future of The Claim of Preemptive Self-
Defense, 100Am.J.Int’L.525 2006, p.525, https://heinonline.org/HOL/License.
10
Ibid.p.526.
 26

self-defense, even if the facts of the incident do not necessarily comprise a response to
an anticipated future armed attack. In its most orthodox form, a right of preemptive
self-defense is typically understood as a right to respond militarily to an armed attack
that is about to be launched in the reasonably foreseeable future. Pre-emptive self-
defense is, therefore, a response to the “sitting duck dilemma”, meaning that article 51
should not be interpreted in a way that “requires a state to passively accept its fate
before it can defend itself.11
Professor Reisman has given threshold for different kinds of self-defense. The
requisite threshold for reactive self-defense is “actual armed attack”, for anticipatory
self-defense “palpable and contingent threats of possible attack”. The goal of pre-
emptive self-defense is to prevent “more generalized threats from materializing”
rather than trying to ‘preempt specific, imminent threat’.12
First trailed in a speech made by US President George W.Bush in June 2002
(Bush,2002), the ‘Bush Doctrine’, as it has come to be known, was sequently
incorporated in the policy document The National Security Strategy of the United
States of America( White House,2002) in September of that year. Written in the
aftermath of the events of 11 September 2001, the strategy addresses the threat posed
by terrorism, weapons of mass destruction and rogue states. The logic that derives
(but does not constrict) the argument of the National security Strategy is that “the
greater the threat, the greater is the risk of inaction- and the more compelling the case
for taking anticipatory action to defend ourselves”.13
In legal terms, ‘pre-emptive self-defense” can either mean anticipatory self-
defense against a clear, imminent threat, which could fall under the self-defense
provisions of Article 51 of the UN Charter, or it can refer to preventive military
action, where the perceived threat is not imminent and the action is therefore clearly
illegal. As is also the case with respect to international law and humanitarian
intervention, there are differing interpretations of the scope of what might count as

11
Chris O’Meara, Reconceptualising the right of self-defense against ‘imminent’ armed attacks,
Exeter Center for International Law, Working Paper Series, 2022/1, pp.8-9.
12
Niaz A.Shah, anticipatory self-defense and pre-emption: International law’s Response To
Terrorism, journal of Conflict and Security Law, Spring 2007, Vol.12,No.1,Oxford University
Press, p.112.
13
Jim Whitman, Humanitarian Intervention in an Era of Pre-emptive Self-Defense, Security Dialogue,
September 2005, Vol.36, No.3(September 2005), Sage Publications,Ltd,pp-264-
265,https://www.jstor.org/stable/26298959.
 27

justifiable anticipatory self-defense within the scope of Article 51, but majority legal
opinion favors a highly restrictive one.14
The preemptive self-defense theory grants the state the right to use military force
to nullify an emerging threat to its sovereignty or territorial integrity. Pre-emption
differs from anticipatory self-defense because, in order to invoke the rationale of a
pre-emptive action, an armed attack does not have to be imminent. In other words, the
state acting in pre-emptive self-defense can simply respond to a perceived military
threat and need not expect an armed attack to occur. Thus, this may lead to a military
action against a state or a non-state actor before there is any proof that an attack is
imminent.15
The pre-emption principle is well beyond the range of Article 51 of the Charter
of the United Nations. This is because the perceived threat doesn’t have to be
imminent or even planned for pre-emption. The very nature of pre-emptive strike
suggests that the attack isn’t a defensive action, as there is no imminent threat to
which a state is responding. Pre-emption is contradictory to general principles of
international law and is not an act of self-defense, but rather strategy of threat and
aggression.16
Therefore, pre-emptive self-defense cannot conformity with the lawful use of
self-defense because of the facts mentioned above.
3.3 Anticipatory Self-Defense
“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.17Gill and Duchesne define anticipatory self-defense as “defensive
measures undertaken in response to a manifest and unequivocal threat of attack in the
proximate future”.18
The concept of anticipatory self-defense is used to denote the use of armed
force against the attacking party before the attack has been lunched. The existence of

14
Jim Whitman, Humanitarian Intervention in an Era of Pre-emptive Self-Defense, Security Dialogue,
September 2005, Vol.36, No.3(September 2005), Sage Publications,Ltd,pp-264-265,
https://www.jstor.org/stable/26298959.
15
Pukar Dahal, Right of Self-defense of States under International Law; A Conceptual Understanding,
3 INT’I J.L.MGMT.&1107(2020),p.1117.
16
Pukar Dahal, Right of Self-defense of States under International Law; A Conceptual Understanding,
INT’I J.L.MGMT.&1107(2020),p.1117.
17
Leo Van den hole, Anticipatory Self-Defense under International law, 19
AM.U.INT’l.L.REV.69(2003), https://heinonline.org/HOL/License.
18
Geoffrey S.DeWeese, Anticipatory and Preemptive Self-Defense in Cyberspace: The Challenge of
Imminence, NATO CCD COE publications, Tallinn, 2018, p.84.
 28

