How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/
EDITORIAL NOTE *
The author of this article works at the United Nations High Commissioner for Refugees; the views expressed here are his own and do not reflect the official position, past, present or future, of the United Nations or of UNHCR.
ABSTRACT *
This article examines the legal status of preemptive self-defence under international law and argues that the Charter framework has not been updated to accommodate contemporary security threats, particularly terrorism, leaving a regulatory vacuum. The author sets out the conditions governing lawful self-defence, namely necessity, proportionality and imminence, and distinguishes preemptive action against an imminent attack from preventive action against a merely possible future threat. A survey of state practice follows, covering the Cuban missile crisis, the Israeli strike on the Osirak reactor, the invasions of Panama and Iraq, strikes in Libya, Sudan and Afghanistan, and the attack on the Syrian facility at Al Kibar, together with the responses of the Security Council and the International Court of Justice. The author finds that no such action has been formally validated, that condemnation has been inconsistent, and that the resulting silence encourages a system of self help. The article closes by considering whether new regulation is needed, what safeguards it would require, and whether a state wrongly accused of harbouring a threat should have a right to compensation.
KEYWORDS *
Self-defence, Article 51, preemptive self-defence, anticipatory self-defence, imminence, necessity, proportionality, Caroline formula, Security Council, terrorism, aggression, customary international law
INTRODUCTION
Article 2(4) of the United Nations 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. This prohibition of the threat or use of force aims to preserve peace and security between the Members, avoid aggression and the traditional self-help system, by focusing on the peaceful settlement of disputes. There are two exceptions to this prohibition: measures authorized by the Security Council as stipulated in Chapter VII of the Charter, and self-defence according to Article 51. However, despite these prohibitions, states have used armed force preemptively. Surprisingly, neither has the Security Council formally validated any preemptive self-defence attack, nor has the International Court of Justice given an affirmative advisory opinion or ruled positively on a related case.
Additionally, many states have publicly condemned preemptive self-defence armed attacks conducted by other UN member states. At the same time, 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-defence within the UN Charter causes different interpretations of self-defence as provided by the Charter. In that respect, I argue that international law has created a vacuum in regulating states’ self-defence 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 invoke the concept of self-defence, intending to study the legitimacy of preemptive self-defence under the right of self-defence. In the second section, I discuss the status of preemptive self-defence rights based on a few cases before the International Court of Justice and the Security Council. My primary aim was to identify the international regulatory loopholes in preemptive self-defence and how these bodies interpret and apply the UN Charter and other customary laws in line with preemptive self-defence rights. In the final section, I focus critically on challenges to anticipate with new regulations, the compensation right for the infringed state of preemptive attacks, and its usefulness in combating terrorism.
MAIN CORPUS
Self-defence: a lawful use of armed force
I must recall that Article 51 establishes that self-defence is permissible if an armed attack occurs. In other words, self-defence of any preventive or preemptive nature is prohibited under Article 51 on its literal terms. Hence, I agree with Brownlie that the right to self-defence was constituted only as an exception to the general prohibition on using force and with the limitation of being subordinate to the Security Council.
Conditional legitimization of use of force for self-defence
Self-defence 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. 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.
In the Oil Platforms case, the ICJ clarified that the test of whether self-defence was necessary was a strict and objective condition, leaving no room for any measure of discretion. If these conditions are strictly applicable to self-defence, there should be even stricter regulation of preemptive self-defence instead of leaving that decision under the unilateral discretion of states. Moreover, the Security Council should act quickly and adequately to prevent imminent danger from turning 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 Salvadorean rebels, the Court held that even if it had done so, an armed attack was not proportional to the supply of weapons. From this case, I can infer that a state must resort to measures less than armed self-defence 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. 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 in relation to the concrete and direct military advantage anticipated.
The legality of preventive and preemptive self-defence
I must emphasize that self-defence is a right entitled to the state victim of an attack, that is, self-defence against an actual attack. The issue is when states extend that right to prevent or preempt attacks. These two concepts differ in that preemptive self-defence, that is, self-defence against an imminent attack, is argued by some to be permissible, whereas preventive self-defence, where there is no imminent threat, is not.
According to this analysis, preemptive self-defence 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-defence, 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. According to the Caroline incident, the state is in a situation of necessity which is overwhelming, leaving no moment for deliberation and 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 a small rebel-operated vessel.
Justification of preventive self-defence: a lesson from the terrorist attacks of 11 September 2001
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. The issue with the attack on Iraq is that the threat was not imminent for the targeted state to act preemptively.
