A Critical Study of Legitimization of Preemptive Self-Defense as a Counter-Terrorism Measure Under International Law

Article 2(4) of the United Nations (UN) Charter obligates all Members to 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 [1]. This prohibition of threat or use of force aims to preserve peace and security between the Members, avoid aggression, and traditional self-help system by focusing on the peaceful settlement of disputes. There are two exceptions to this prohibition: self-defense authorized by the UNSC as stipulated in Chapter VII of the UN Charter and self-defense according to Article 51. However, despite these UN Charter prohibitions, states have used armed force preemptively. Surprisingly, neither the Security Council has formally validated any preemptive self-defense attack, nor has the International Court of Justice (ICJ) given an affirmative advisory opinion or ruled positively on a related case.
Additionally, many states have publicly condemned preemptive self-defense armed attacks conducted by other United Nations (UN) member states. Adversary, terrorism continues to be an overwhelming security threat to the international community. Its sophisticated nature, technological implications, and support from some countries call for other mechanisms to address it.

A critical challenge in this matter is that the absence of a specified regulation regarding the lawfulness of preemptive self-defense within the UN Charter causes different interpretations of self-defense as provided by the Charter. In that respect, I argue that international law has created a vacuum regulating the states‘ self-defense rights since it has not been updated to accommodate new and complex security threats, including terrorism. I have critically discussed this problem in the following three sections. In the first section, I invoked the concept of self-defense, intending to study the legitimacy of preemptive self-defense under the right of self-defense. I introduce the problematic legitimization of preemptive self-defense. In the second section, I discussed the status of preemptive self-defense rights based on a few cases before the International Court of Justice (ICJ) and the United Nations Security Council. My primary aim was to identify the international regulatory loopholes in preemptive self-defense and how these bodies interpret and apply the UN Charter and other customary laws in line with preemptive self-defense rights. In the final section, I critically focused on challenges to anticipate with new regulations, the compensation right for the infringed state of preemptive attacks, and its usefulness in combating terrorism.

SELF-DEFENSE: A LAWFUL USE OF ARMED FORCE

Beforehand, I must recall that Article 51 establishes that self-defense is permissible if an armed attack occurs[2]. In other words, self-defense of any preventive or preemptive nature is prohibited under Article 51. Hence, I agree with Brownlie that the right to self-defense was constituted only as an exception to the general prohibition on using force and with the limitation of being subordinate to the Security Council[3].

Conditional Legitimization of Use of Force for Self-Defense

Self-defense as a lawful use of armed force must strictly respect several conditions. Namely, the defendant must reasonably believe that there is a present or imminent danger of armed aggression and that lethal force is vital and proportionate to ward off this illegal threat[4]. In that sense, I understand that if lethal force was considered the only alternative to avoid an unlawful attack, the putative defender must prove that the threat was severe and imminent and that the use of force was proportionate and necessary. However, an objective and reasonable conclusion of the imminence of an armed attack must be based on a high degree of credible and reasonably available information[5].

In the Oil Platform case, the ICJ clarified that the test of whether self-defense was necessary was a strict and objective condition, leaving no room for any measure of discretion[6]. If these conditions are strictly applicable to self-defense, there should be even severe regulations of pre-emptive self-defense instead of leaving that decision under the unilateral discretion of states. Moreover, the Security Council should act quickly and adequately to prevent imminent danger turns into preemptive and revenge chaos. When the ICJ ruled on the US claims that Nicaragua had unlawfully used force by providing weapons and supplies to El Salvador rebels, the Court held that Nicaragua was not held accountable for providing weapons and supplies to Salvadorean rebels. It concluded that even if it had done so, the armed attack was not proportional to the supply of weapons[7]. From this case, I can infer that a state must resort to measures less than armed self-defense if it is threatened by force not amounting to an armed attack, or it must seek Security Council authorization to do more. In this case, the ICJ emphasized that the norms of customary international law can exist parallel to those of the UN Charter and grant the same obligations and rights.

Finally, proportionality requires that possible civilian casualties be weighed in the balance. For example, if the attack caused the loss of innocent lives or destroyed the civilians‘ property, the attack becomes unlawful. This rule prohibits force that may cause incidental loss of lives, injury to civilians or their objects, or their combination if that force is excessive according to the concrete and direct military advantage anticipated[8].

Discussion on the Legality of Preventive and Preemptive Self-Defense Attack

Beforehand, I must emphasize that self-defense attack is a right entitled to the state victim of an attack; that is, self-defense against an actual attack[9]. The issue is when states extend that right to prevent or preempt attacks. These two concepts differ in that pre-emptive self-defense, that is, self-defense against an imminent or actual attack, is permissible, whereas preventive self-defense, where there is no imminent threat, is not permissible[10].

