Anticipatory (Pre-emptive) Self-defence: The Need for a Modern Approach

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Anticipatory (Pre-emptive) Self-defence: The Need for a Modern Approach

The use of military force is a valid customary international law norm and it is enshrined in the United Nations Charter. Nevertheless, the use of force is only authorised if it falls under one of two categories: self-defence (article 41 of the United Nations Charter), or Security Council authorisation. To justify a resort to pre-emptive war, a state must give reasonable proof that the action is necessary to the vital national security interests of the state, and that the act of aggression in self-defence is proportional, according to Charter principles. The threat imposed by an aggressor must be proven to be clear and imminent, direct, critical to the state facing disproportionate danger, and unable to be handled using peaceful alternatives. According to the Charter, to deem self-defence lawful requires that an attack has already been launched against a victim state. Examples of states acting pre-emptively in anticipatory self-defence have further elaborated on this legality, creating in some instances an international acceptance that in the case of an imminent attack, the necessity of a proportional assault in self-defence is lawful. However, the issue remains that the Charter, in order to deem an action as lawful self-defence, requires the existence of an armed attack on the victim state. Interpretation on what constitutes an armed attack is what generates the most disagreement amongst the international law community. It is agreeable, however, that no state can be expected to sit idly by and await the first blow of an armed attack by an aggressor state in the modern era of warfare.

The recent War on Terrorism is giving us an example of how...

... middle of paper ...

...efence”.

American Journal Of International Law. Vol. 97, No. 3, pp. 601-602.

[10] Bothe, Michael.(2003) “Terrorism and the Legality of Pre-emptive Force”. European

Journal of International Law. Vol. 14, No. 2 : p. 230.

[11] United States National Security Strategy. 17 September 2002. United States

Department of State Information Service. Available at:

http://www.state.gov/r/pa/ei/wh/c.7899.htm

[12] Sapiro, Miriam. (2003) “Iraq: The Shifting Sands of Pre-Emptive Self-Defence”.

American Journal Of International Law. Vol. 97, No. 3, p. 602.

[13] Schmitt, Michael.(2003). “Pre-emptive Strategies and International Law”. Michigan

Journal of International Law. Pp 513-548.

[14] Schmitt, Michael. (2003) “Pre-emptive Strategies and International Law”. Michigan

Journal of International Law. Pp 513-548.

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