The USA and its allies defended Operation Enduring Freedom against Afghanistan on the basis that the 11 September attacks were part of a series of attacks on the United States which began in 1993. In this process, the USA pointed to Bin Laden’s connection with the 1993 attack on the World Trade Center, the 1998 embassy bombings in Nairobi and Dar es Salaam, and other terrorist attacks. The unique nature of this threat had proved the Security Council’s inability to take practical action using Chapter VII enforcement powers against an enduring terrorist threat comprised of past and imminent armed attacks. Therefore, states had no means to counter that threat other than using questionable defensive armed force.
Imminence of threat as a significant factor
In the case of the Iraqi invasion, the High-level Panel established that a state can act in self-defence 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-defence actions.
Preemptive self-defence: an embedded right?
There are many questions related to the legitimization of preemptive self-defence. It is critical to determine whether Article 51 of the UN Charter has permitted preemptive self-defence or imposes certain conditions for applying a pre-existing, inherent right of self-defence. Article 51 of the Charter only addresses self-defence in response to an armed attack. Otherwise, the UN Charter has prohibited preventive or preemptive wars. Now the question is whether the targeted state will wait for the danger to burst even though it had sufficient evidence of the threat, or whether 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-defence. Unquestionably, self-defence must be distinguished from self-help by which states decide military actions independently. This analysis makes me infer that self-defence rights exclude preemptive self-defence because there is no right of self-defence 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.
National security strategy and the preemptive attack as a self-defence right
The US National Security Strategy strived to advance the legal reasoning of preemptive self-defence, insisting that international law has recognized that nations may take action to prevent suffering from an attack. Therefore, they can lawfully take action to defend themselves against imminent danger if they have undoubted information about the mobilization of armies, navies, and air forces preparing to attack. 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-defence action taken in anticipation of an armed attack will be argued to be legitimate.
Self-defence as a temporary right
I must recall that the Charter gave the Security Council the responsibility of maintaining collective peace and security, and states must report their measures of self-defence to the Security Council. In other words, member states have a right to self-defence, 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. This principle implies that the primary purpose of self-defence is to repel an armed attack, not to go after the attacker or to take revenge. It clarifies that self-defence constitutes a temporary act of armed force and cannot justify a long-term act of armed occupation or annexation.
The Six-Day War between Israel and Egypt in 1967 raises this question, because Israel launched an attack on Egypt’s airbases on 5 June, destroyed the Egyptian Air Force, and occupied Gaza, the West Bank, the Sinai, and the Golan Heights. Israel argued that the attack was a response to the transfer of Egypt’s forces to the border and the closure of the Straits of Tiran. In this respect, it follows that the nature of the use of force raises the question of anticipatory self-defence and its lawfulness, because it went beyond repelling an attack and led to the occupation of territory.
Preemptive self-defence as a counter-terrorism measure
As I discussed above, after the Israeli strike of 1981, the majority of states demonstrated a common international rejection of preemptive self-defence. In the Cuban missile case, states usually abstained from publicly using preemptive self-defence as justification. After the attacks of 11 September, parts of the international community appeared readier to accept a broader right of self-defence against non-imminent attacks. With the Iraqi invasion in 2003, the US self-defence approach openly turned to preemptive self-defence. This sequential analysis establishes a claimed need to expand the right of self-defence under the UN Charter to anticipate and forestall terrorist plans. Otherwise, the cases I discussed in this paper and many others have been found to lack a legal basis because they do not accord with existing international law.
The status of preemptive self-defence 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-defence; instead, I will discuss a few cases critically to demonstrate their illegality in international law and the position of different actors, including the Security Council, 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 all lawful means available. In other words, it is critical to conjugate all efforts necessary to prevent or respond to terrorist acts.
Problematic legitimization
Preemptive self-defence is allegedly used to legitimize the use of armed force in response 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.
The balance between the risk of responding to an armed attack and a preemptive strike
When analyzing the issues of the legitimization of preemptive self-defence, 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 may be 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. 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-defence, or whether it can use force to avert the attacker before the armed attack has occurred. Some cases exemplify states’ anticipatory attacks. For example, in 2003, the USA and Great Britain invaded Iraq and claimed that Iraq possessed and manufactured a programme of weapons of mass destruction which constituted a future threat. In 1981, Israel attacked and destroyed Iraq’s nuclear reactor and claimed a justification because Iraq planned to use the reactor for manufacturing weapons and attacking Israel.
The challenge of determining proportionality of imminent attacks
One of the complications of legitimizing preemptive self-defence is the proportionality of force to an imminent attack. I am convinced that such acts are illegal because they are not a response to a visible manifestation of aggression that would enable one to determine the proportionality of the force used; 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 defence. It means the actions should not amount to more than what is strictly needed to repel the attack. However, it does not mean that the actions of self-defence have to be made with the same weapons or the same number of armed forces as the attacking state.