According to this analysis above, pre-emptive self-defense aims to ward off an attack, which makes it defensive. In contrast, using force to prevent possible future threats is no longer defensive in the strict sense but offensive. In preemptive self-defense, the enemy has decided on war, while the victim or target state can try to disrupt the unfolding assault or may elect to receive the attack before reacting[11]. According to the Caroline incident, the state is in a situation of necessity, while the situation has become overwhelming because the victim does not have the moment for deliberation, leaving no choice of means. That incident occurred in 1837, in which British militia from Upper Canada crossed to the US shore of the Niagara River and set adrift of a small rebel operated vessel[12].

Justification of Preventive Self-defense: A Lesson from 11 September 2001 Terrorist Attack

The lesson to learn from the terrorist attacks of 11 September 2001 is that terrorist attacks can occur at any time because non-state actors are capable of projecting extreme violence across the globe. Another critical concern to the entire international community is the ability of terrorists to project force across the globe and the potential use of weapons of mass destruction (WMD) [13]. The issue with the attack on Iraq is that the threat was not imminent for the targeted state to act preemptively.
The USA and the allies defended Operation Enduring Freedom against Afghanistan that the 11 September attacks were a series of attacks on the United States, which began in 1993[14]. In this process, the USA proved Bin Laden‘s connection with the 1993 attack on the World Trade Center, the 1998 embassy bombings in Nairobi and Kenya, and other different terrorist attacks[15]. The unique nature of this threat had proved the Security Council‘s inability to take practical actions using Chapter VII enforcement powers against an enduring terrorist threat that is comprised of past and imminent armed attacks. Therefore, states had no means to counter that threat other than using (questionable) defensive armed forces.

Imminence of Threat as a Significant Factor of Preemptive Self-Defense

In this case of Iraqi invasion again, the panel established that a state can act in self-defense before an armed attack has occurred, only if there is an imminent threat. It means that if the threat is not imminent but still real according to credible evidence (for instance, actual allegations regarding possession of nuclear weapons), the issue should be submitted to the Security Council. Therefore, member states should not handle the threat solely with armed self-defense actions[16].

Preemptive Self-Defense: An Embedded Self-Defense Right?

There are many interrogations related to the legitimization of preemptive self-defense. Beforehand, it is critical to determine whether Article 51 of the UN Charter has permitted preemptive self-defense or imposes certain conditions for applying a pre-existing, inherent right of self-defense. Undoubtedly, article 51 of the Charter only highlights the forms of self-defense in response to an armed attack. Otherwise, the UN Charter has prohibited preventive or preemptive wars[17]. Now the question is whether the targeted state will wait for the danger to burst yet it had sufficient evidence of the threat or if it will preempt and strike first. If it opts for the second approach, the issue is to know the legal basis of such an attack if the UN Charter is silent on preemptive self-defense. Unquestionably, self-defense must be distinguished from self-help by which states decide military actions independently[18]. This analysis makes me infer that self-defense rights exclude preemptive self-defense because there is no right for self-defense without an armed attack. However, I understand that in the event of a possible attack, a state can start preparations to resist an attack and should bring the matter before the Security Council before taking any action.

The National Strategic Security and the Preemptive Attack as a Self-Defense Right

The US National Strategic Security strived to advance the legal reasoning of preemptive self-defense, insisting that international law has recognized nations to take actions to prevent suffering from an attack. Therefore, they can lawfully take action to defend themselves against imminent danger if they have undoubtful information about the mobilization of armies, navies, and air forces preparing to attack[19]. It means that if a state acts following the strict principles of customary international law by fulfilling the requirements of necessity, proportionality, and imminence, or as put forth in the Caroline Case, self-defense action taken in anticipation of an armed attack will be legitimate[20].

The Right for Self-Defense as a Temporary Right

Beforehand, I must recall that the Charter gave the Security Council the responsibility of maintaining collective peace and security, and the states must report their measures of self-defense to the Security Council[21]. In other words, member states have a right to self-defense, but that right is limited to being temporary. That is to say, the state‘s actions must cease as soon as the Security Council starts taking action[22]. This principle implies that the primary purpose of self-defense is to repel an armed attack, not to go after the attacker or to get revenge. It clarifies that self-defense constitutes a temporary act of armed forces and can not justify a long-term act of armed occupation or annexation[23].

