The International Law Allows Pre-emptive Self-Defense - Term Paper Example

The International Law Allows Pre-emptive Self-Defense Introduction Under the international law, pre-emptive self defenseis a long standing contentious doctrine. As noted by Viscount Simonds, law should be relevant as well as responsive to change. However, it is crucial that the law does not result in knee jerk urges. This thought is especially relevant to the current shifting impulses with regard to the pressures on the international law that governs the state utilization of force. In this perspective, preemptive self-defense is defined by Byers as “a war that is started in an attempt to defeat the imminent attack, repel invasion, or to gain strategic advantage in an imminent offensive prior to the materialization of the war” (3). Preemptively, the war breaks the peace. Correspondingly, humanity has often recognized that people are supposed to have the right to defend themselves from violence. In the international law, the basic normative opinion is codified for states in the United Nations (UN) Charter. The United Nations Security Council authorizes the use of force in self-defense. To that effect, drawing on a variety of sources the paper will discuss how preemptive self defense is allowed under international law. The paper will discuss constituent elements that support the legality of the anticipatory self-defense. Discussion The UN Charter is a major instrument in providing guidance for the utilization of force in the international relations. Even though the international law has long held that it is illegal for states to use force as stated in Article 2(4) of the UN Charter, there are exceptions to this rule. Article 51 of the UN Charter permits statutory authority of the utilization of force in preemptive self-defense (United Nations). It states in part that not anything in the present Charter will affect the inherent right of collective or individual self-defense if the event of an occurrence of an armed attack against a member of the UN, in anticipation of the UN Security Council to take the required measures to uphold worldwide peace and safety (UN). Therefore, it implies that a nation is justified to preemptive self-defense. Richter (56) argues that in Article 51 armed attack can make a nation invoke the use of force in self-defense. Proceeding further, Article 51 of the UN Charter is not the only authority that allows preemptive self-defense. Historically, the customary international law has allowed for the right to use force in self-defense (Heyck 29). Also, Dinsten (165) posits that the customary right of self-defense may be given to nations as a preventive measure, looking forward to an armed attack. The requirements resulted in the most cited Caroline incident. In the Caroline affair, in the early 19th century, Canada, a British colony was being attacked by the anti-British forces. A group of British personnel from Canada gained access to the U.S with an aim of destroying an American boat named Caroline. The boat was ferrying supplies to the Canadian insurgents in the north. The British soldiers boarded the boat, and set it on fire and allowed it to sink as went down the Niagara Falls. One American was killed in the process. The attack occurred in American territory. The United Kingdom justified its actions by invoking the self-defense right. It asserted that Caroline would have continued to supply the Canadian rebels, who are a threat to the British government. The United States accepted this explanation. As a consequence, the then U.S Secretary of State, Daniel Webster stipulated the basic rights of preemptive self-defense including necessity of self-defense leaving no choice of means and no instances of deliberations. He further argued that the use of force in self-defense must not involve anything excessive (Jennings 420). The Caroline affair has been utilized to determine the concept of anticipatory self-defense. It is often invoked in the course of a dispute based on the dispute around preemptive strike. The Caroline affair is based on a traditional customary rule on self-defense. In an early diplomatic occurrence, an American citizen was killed in Canada in self-defense. The Caroline case posits that self-defense if justified if one has no choice or moment of deliberation (Beres 231). Those who support the customary international law are known as adaptavists or counter-restrictionists (Mulcahy and Mahony 233). The adaptavists who are the proponents of the anticipatory self-defense share the opinion that the UN Charter supplements the customary laws, especially Article 51. Arend (92) asserts that the inherent right in Article 51 evidences that the Charter was aimed at recognizing and continuing the right that existed before the United Nations was formed. Glennon (539) adds that when the Article says, “nothing in the present Charter will impair the inherent right (UN Charter). It implies that the customary rules continue to be in existence after the ratification. Correspondingly, the wording of Article 51 supports the position preserved in the customary international law doctrine of self-defense. It explicitly acknowledges the pre-existence of the customary right to self-defense, as outlined by the International Court of Justice along with UN Security Council. When the Article states that, “impair the inherent right of….self-defense,” (UN), the word ‘inherent’ can be translated into indefeasible right (Van den hole 78). This means that under the customary international law a state has the absolute right to use force in self-defense. Arend (90) stipulates that customary international law is different. Unlike the UN Charter that sets out written rules, the customary international law is based on what states do in practice. It implies that the states need to engage in a certain authoritative activity and be of the belief that the activity is required by law. As suggested in the Oppenheim’s International Law, state practice ever since the formation of the United Nations shows that the customary international laws are still valid. Besides, they continue to exist together with the statutes established by the Charter (Jennings 418). However, the preconditions of the preemptive self-defense