The status of preemptive self-defence under Article 51
In some cases, states have used force with or without Security Council authorization outside of the collective security framework envisaged in the UN Charter and absent armed attacks. The UN Charter prohibition against using force has not changed, because the concept of preemptive self-defence attack has no legal basis in international law. In other words, the UN Charter, which contains the right of self-defence, does not allow states to act preemptively. As a response to the 11 September attack, the Security Council passed Resolution 1368, affirming the right under Article 51, and Resolution 1373 unanimously forbidding the aiding or funding of terrorist groups and establishing the Counter-Terrorism Committee to monitor member states’ implementation of its provisions.
The Security Council’s position
The states that made preemptive self-defence attacks justified them on the basis 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. 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 American military personnel and civilians from imminent attacks and danger. Surprisingly, a draft resolution within the Security Council marking the invasion as unlawful was not adopted due to a lack of support by permanent members. When the USA launched attacks against camps in Afghanistan and Sudan in 1998, alleging that they were producing weapons of mass destruction, that attack was internationally criticised due to lack of evidence for the alleged imminent threats, but the Security Council did not take any action.
What if the acts suspected as a threat are found not to exist?
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 programme to develop weapons of mass destruction, which created a future threat to the peace and security of both the US and the world. Though the invasion was highly controversial and received much criticism, the discussions did not circle the issue of preemptive self-defence, 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 possess weapons of mass destruction.
The Cuban missile crisis in 1962 is another culminating example. The USA claimed that the installation seriously threatened world peace and the security of the United States. 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 in Iraq on 7 June 1981, but there were no consequences for that unlawful act.
In an attack on the Syrian Al-Kibar facility in 2007, Israel justified striking the Syrian nuclear reactor in order to prevent Syria from producing nuclear weapons. The discussions above have criticized the lack of legal justification for preemptive self-defence armed attacks. Consequently, armed attacks may amount to the crime of aggression as defined in the General Assembly’s Definition of Aggression. Article 3 establishes a list of actions that constitute an act of aggression. In that sense, if a state performs any of the acts established in this list, it commits an act of aggression and should bear responsibility.
The Security Council’s passive role encourages a self-help system
In 1975, Israel launched a strike against Palestinian camps in Lebanon. The condemnation of that act by the Security Council and many other countries fell on deaf ears because, in 1985, it also attacked the Palestine Liberation Organization headquarters in Tunis. The Council condemned the action by Resolution 573 (1985). South Africa did the same when it attacked bases of the African National Congress in neighbouring countries between 1976 and 1983, justifying such acts as preemptive self-defence.
In 1986, the USA justified its aircraft attacks on targets in Tripoli as self-defence in response to past terrorist attacks by Libyans on US nationals, as well as to forestall future terrorist action. In 1993, the USA justified its missile strike on 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 Council remained silent on that act. 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 Tanzania by persons allegedly harboured by these two states. The Council met briefly and took no action on this unilateral punitive act.
I am concerned about the passive role of the Council in these acts and many others, because I realize that the Council has allowed 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 on the issue of the legality of a response to an imminent armed attack. On the question of an armed attack, the Court, based on the principles of necessity and proportionality, rejected the US claim of self-defence.
The way forward: complex global security problems and 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-defence 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 new law to accommodate that right, as well as related challenges.
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.
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 an enemy’s attack, and should avoid the risk that some states abuse them. In other words, due to the modern threats of weapons of mass destruction and terrorism, it is critical to analyze circumstances such as the nature and gravity of the attack and the capacity of the attacker.
Militarily powerful states have also argued that they are responsible for maintaining international order. Therefore, the self-defence 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. This risks becoming the law that powerful states impose, if most other member states condemn any of the previously discussed preemptive attacks. I have highlighted in these cases how the states that favour preemption push for changing international law to accommodate their right to act preemptively and to take defensive action based on their perception of national interest and capabilities.
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. 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 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 opinio juris in favour of preemption.
Regulation of the rights of a state infringed by preemptive self-defence
I agree with Glennon that the practice of states shows that the binding nature of international rules concerning the use of force becomes questionable. A few cases I discussed in the sections above demonstrated how fear pushed 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. These allegedly wrongful preemptive self-defence attacks and many other armed attacks have caused and still cause many losses of life in different areas of the world, devastating the countries accused of aiding or harbouring terrorists. In that respect, I take the view that a country that is the victim of such allegations should benefit from compensation once these allegations are proven wrong. I espouse Professor Glennon’s view that states would use preemptive self-defence as a pretext for aggression, which Article 51 of the UN Charter did not provide for.
Surprisingly, the ICJ has condemned preemptive self-defence acts but has not decided on compensation rights in this context. Undoubtedly, the negative results have been increasing tensions, mistrust, and mobilization of forces, including efforts to develop hazardous weapons.
To what extent can a targeted state preemptively self-defend?