The Six-Day War opposed Egypt and Israel in 1967 contradicted this principle because Israel launched an attack on Egypt‘s airbase on 5 June, destroyed the Egyptian Air Force, and occupied Gaza, the West Bank, the Sinai, and the Golan Heights[24]. Israel alleged that the attack was a response to the transfer of Egypt‘s forces to the border[25]. In this respect, it follows that the nature of its use of force creates concerns with the question of anticipatory self-defense and its lawfulness within because it went beyond repelling the attack and occupied the territories of the aggressor.

Preemptive Self-Defense: An Adequate Counter-Terrorism Measure?

As I discussed in the section above, after the Israeli Strike in 1981, the majority of states demonstrated a common international rejection of preemptive self-defense. In the Cuban Missile case, states usually abstained from publicly using preemptive self-defense as justification. After the hazardous attacks of 11 September, the international community was ready to both accept and adopt a broader right of self-defense against non-imminent attacks. With the Iraqi invasion in 2003, the US self-defense approach openly directed to preemptive self-defense. This sequential analysis establishes a need to expand the right of self-defense under the UN Charter and anticipate and forestall terrorist plans. Otherwise, the cases I discussed in this paper and many others have proved to lack a legal basis for preemptive self-defense actions because they do not support existing international laws.

THE STATUS OF PREEMPTIVE SELF-DEFENSE ATTACK IN INTERNATIONAL LAW

I cannot claim to make an exhaustive list of cases in which states preemptively attacked other states on the pretext of self-defense; instead, I will make a critical discussion on a few cases to demonstrate their illegality in international law and the position of different actors including the Security Council, the states, and the ICJ. Undoubtedly, the practice of terrorism by any person or group is a potential threat to the international community that needs to be resisted by the use of terrorism by all legal means available. In other words, it is critical to conjugate all efforts necessary to prevent or respond to terrorist acts.

Problematic Legitimization of Preemptive Self-Defense

Preemptive self-defense is allegedly used to legitimately use armed force, which responds to a non-instant and non-real danger of armed attack. Thuo Gathii stresses that it is an initiation of military action to anticipate harmful actions that are neither presently occurring nor imminent[26].

The Balance between the Risk of Responding to an Armed Attack and Preemptive Strike

When analyzing the issues of the legitimization of preemptive self-defense, it is critical to consider the likelihood of occurrence of an attack, its imminence, and the state‘s protection against that threat. In another sense, the time and location of the attack are known, but the attack has not yet been launched. Therefore, the justification for using armed force is sought to prevent the attack from becoming real[27]. The dilemma resides in knowing whether a state has to wait for an armed attack to be conducted on its territory before it can invoke the right to self-defense or whether it can use force in order to avert the attacker before the armed attack has occurred. In other words, the burden consists of determining if self-defense can be made before the armed attack by the enemy has been conducted. Some cases exemplify the states‘ anticipatory attacks. For example, in 2003, the USA and Great Britain invaded Iraq and claimed that Iraq possessed and manufactured a program of weapons of mass destruction (WMD) which constituted a future threat[28]. In 1981, Israel attacked and destroyed
Iraq‘s nuclear reactor and claimed a justification because Iraq planned to use the reactors for manufacturing weapons and attacking Israel[29].

The Challenges to Determine the Proportionality of Imminent Attacks

One of the complications of legitimizing preemptive self-defense is the proportionality of forces to an imminent attack[30]. I am convinced that such acts are illegal because they are not a response to a visible manifestation of aggression that can enable to determine the proportionality of used forces; instead, they are grounded in predicting how the feared enemy will likely behave in the future. Furthermore, proportionality may relate more to the duration, size, and target of armed defense. It means the actions should not amount to more than what is strictly needed to conduct repulsion. However, it does not mean that the actions of self-defense have to be made with the same weapons or the same number of armed forces as the attacking state[31].

The Status of Preemptive self-defense under the Provisions of article 51 of the UN Charter

In some cases, states have used force with or without the Security Council authorization outside of the collective security framework envisaged in the UN Charter and absent armed attacks[32]. The UN Charter prohibition against using force has not changed because this preemptive self-defense attack concept has no legal basis in international law. In other words, the UN Charter, which contains the right of self-defense, does not allow States to act preemptively. As a response to the 11 September attack, the Security Council responded by passing Resolution 1368, affirming a member‘s right under Article 51 to respond to terrorist attacks, and Resolution 1373 unanimously forbidding the aiding or funding of terrorist groups and establishing the Council‘s Counter-Terrorism Committee to monitor Member States‘ implementation of its provisions[33].