the right of anticipatory self-defense has been made reference to international

practice and professional literature, firstly based on the ambiguous wording of
Article 51 of the Charter which allows states to use armed force if an armed attack
occurs without specifying the exact time during or before the attack when the state
can exercise this right. Secondly, the existence of the right of anticipatory self-
defense has been made reference to base on the right of self-defense provided in
customary law that is allegedly in force alongside the regulation of the Charter. 19
Regarding with the existence of the right of anticipatory self-defense, many
legal scholars refer to Caroline accident (1837). During the 1837 Canadian
insurrection, rebels made preparations in U.S territory for subversive action against
the British Authorities. In particular, rebels looted a U.S arsenal in Buffalo to obtain
arms. The United States acted properly in taking measures against the organization
of armed forces upon its soil so that no breach of duty could be alleged against its
authorities. However, the steamer Caroline was reinforcing and provisioning the
rebels in Upper Canada from ports in the United States. While the vessel was
anchored on the United States’ side of the boarder of the Niagara River, an armed
band under the command of a British officer crossed the river, set fire to the vessel,
and cut it loose to float over the Niagara Falls. The United States was understandably
upset that British raided and destroyed an American ship in U.S Territory. In
response to American protests, Great Britain offered self-defense as a justification
20
for the destruction of the vessel. This incident triggered an exchange of letters
between American and British diplomats and this correspondence demonstrated an
acceptance among them that the right of self-defense can be invoked to address
threats that are “instant, overwhelming, leaving no choice of means, and no moment
of deliberation”. 21
The classical definition of the Caroline case is still relevant for anticipatory
self-defense today. Moreover, the preconditions set in the Caroline case have been
extended to the right of self-defense in general, which is quite logical, as the right of
anticipatory self-defense is only form of the more general customary right of self-
defense, and the conditions for the application of both rights have to be more or less
19
Helen Eenmaa, The Concept of Anticipatory Self-Defense in International Law after the Bush
Doctrine, 2005, https://www.researchgate.net/publication/228152257.
20
Leo Van den hole, Anticipatory Self-Defense under International law, 19
AM.U.INT’l.L.REV.69(2003), https://heinonline.org/HOL/License.
21
Russell Buchan and Nicolas Tsagourias, Regulating the Use of force in International Law: Stability
and Change, Edward Elgar Publishing Limited, 2021, p.59.
 29

the same. Roberto Ago came to a similar conclusion as Secretary of State Daniel
Webster when he wrote that the essential preconditions of “self-defense” in general
are “necessity”, “proportionality” and “immediacy”. These principles are moreover
followed by the ICJ, when it held that “there is a specific rule whereby self-defense
would warrant only measures which are proportional to the armed attack and
necessary to respond to it, a rule well established in customary international law”.22
With the implementation of the UN Charter in 1945, an important question is
whether Article 51 UN Charter permits States to engage in defensive action to
counter a threat of an armed attack. According to Article 51, the right of self-defense
can be engaged when an armed attack “occurs”. 23 The wording of Article 51 has
given rise to many disagreements, perhaps as a result of its simplicity. The literature
on the legal status of anticipatory self-defense can be divided into opinion into three
primary schools of thought. Those schools of thought include:
1. Those who argue that Article 51 of the United Nations Charter is exhaustive
of the situations under which the use of force can be used.
2. Those scholars that argue that the customary international law predated the
United Nations Charter still exist.
3. Those legal scholars who suggest that the “emerging threat” (also known as
the Bush Doctrine) doctrine provides for the legality of anticipatory self-
defense.24
The decision of the world court and statement of the Security Council can
indicate the existence of the right of anticipatory self-defense. In early 1981, mainly
with French assistance, Iraq was constructing a nuclear reactor facility at Tammuz
(near Baghdad) code-named Osirak, allegedly designed for peaceful research
purposes. Although Iraq was claimed to be adhering to the Nuclear Nonproliferation
Treaty (NPT) and the reactor was subject to inspections by the International Atomic
Energy Agency (IAEA), Israel suspected the purpose of the reactor was actually to
produce nuclear weapons. Israel observed that Iraq was buying uranium in qualities
that were disproportionate to scientific research alone. 25 On Sunday June 7, 1981, the
22
Leo Van den hole, Anticipatory Self-Defense under International law, 19
AM.U.INT’l.L.REV.69(2003), https://heinonline.org/HOL/License.
23
Russell Buchan and Nicolas Tsagourias, Regulating the Use of force in International Law: Stability
and Change, Edward Elgar Publishing Limited, 2021, p.59.
24
James Mulcahy and Charles O Mahony, Anticipatory self-Defense: A Disussion of the International
Law, 2Hanse L.REV.231(2006), https://heinonline.org/HOL/License.
25
David A.Sadoff, A Question of Determinacy: The Legal Status of Anticipatory Self-Defense,
40GEO.J.INT’L.523(2009), p.569.
 30