include immediacy, necessity, and immediacy (Van den hole 97). Various cases have been seen with regard to the use of force in self-defense. The first case is the Cuban Missile Crisis. In 1962, America instigated a defensive attack against Cuba in response to the positioning of the offensive Soviet missiles in Cuba. America defended its actions on grounds of self-defense. America feared that the Soviet Union could use the missiles against them (Richter 58). Arend (94) puts emphasis that the invoking of the defensive quarantine by the U.S is justified under the customary international law since there was overwhelming and leaving no choice means for the deliberation. Secondly, America has come up with a policy of making use of preemptive self-defense in order to forestall and deter hostile acts by the terrorists as well as rogue nations that may use weapons of mass destruction (White House 15). Sofaer (220) determined the four major elements that justify America’s pre-emption: the nature and scale of the threat involved, the probability that the threat would occur if preemptive actions is not taken, the exhaustion of other alternatives to use force, and preemptive force was consistent with the terms of the United Nations Charter as well as other applicable international agreements. Mark Amstutz cites Michael Walzer (45) for the justification of the preemptive self-defense, including the existence of an intention to cause damage and the need to act immediately as a result of a higher magnitude of risk. Third, Operation Iraqi Freedom is also another case of anticipatory self-defense. The United States attacked Iraq on grounds that the nation was harboring nuclear weapons that were a threat to America’s national security. In other words, the most crucial element of the attack is that Iraq posed a likely threat to U.S national security. America launched attacks against Iraq on claims that there were weapons of mass destruction that posed a significant threat to the U.S national security (Van den hole 72). The U.S claimed that it used force on self-defense because the terrorists could use the weapons of mass destruction to launch armed attacks to the United States (Armstrong, Farrell and Lambert 67). The American decision makers were of the opinion that Saddam Husseins regime may give the terrorists the weapons of mass destruction, which they could use to perpetrate their terrorist activities. The U.S argued that Iraq was not only a threat to America, but also other nations across the globe. The concept of preemption entails the utilization of military force in advance of first use of force against the enemy. In this perspective, recent terrorist attacks have resulted in preemptive self-defense. The adaptive school of thought supports the view of scholars such as Professor of Glennon of the University of California that the international security environment has changed, thus the need for a change in the global warfare (Mulcahy and Mahony 236). In this perspective, the Bush administration argued that the preemptive action would be taken against those nations that are hostile as well as terrorist groups who are also engaged in the production of weapons of mass destruction. The Iraqi War is the perfect example of the preemptive action. The occurrence of terrorist attacks can initiate the use of force in slef defense. Iraq and Afghanistan were attacked by the U.S and its allies in reponse to the armed terrorist attacks at the World Trade Center and other buildings. Shah (96) shares the evidence that Article 51 stipulates that a state has the inherent right of self defense in the occurrence of an armed attack. In the wake of the war against terrorism, various nations including the U.S have come up with policies that justify the use of military force to fight terrorism. Under the Bush administration, the use of preemptive force became a national security strategy following the 9/11 terrorist attacks. The armed terrorist attack resulted in America’s response by the use of force to fight the terror groups in Iraq and Afghanistan. Nobody denies that the global security environment has change since the drafting of the UN Chater in 1945. Sofaer (221) illustrates that the rapid advancements in technology have facilitated the movement of terrorists, accessibility to more money and modern weapons that may cause serious damage. Therefore, by America invading Iraq is considered as a way of curtailing the spread of terrorist networks and avert their devastating effects both to the United States and other nations. The legitimacy of the preemptive attack was debated in the UK’s House of Lords in April 2004. The UK government responded by saying that the legality of the armed attack is consistent with the intrinsic right of collective self-defense according to Article 51 of the United Nations Charter (Armstrong, Farrell and Lambert 236). Therefore, it can be maintained that America’s attack on Iraq was preemptive self-defense in response to an actual armed attack. Currently, President Obama has proceeded with the numerous policies of the Bush’s doctrine. Van den hole (72) points out that the right of self-defense is closely related to the principle of jus ad bellum (the law relevant to resorting to use armed force). In other words, on condition that the law is legal under the doctrine of bellum justum, the international law can simply consider preemptive self-defense as a counter-war against illegal war. In this perspective, the preemptive self-defense may be subject to the principles that govern the conduct of military operations. The armed action can be directed to those who are actively planning and perpetrating the armed attacks (Bethlehem 7). The proposition to allow self-defense only when an armed attack has been carried out is supported by the International Court of Justice, especially in the Nicaragua vs. the United States of America case in 1986 (Arend 92). The court argued that the use of force in self-defense is subject to the nations considered as having been a victim of the armed attack. From this statement, it can be concluded that anticipatory self-defense is lawful. However, the threat of a forthcoming armed attack is a precondition for the exercise of preemptive self-defense. On