The Security Council’s Position in the Preemptive Self-Defense

The states that made preemptive self-defense attacks justified that instead of risking waiting for an attack to be imminent or for an actual attack to occur, they acted in advance to avert possible future attacks due to fearfulness[34]. When the USA launched an attack on Panama in December 1989, defeating and reversing the existing government, it justified such an attack as a means to protect the American military and civilians from imminent attacks and danger. Surprisingly, a drafted resolution within the Security Council, marking the invasion as unlawful, was not adopted due to a lack of support by most states (states like Great Britain, France, Canada, and the USA all opposed the resolution) [35]. When the USA launched an attack against Al-Qaeda camps in Afghanistan and Sudan in 1989, alleging that they were producing weapons of mass destruction, that attack was internationally condemned due to lack of evidence for the alleged imminent threats, but the Security Council did not take any actions[36].

What if the Acts Suspected as a Threat to a Targeted State Are Found Inexistent?

The Iraqi invasion is a wake-up call on this matter. When the combined troops of the US, UK, and Australia invaded Iraq on 19 March 2003, the US claimed that Iraq had a program to develop weapons of mass destruction, which created a future threat to the peace and security of both the US and the world[37]. Though the invasion was highly controversial and received much criticism, the discussions did not circle the issue of preemptive self-defense, and the issue was almost not even brought up during the discussions about the lawfulness of the invasion. Additionally, the allegations of the existing threat by Iraq were also dismissed. It later became public that Iraq did not even possess weapons of mass destruction[38].

The Cuban missile crisis in 1962 is another culminant example. The USA claimed that the installation seriously threatened world peace and the security of the United States[39]. In this case, I realize that the USA did not invoke Article 51 of the Charter since there was no imminent threat of an armed attack. The Security Council and the General Assembly condemned the Israeli Strike on the Osirak Nuclear Reactor, Iraq, on 7 June 1981 (except for the USA and Israel, which opposed the resolution), but there were no consequences against that unlawful act.[40]

In an attack on the Syrian Al-Kibar facility in 2007, Israel justified that it attacked the Syrian nuclear reactors in order to prevent Syria from producing nuclear weapons[41]. The discussions above have criticized the lack of legal justification for preemptive self-defense armed attacks. Consequently, armed attacks may end in severe crimes of aggression as defined by Article 1 of the UN General Assembly. Article 3 establishes a list of actions that constitute an act of aggression[42]. In that sense, if a state performs any of the acts established in this list, commits an act of aggression, and should bear the responsibility.

The Security Council’s Passive Role in Pre-emptive Self-Defense Encourages a Self-Help System

In 1975, Israel responded by force when it launched a pre-emptive strike against Palestinian camps in Lebanon[43]. The condemnation of that act by the Security Council and many other countries sounded to a deaf ear because, in 1985, it also attacked the Palestinian Liberation Organization (PLO) headquarters in Tunis. The SC condemned the action by resolution 573 (1985) [44]. South Africa did the same when it attacked the military bases of the African National Congress (ANC) in neighboring countries (Zambia, Lesotho, Swaziland) between 1976 and 1983. It justified such acts as pre-emptive self-defense[45].

In 1986, the USA justified its aircraft-attacked targets in Tripoli as self-defense in response to past terrorist attacks by Libyans on US nationals, as well as to forestall future terrorist action[46]. In 1993, the USA justified its missile fire at the Iraqi intelligence headquarters in Baghdad as a response to an assassination attempt on former US President Bush carried out in Kuwait two months before. The SC remained silent in that act[47]. The same happened in 1998 when the USA fired missiles against Afghanistan and Sudan in response to terrorist attacks carried out on US embassies in Kenya and Ethiopia by persons allegedly harbored by these two States. The SC met briefly and took no action on this state‘s unilateral punitive act[48].

I am concerned about the passive role of the SC in these acts and many others because I realize that the SC has allowed the states to determine on their own what should be termed preventive or punitive acts. It will render the UN Charter useless and encourage the self-help system, leading the world into chaos. In the Nicaragua Case, the ICJ expressly did not pronounce the issue of the legality of a response to an imminent armed attack. For the question of an armed attack, the Court, based on the principles of necessity and proportionality, rejected the US claim of self-defense[49].

THE WAY FORWARD: COMPLEX GLOBAL SECURITY PROBLEMS AND EMERGENCY NEW LAW

In the sections above, I briefly discussed the cases in which some states preemptively made armed attacks against other states and claimed them to be their self-defense right despite the lack of legitimization of such attacks under the UN Charter. Additionally, these acts were supported by a few states, while many others rejected and condemned them. On the other hand, the ICJ rejected the claim to legitimize such acts or did not take a clear position in other cases. However, insecurity threats, especially terrorism, continue to destabilize the international order. In that sense, in this section, I will discuss the need for an emergency new law to accommodate that right, as well as related challenges.