Israeli Air Force bombed the Osirak nuclear research reactor near Baghdad, Iraq. As a
consequence, the $275 million reactor sustained massive damage and at least one
person was killed. Within twenty four hours of the raid, Israel’s Prime Minister,
Menachem Begin, assumed responsibility for the raid contending that his country was
acting in legitimate self-defense. The Prime Minister insisted that Iraq intended to use
the Osirak reactor to produce plutonium bombs that would be used against Israel.
Furthermore, he contended that the attack could not have been delayed because the
reactor would have been operational within a few weeks; any raid at that point would
result in the emission of radiation throughout the heavily populated center of
Baghdad.26
During discussion of the attack in the Security Council, Israel relied on
commentators who supported the doctrine under an expansive interpretation of Article
51, but unable to cite to any clear State practice for this view. Israel conducted that
technological advances had effectively broadened the scope of self-defense as stated
under the Charter and that it should now encompass the right to attack preemptively to
thwart a surprise nuclear attack.27Nevertheless, the world community publicly
condemned for the raid.28
The Security Council concluded its debate by unanimously condemning Israel.
It based its condemnation on a telegram from the Board of Governors of the IAEA
asserting that Iraq had not violated its safeguard agreement, and termed the Israeli
attack to be “in clear violation of the Charter of the United Nations and the norms of
international conduct.29
Almost all states after the emergence of the United Nations never accept the
right of anticipatory self-defense as lawful. Therefore, the right of anticipatory self-
defense, as claimed to be formulated in the Caroline case is not supported by
subsequent State practice and cannot be said as forming part of the existing customary
law of the time.30

26
Neil J.Kaplan, The Attack on Osirak: Delimitation of Self-Defense under International Law,
4N.Y.L.Sch.J.INT’I & COMP.L.131 (1982), p.131.
27
David A.Sadoff, A Question of Determinacy: The Legal Status of Anticipatory Self-Defense,
40GEO.J.INT’L.523(2009), p.569.
28
Neil J.Kaplan, The Attack on Osirak: Delimitation of Self-Defense under International Law,
4N.Y.L.Sch.J.INT’I & COMP.L.131 (1982), p.131.
29
Ibid, p.134.
30
Abdul Ghafur Hamid @ Khin Maung Sein, Public International Law: A Practical Approach, 3 rd Ed,
2011, p.421.
 31

On 24 February 2022, Russia commenced military action against Ukraine. The

action was widely condemned by international community as a violation of
fundamental norms of international law, while as the conflict progressed allegations
of commission of war crimes by Russian forces grew.31 Valdimir Putin’s address of
24 February represented a long, rambling series of assertions within which can be
identified the strands of two central justifications for its military action against
Ukraine: these take the form of a blend of references to self-defense and
humanitarian intervention, embedded within border justificatory language not too
dissimilar from that employed to rationalize Russian Military interference in Georgia
in 2008 and Crimea and the Donbas in 2014. 32 His reference to the growing threat
posed to Russia as a result of NATO’s presence in neighboring countries and a
permanent threat faced from Ukraine as a result of potential NATO expansion further
eastward might be taken as indicative of a desire to take action to weaken or move the
prospect of military action in the future being directed against Russia from Ukraine.
This would sit coherently with Putin’s proclaimed objective of the military action
launched on February 24 to “demilitarize” Ukraine. By destroying Ukraine’s military
capacity, any ability to threaten Russia in the future would be severely weakened.
However, this would be to take the basis of Russia’s justificatory discourse into the
realms of pre-emption, a hugely controversial notion in international law. Whereas
anticipatory self-defense is based on action to respond to threats in circumstances
where an armed attack is imminent, there being relatively conclusive evidence of its
impending nature, the logic of pre-emption is that states may act to remove threats
before they even materializ33e. In this sense it is a very speculative notion. Famously
advanced by the US in its post-9/11 national security strategy, there is little support
for the doctrine in state practice.
Furthermore, the concept of anticipatory self-defense has been supported by the
UN High Level Panel on Threats, Challenges and Change. In its December 2004
report, the panel outlined:
“A threatened state, according to long established international law, cans military
action as long as the attack is imminent, no other means would deflect it and the

31
Sofia Cavandoli, Gary Wilson, Disorting Fundamental Norms of International Law to Resurrect
the Soviet Union: The International Law Context of Russia”s Invasion of Ukraine, Netherlands
International Law Review (2022) 69, p.383.
32
Ibid.pp.397-398.
33
Ibid.p.400.
 32

action is proportionate. The problem arises where the threat in question is not
imminent but still claimed to be real; for example the acquisition, with allegedly
hostile intent, of nuclear weapons making capability.”34
Therefore, the existence of the right of self-defense is still in issue. From one
point, anticipatory self-defense can only exercise within the conditions arose out of
Caroline incident. Although the UN Charter provides self-defense as the inherent
right, states cannot exercise anticipatory self-defense to repel the unlawful threat until
the first strike. In determining the anticipatory self-defense is legitimate, it is not
alone the supportive statement of state practice but the Security Council’s statement
can affect the exercise of the right of anticipatory self-defense.

34
Pukar Dahal, Right of Self-defense of States under International Law; A Conceptual Understanding,
3 INT’I J.L.MGMT.&1107(2020),p.1117.