Between 2000 and May 2009, Palestinian attacks killed nearly 1,200 Israelis and injured close to 10,000, through suicide bombings, rocket and mortar attacks, shootings, bombings, and violent assaults. In defense, Israel applied a counter-terrorism reaction with deadly strikes. The application of the right to combat terrorism was further reinforced by international practice following the 9/11 terror attacks on the United States.
In his speech to the United Nations on September 12, 2002, the former U. S. President, George Bush had described the regime of Saddam Hussein in Iraq as a “grave and gathering danger.” He had detailed the regime’s persistent efforts to acquire weapons of mass destruction and its persistent defiance of numerous Security Council’s resolutions requiring Iraq to disarm and raised the spectre of an “outlaw regime” providing weapons to terrorists.
The former Republican President left no one in doubt that with or without the UN, support, the U.S would act to force Iraq to disarm by the use of military force. The issue this policy statement raises is the legality of pre-emptive use of force to strike Iraq. The reasons given are:
1. Acquiring weapons of mass destruction;
2. Without the U.N support, the U.S will act to disarm Iraq using military force.
The appropriate articles in the U.N. Charter that will help in answering these questions are Articles 2(4) and 51 of the Charter.
Article 2(4) forbids the use of force against the territorial integrity or political independence of a nation. Under Article 2(4) of the United Nations Charter, states are generally prohibited from engaging in the use of force against other 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.
The article has been described by the international court of justice as a pre-emptory norm of International law for which states cannot derogate.
Thus the U.S, according to the article, will be acting illegally.
However, Article 51 grants an exception of self defence:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defense 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…
Two circumstances exist that make the use of force permissible. They are:
1. Individual and collective self-defense against an actual or imminent armed attack;
2. When the Security Council has directed or authorised the use of force to maintain or restore international peace and security.
There is however disagreement about the circumstances in which the right of self-defense may be exercised. If Article 51 is interpreted literally, it will imply that an armed attack must have already occurred before force can be used in self defense.
In evaluating whether anticipatory self-defense is incompatible with the Charter, one should note that Article 51 is an exception to Article 2(4) and it’s a general rule of interpretation that exceptions to a principle should be interpreted restrictively so as not to undermine the principle.
The most famous case in international law, The Caroline (1906), deals with the issue of anticipatory or pre-emptive self-defense. This one predates Article 51, and it is certainly part of customary international law. The law arising from this case is that, for pre-emptive self-defense to be lawful:
1) The necessity must be immediate;
2) The necessity must be overwhelming;
3) There must be no other choice;
4) There must be no time to deliberate; and
5) It should also be proportional. (This comes from an earlier letter. Here, killing everyone, burning the ship, and sending it over the falls was found not to have been proportional.)
In conclusion, it is however unrealistic to expect a state “to be a sitting duck” and wait until the bombs are actually dropping on its soil, neither is it reasonable that a state should wait for the aggressor’s blow to face before taking positive measures for its own protection.