Preemptive Self-Defense Attack: A Need for an Emergency New Law?

The need to modify the current regulations resides in the fact that imminence in today‘s threats can be challenging to determine. More precisely, I agree that rogue states and terrorists do not use conventional means of attack because such attacks are likely to fail. Instead, they potentially use weapons of mass destruction because these weapons can be easily concealed, delivered covertly, and used without warning[50].

The Challenges of the Current International Laws in Regulating Complex and Terrorist Threats

This new system of security threats dictates that the current regulations should be updated to address these new modes of security threats. However, regulations should be precautionary since uncertainty remains about the time and place of the enemy‘s attack, and avoid that some states can abuse it. In other words, due to the modern threats of weapons of mass destruction (WMD) and terrorism, it is critical to analyze some circumstances, like the nature and gravity of the attack and the capacity of the attacker[51].

Military powerful states have also argued that they are responsible for maintaining international order. Therefore, the self-defense exception should be interpreted in that context and according to the purposes of the UN Charter to yield interpretations consistent with its peace and security mandate[52]. This risks becoming the law the powerful states impose if most other member states condemn any previously discussed preemptive attacks. I have highlighted in these cases above how the states that favor preemption push for changing international laws to accommodate their right to act preemptively and to take defensive action based on their perception of national interest and capabilities.

The Prohibition of use of force and the States’ Pressure for an Emergency of a New Law

Beforehand, I must emphasize that the prohibition of the use of force must be maintained even in the face of inconsistent practice. Therefore, I agree with Schachter that state practice inconsistent with international law is not treated as evidence of the emergence of a new rule[53]. I can deduce that such inconsistent practice should be treated as a breach of international law and sanctioned accordingly. It is in this view that the ICJ emphasized in its advisory opinion that simply because a few States have advocated a new doctrine of preemptive war does not, in light of the significant differences of opinion between States, lead to the establishment of an opinion juris in favor of preemption[54].

Regulation of the Rights of Infringed State by Preemptive Self-Defense

Beforehand, I agree with Glennon that the practices of the current states show that the binding nature of international rules concerning the use of force becomes questionable[55]. A few cases I discussed in the sections above demonstrated how fear pushed the states to trespass these rules and attack other states. More particularly, the Cuban Missile Crisis, the US invasion of Panama, the Strike on the Osirak reactor, the Strike on the Syrian Al-Kibar facility, and the US drone strike in 2020 were all based on fear of being subject to an armed attack[56]. These allegedly wrong preemptive self-defense attacks and many other armed force attacks have caused and still cause many losses of lives in different areas of the world, devastating the countries accused of aiding or harboring the terrorists. In that respect, I view that the country, the victim of such allegations, should benefit from compensation once these allegations are proven wrong. I espouse Professor Glennon‘s views that states would use preemptive self-defense as a pretext for aggression, which Article 51 of the UN Charter did not provide[57].

Surprisingly, the ICJ condemned preemptive self-defense acts but did not decide compensation rights. Undoubtedly, the negative results have been increasing tensions, mistrust, and mobilization of forces, including strivings to develop hazardous weapons.

To What Extent Can a Targeted State Preemptively Self-Defend?

The targeted states self-defend preemptively even before the bullets fly from an enemy; self-defense may begin if the necessity is overwhelming. For example, when Israel. Israel destroyed Egyptian fighter planes in formation for take-off in 1967 and engaged in lawful, anticipatory self-defense against Egypt because Israel could not demonstrate that Egypt was planning to attack Israel[58]. According to this example, there must be a plan for the attack, and the plan must be in the course of implementation.

In that sense, referring to the example above of the Israeli attack against Egypt, once planes are in formation to implement a known plan of attack, a defending state would be justified in launching a preemptive attack in self-defense[59]. It means that the state, already a victim, may use self-defense even if the subsequent attacks are not yet underway. For example, if terrorists are planning a series of attacks, the state may respond to prevent future attacks about which it has evidence. Simply put, force may be used to avoid any further delay that would result in an inability by the threatened state to defend against or avert the attack against it effectively. I had seen that the Security Council took the exact position of self-defense in these circumstances following the 11 September attacks, when it indicated that self-defense would be justified even at a time when no further attacks were underway[60].