October 7, 2001, America initiated aerial attacks in Afghanistan. America argues that it was exercising its inherent right of self-defense as it was combating international terrorism. Considering that an armed attack was instigated against the U.S on September 11, 2001. The U.S is justified to attack Afghanistan. Van den hole (84) illustrates that Article 51 outlines that if an armed attack occurs, self-defense may be exercised. America responded in self-defense as a result of the armed attacks from the terrorists who originated and were harbored by Afghanistan. The United States legally responded by invading Afghanistan together with toppling the Taliban regime. Mulcahy and Mahony (236) illustrate that the United States was legally allowed to attack Afghanistan under the provisions of Article 51 of the United Nations Charter as well as the customary international law. In the wake of the September 11, 2001 terrorist attacks, the UN Security Council recognized that both the large-scale and small-scale terrorist actions comprise of an armed attack that may result in the right to use force in self-defense. The force can be in certain situations be utilized against those who plan and carry out such acts, if that is required to avert further terrorist activities. It was on this basis that the UK was also a participant in the military action against the Taliban and Al-Qaida in Afghanistan. Therefore, it is right under the international law if the states are able to act in anticipatory self-defense where there is evidence of further imminent attacks by the terrorist groups. This is applicable even there is no evidence of a specific place where the attack will take happen or the definite type of the attack (Bethlehem 3). It is not only the U.S and U.K that are faced with such threats, ranging from France, Tunisia, Egypt, Yemen, Syria, Turkey, Kenya, and Nigeria among other, they have had to confront similar situations in the recent years. As an example, recent terrorist attacks in Kenya forced the Kenyan government to use force against Somalia in self-defense. Most of the Al Shabab terrorist group members are harbored in the stateless Somalia. It can be concluded that the states have a right to self-defense against instigated by the non-state actors. As cited by Armstrong, Farrell and Lambert (135-136), in 1988, an American warship shot down an Iranian aircraft on the grounds that it acted in anticipatory self-defense. In another case, Israel acting in anticipation believed that there was an imminent attack by Arabic nations using force in self-defense in the so-called Six-Day War of 1967 (Arend 95). The Israeli’s justified their actions on based on anticipatory self-defense. Israel’s defense proved that it met the criteria of the Caroline affair. The state argued that the removal and transfer of United Nations peacekeepers from Sinai and blockage of the Straits of Tiran, along with the mobilization of the land troops on its border with Egypt were definite symptoms of an impending attack on Israel. Therefore, it required the preemptive utilization of force. The war lasted for 6 days as Israel defended its territories by use of military action. Israel argued that by Egypt blocking the Straits of Tiran to prevent the passage of the Israeli ships; it was considered as an act of war. As claimed by Israel, the armed attack justified the use of force in self-defense under Article 51 of the United Nations Charter. Lastly, as for the Osirak Reactor, again Israel acted in response to pre-emptive self-defense after it demolished the Osirak nuclear reactor in Iraq in 1981. In the same way, Israel claimed that it believed the Iraqi nuclear reactor could have been utilized in the development of nuclear weapons that could have been used against Israel. Yehuda Blum, the then-Israeli ambassador said that “Israel was exercising its inherent right of self-defense as stipulated in the general international law and within the meaning of the UN Charter Article 51” (Arend 95). The rules in this case can be enunciated in the Caroline case (Richter 59). The mentioned examples relate to pre-emptive self-defense based on both Article 51 of the UN Charter and the customary international law that the states acted in anticipatory self-defense. As stipulated in the Caroline case that allows for a right for a nation to engage in pre-emptive self-defense, and Article 51, the nations were justified in the actions. Therefore, the international community cannot hold them accountable for their actions. However, there are still debates on the limits of the customary laws. There are concerns in relation to the extent unto which self-defense may be used preemptively. This debate is profound with regard to the Operation Iraqi Freedom. Conclusion In summary, the international law allows the anticipatory self defense. Article 51 of the UN Charter allows the state to act in either unilateral or collective self-defense if an armed attack is instigated. The other authority that allows for pre-emptive self-defense is the customary international law. The customary international law allows for the right to use force in self-defense. However, it extends further than Article 51 incorporating the right to make use of preemptive measures. Self-defense in anticipation of an armed attack is allowed under the customary international law after the Caroline incident. The Operation Iraqi Freedom, the Osirak Reactor, 1967 Israeli Six-Day War, the Cuban Missile Crisis can all be justified under the international law as justifiable attacks by using force in self-defense. Therefore, preemptive self-defense is supposed to be regarded as part of the more general right of self-defense according to the customary international law, recognized in Article 51 of the United Nations Charter. The international community should come up with a more rule-based legal regime along with providing a less destabilizing environment where the states would refrain from the unilateral use of illegal force. Proceeding further, the International Criminal Court should redefine the acts as of aggressions such as terrorism as international crime so that nations do not use illegal force. Works Cited Amstutz, Mark. 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