Addressing Anticipated Challenges of Legitimization of Preemptive Self-Defense

I have demonstrated above that 11 September became an overwhelming situation and exercised pressure on the Security Council. However, I understand that the fact that only several states have claimed this right, inconsistently and during shorter periods, cannot be found to constitute the nature of an internationally recognized custom. In other words, it is critical to prevent a few individual and militarily powerful states from grabbing the opportunity of the existing security pressure to develop and create customary norms that suit their own politics and security aspects. I agree with O‘Connell when stressing that if the United States happens to create a precedent with its attacks (for example, the attack on Iraq in 2003), all other states will be able to take hold of it[61]. I can infer that if a state in the world feels that another state could become dangerous to it, the first state can refer to the US attack against Iraq or elsewhere, regardless of whether it has evidence of the other state‘s intentions.

If this preemptive self-defense right is not provided for by the UN Charter and international customary law, it would then be an international law that, due to the changes in the world, is based exclusively on those rules that the states are willing to accept today[62]. It is in the sense that international law governs relations between independent States. Therefore, states create the rules governing them in conventions or abide by the principles of law and establish to regulate the relations between those co-existing independent communities or achieve common aims[63]. Another challenge that I anticipate with the proposal for new regulation is that many states will not, due to political interests, publicly criticize their actions by establishing it as an unlawful act. On that logic, it is even more unlikely that the General Assembly and Security Council will adopt condemning resolutions.

CONCLUSION

The international community had witnessed the horrors and brutality of the two World Wars and committed to maintaining international peace and security by limiting the use of armed force against any state. The guiding principle behind it is Article 2 (4) of the UN Charter prohibiting the use of force, and Article 51 provides for exceptions for use of force when the Security Council has to keep the peace as provided in Chapter VII of the Charter, or for the state‘s individual or collective self-defense. Different cases that I discussed in this paper prove how some states trespassed these regulations of the Charter and attacked other states on the pretext of preemptive self-defense, and pushed for legitimization of such attacks.

Concerning the legitimacy of self-defense, I have critically emphasized a critical condition by which an attack must be underway or must have already occurred in order to exercise the right of unilateral self-defense. This aspect is lacking in preemptive self-defense. Otherwise, any earlier response requires the approval of the Security Council. In other words, there is no self-appointed right to attack another state because of fear that the state will attack or develop weapons usable in a hypothetical campaign. Any related attack should be condemned as a crime of aggression, and the infringing state should bear the responsibility. Surprisingly, the ICJ has rejected claims of preemptive self-defense attacks but has never ruled on the consequences of the aggressor nor the compensation rights of the aggrieved state. In that sense, preemptive self-defense cannot be seen as lawful due to the lack of legal basis and sufficient support within the international community. Therefore, there is a need for enforcement measures of the provisions of the Charter for them to be observed and for these wrong allegations to be avoided. On the other hand, there is a need to update the UN Charter and other related international laws to accommodate the current problems since the world evolves with emerging and complex problems. However, these updates and amendments must go through a rigorous process instead of resulting from the legitimization pressure by some states.

Finally, the prohibition to use armed forces must be rigorously observed. Even when a state is legally entitled to use force, there should be strict conditions for prudence and exceptions that can limit the exercise of that right. Therefore, the Security Council should comply with its obligations to ensure peace and security before states individually decide to address the security issues.

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Smith, Imran O. ―Terrorism, Pre-Emptive Self-Defense, and State Interests: What Challenges for Contemporary International Legal Order?‖ Amicus Curiae, January 1, 2006, 14–24. https://doi.org/10.14296/ac.v2006i67.1133.
Sofaer, Abraham D. ―On the Necessity of Preemption.‖ European Journal of International Law 14, no. 2 (2003): 209–26.
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———. UN General Assembly Resolution 3314 (XXIX) (1974).
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List of Footnotes

[1]United Nations, ―Charter of the United Nations and Statute of the International Court of Justice, Pub. L. No. 1 U.N.T.S. XVI (1945), art. 2(4).
[2]United Nations, Charter of the United Nations and Statute of the International Court of Justice Art. 51.
[3]Ian Brownlie, International Law and the Use of Force by States (New York: Oxford University Press, 1963), 275.
[4]Onder Bakircioglu, ―The Right to Self-Defense in National and International Law: The Role of the Imminence Requirement, Indiana International & Comparative Law Review19, no. 1 (January 1, 2009): 8, https://doi.org/10.18060/17598.
[5]Daniel Bethlehem, ―Self-Defense Against an Imminent or Actual Armed Attack by Non-State Actors,‖ Journal of International Law 106, no. 4 (2012): 775,
https://doi.org/10.5305/amerjintelaw.106.4.0769. Accessed 3 January 2024.
[6]International Court of Justice, Oil Platforms (judgment) (n 100) (International Court of Justice December 12, 1996) para. 73.
[7]International Court of Justice, Judgment (Merits) of 27 June 1986, ―Case Concerning Military and Paramilitary Activities in and Against Nicaragua: (Nicaragua v. USA),‖ No. 70 (ICJ June 27, 1986) paras. 195, 230.
[8]Judith Gardam, ―Proportionality and Force in International Law,‖ American Journal of International Law 87 (1993): 391.
[9]United Nations, Charter of the United Nations and Statute of the International Court of Justice, art. 51.
[10]David Rodin, ―War and Self-Defense,‖ The Modern Law Review 66, no. 3 (2003): 484, https://doi.org/10.1111/1468-2230.6603014. Accessed 19 December 2024.
[11]Christine Gray, International Law, and the Use of Force, 3rd ed. (Oxford University Press, 2008), vi.
[12]Michael Wood, The Use of Force in International Law: A Case-Based Approach, ed. Tom Ruys, Olivier Corten, and Alexandra Hofer, 1st. Ed (Oxford: Oxford University Press, 2018), 2.
[13]Sean D Murphy, ―The Doctrine of Preemptive Self-Defense,‖ Villanova Law Review 50, no. 3 (2005): 2, https://digitalcommons.law.villanova.edu/vlr/vol50/iss3/9. Accessed December 25, 2023.
[14]Mary Ellen O‘Connell, ―Lawful Self-Defense to Terrorism,‖ 63 U. Pitt. L. Rev. 63, no. 889 (2002): 8, https://scholarship.law.nd.edu/law_faculty_scholarship/599. Accessed December 22, 2023.
[15]Marie E Siesseger, ―Conspiracy Theory: The Use of the Conspiracy Doctrine in Times of National Crisis, William and Mary Law Review 46, no. 3 (2005 2004): 1202,
https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1280&context=wmlr. Accessed 27 December 2023.
[16]Bethlehem, ―Self-Defense Against an Imminent or Actual Armed Attack by Non-State Actors,‖ 773.
[17]V A V Andreias, ―Anticipatory Self-Defense in International Faw: Legal or Just a Construct for Using Force?,‖ n.d., 4, https://arno.uvt.nl/show.cgi?fid=122935. Accessed December 25, 2023.
[18]Joseph L. Kunz, ―Individual and Collective Self-Defense in Article 51 of the Charter of the United Nations,‖ The American Journal of International Law 41, no. 4 (October
1947): 6.
[19]The National Security Strategy of the United States of America (Washington: President of the U.S., 2002), 15, http://www.whitehouse.gov/nsc/nss.pdf. Accessed 30 December 2023.
[20]Malcolm N. Shaw, International Law, 5th ed (Cambridge, U.K. ; New York: Cambridge University Press, 2003), 1025.
[21]United Nations, Charter of the United Nations and Statute of the International Court of Justice, Art. 51.
[22]Mary Ellen O‘Connell, ―Lawful Self-Defense to Terrorism,‖ University of Pittsburgh Law Review 63 (2002): 6.
[23]Jan Klabbers, International Law, 2nd ed. (Cambridge University Press, 2017), 208.
[24]Gray, International Law, and the Use of Force, 161.
[25]Franck M. Thomas, Recourse to Force: State Action against Threats and Armed Attacks (Cambridge University Press, 2002), 103.
[26]James Thuo Gathii, ―Assessing Claims of a New Doctrine of Pre-Emptive War under the Doctrine of Sources,‖ Osgoode Hall Law Journal 43, no. 1 (January 1, 2005): 77, https://doi.org/10.60082/2817-5069.1345.
[27]Antony Clark Arend and Rober J. Beck, International Law and the Use of Force: Beyond the UN Charter Paradigm (London, New York: Routledge, 1993), 74–79.
[28]Encyclopedia Britannica, ―Iraq War,‖ 2019, https://www.britannica.com/event/IraqWar Accessed 26 December 2023.
[29]Encyclopedia Britannica.
[30]Bakircioglu, ―The Right to Self-Defence in National and International Law,‖ 8.
[31]Kimberley N Trapp, ―Back to Basics: Necessity, Proportionality, and the Right of Self-Defense against Non-State Terrorist Actors,‖ The International and Comparative Law Quarterly 56, no. 1 (n.d.): 7.
[32]Michael Glennon, ―Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter,‖ Harvard Journal of Law and Public Policy 25 (2002): 539.
[33]Imran O. Smith, ―Terrorism, Pre-Emptive Self-Defense, and State Interests: What Challenges for Contemporary International Legal Order?,‖ Amicus Curiae, January 1, 2006, 18, https://doi.org/10.14296/ac.v2006i67.1133.
[34]Abraham D. Sofaer, ―On the Necessity of Preemption, European Journal of International Law 14, no. 2 (2003): 210.
[35]―S/21048 of 22 December 1989.‖ (UN Security Council Doc., December 22, 1989), https://digitallibrary.un.org/record/81789?ln=fr. Accessed 27 December 2023.
[36]John Yoo, ―International Law and the War in Iraq,‖ American Journal of International Law 97, no. 3 (2003): 167–69, https://doi.org/10.2307/3109841.
[37]Gray, International Law, and the Use of Force, 443.
[38]―Letter to the Security Council‖ (UN Doc. S/2003/351, March 20, 2003).
[39]Gray, International Law, and the Use of Force, 170.
[40]―UN Doc. S/PV.2288, Security Council Official Records,‖ June 19, 1981; ―S/21048 of 22 December 1989.‖
[41]―Israel Admits Striking Suspected Syrian Nuclear Reactor in 2007,‖ March 21, 2018, https://www.bbc.com/news/world-middle-east-43481803. Accessed 27 December 2023.
[42]United Nations, ―UN General Assembly Resolution 3314 (XXIX)‖ (1974), Art. 2 and 3 (Definition of Aggression).
[43]UN Security Council (30th, Security Council Resolution 384 (1975) (December 22, 1975) at II, para. 99.
[44]UN Security Council, Security Council Resolution 573 (1985) (October 4, 1985) para. 285.
[45]UN Security Council, Security Council resolution 418 (1977) [South Africa], S/RES/418 (1977) (November 4, 1977).
[46]Gregory Francis Intoccia, ―American Bombing of Libya: An International Legal Analysis,‖ Case Western Reserve Journal of International Law 19 Case W. Res. J. Int’l L., no. 2 (1987): 4.
[47]Stuart G Baker, ―Comparing the 1993 U.S. Air Strike on Iraq to the 1986 Bombing of Libya: The New Interpretation of Article 51‖ 24 (1994): 4–5.
[48]Baker, 3.
[49]International Court of Justice, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (June 27, 1986) para. 194.
[50]Tom Ruys, Armed Attack’ and Article 51 of the UN Charter, Evolutions in Customary Law and Practice (Cambridge University Press, 2010), 250–51.
[51]Lubell Noam, The Problem of Imminence in an Uncertain World, ed. Marc Weller, The Oxford Handbook of the Use of Force in International Law (Oxford University Press, 2015), 703–4.
[52]W. Michael Reisman, ―Coercion and Self Determination-Construing Article 2(4), American Journal of International Law 78 (1984): 642.
[53]Oscar Schachter, ―Entangled Treaty and Custom‘ in Yoram Dinstein, in International Law at a Time of Perplexity: Essays in Honor of Shabtai Rosenne (Boston: M. Nijhoff, 1989), 733–34.
[54]International Court of Justice, ―Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons,‖ Advisory Opinion (ICJ, July 8, 1996),
https://law.justia.com/cases/foreign/international/1996-icj-rep-66.html. Accessed 30 December 2023 supra note 6 at 254.
[55]Glennon, ―Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter,‖ 540.
[56]Sofaer, ―On the Necessity of Preemption,‖ 213.
[57]Michael Glennon, ―Preempting Terrorism: The Case for Anticipatory Self-Defense, The Weekly Standard, January 28, 2002, 24, https://fletcher.tufts.edu/facultyresearch/research-publications/preempting-terrorism-case-anticipatory-self-defense. Accessed 30 December 2023.
[58]John Quigley, ―The Afghanistan War and Self-Defense‖ 37, no. 2 (2003): 208.
[59]O‘Connell, ―Lawful Self-Defense to Terrorism,‖ 2002, 9.
[60]UN Security Council, UN S.C. Res. 1368 (2001) (n.d.).
[61]Mary Ellen O‘Connell, ―The Myth of Preemptive Self-Defense,‖ The American Society of International Law, August 2002, 19, https://www.nyccriminallawyer.com/wpcontent/uploads/2014/07/oconnell.pdf. Accessed 27 December 2023.
[62]Arend and Beck, International Law and the Use of Force: Beyond the UN Charter Paradigm, 93.
[63]Charles Pierson, ―Preemptive Self-Defense in an Age of Weapons of Mass Destruction: Operation Iraqi Freedom,‖ Denver Journal of International Law& Policy 33, no. 1 Winter (January 2004): 159

Jean Marie Vianney Sikubwabo

Accredited court Mediator, university Lecturer, doctoral student (EUCLID university)

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