Some argue that targeted states may self-defend preemptively even before the bullets fly from an enemy, and that self-defence may begin if the necessity is overwhelming. According to this line of argument, there must be a plan for the attack, and the plan must be in the course of implementation. In that sense, once planes are in formation to implement a known plan of attack, a defending state would on this view be justified in launching a preemptive attack in self-defence. It means that the state may use self-defence even if the subsequent attacks are not yet under way. 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 a comparable position on self-defence in these circumstances following the 11 September attacks, when it indicated that self-defence would be justified even at a time when no further attacks were under way.
Addressing anticipated challenges of legitimization
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 existing security pressure to develop and create customary norms that suit their own politics and security interests. I agree with O’Connell when she stresses that if the United States creates a precedent with its attacks, all other states will be able to take hold of it. 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-defence 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. It is in this 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 established to regulate the relations between those co-existing independent communities or to achieve common aims. Another challenge that I anticipate with the proposal for new regulation is that many states will not, due to political interests, publicly criticize the actions of others by establishing them as unlawful acts. On that logic, it is even less likely that the General Assembly and Security Council will adopt condemning resolutions.
SUMMARY *
The article’s argument turns on a distinction and an observation. The distinction is between preemption against an imminent attack, which has at least an arguable basis in the Caroline formula and in the debate over whether Article 51 preserved a pre-existing customary right, and prevention against a possible future threat, which has none. The observation is that the practice surveyed here has overwhelmingly been of the second kind while invoking the vocabulary of the first, and that the response has been condemnation in some cases, silence in others, and consequences in none. From this the author draws two conclusions: that the absence of consistent enforcement does more to erode the prohibition than any doctrinal argument for preemption, and that a state wrongly identified as a threat has no remedy for what is done to it.
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, while Article 51 provides for exceptions for the use of force where the Security Council acts to keep the peace as provided in Chapter VII of the Charter, or for a state’s individual or collective self-defence. 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-defence, and pushed for legitimization of such attacks.
Concerning the legitimacy of self-defence, I have critically emphasized a critical condition by which an attack must be under way or must have already occurred in order to exercise the right of unilateral self-defence. This aspect is lacking in preemptive self-defence. 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 responsibility. Surprisingly, the ICJ has rejected claims of preemptive self-defence attacks but has never ruled on the consequences for the aggressor nor on the compensation rights of the aggrieved state. In that sense, preemptive self-defence 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 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 legitimization pressure by some states.
Finally, the prohibition on the use of armed force must be rigorously observed. Even when a state is legally entitled to use force, there should be strict conditions of prudence and exceptions that 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 security issues.
POTENTIAL SOLUTION *
The article’s insistence on the distinction between preemption and prevention is the most valuable thing in it, and one clarification would strengthen the case considerably. The debate is not primarily about whether imminence permits anticipation but about what imminence means. The Caroline formula, instant and overwhelming, leaving no moment for deliberation, was devised for an age in which massing troops could be observed and the interval between decision and attack was measurable. Where an attack may be delivered without visible preparation, temporal proximity ceases to be a workable test, and the contemporary debate turns on whether it should be replaced by an assessment of the last feasible window in which action can be effective. That reformulation is where the risk of abuse lies, since it substitutes an assessment made by the acting state for a fact that others could verify, and identifying it precisely is more useful than arguing over labels.
The compensation question the author raises is more novel than the article claims and deserves developing. The framework exists: a state that uses force unlawfully commits an internationally wrongful act and owes reparation under the general law of state responsibility, and the International Court has awarded reparation for unlawful use of force, most substantially in the Congo against Uganda judgment of 2022. What is missing is not the principle but the forum, since jurisdiction depends on consent and no state that has used force preventively has been willing to submit. The practical proposals therefore concern jurisdiction rather than doctrine: acceptance of the Court’s compulsory jurisdiction, compromissory clauses in security treaties, and the possibility of advisory opinions requested by the General Assembly, which requires no consent from the state concerned.
Two points about the article’s central worry about precedent are worth adding. First, the concern is empirically supported: doctrines developed by powerful states have been invoked by others, and the arguments advanced in 2003 and afterwards have since appeared in the justifications offered for interventions that their original authors condemned. That is the strongest argument against relaxing the rule, and it is an argument of self interest rather than of principle, which makes it more likely to persuade. Second, the article’s account of the Council’s passivity identifies the real mechanism of erosion. A prohibition is not weakened by violations, which every legal system has, but by responses that vary with the identity of the violator. Consistent condemnation preserves a rule even where it cannot be enforced; selective condemnation converts it into a question of who is acting.
Finally, one observation belongs in this journal. The article treats the choice as lying between striking first and waiting to be struck, and the interval between those options is precisely where this field works. Crisis communication channels, verification arrangements, third party inspection, mediated de escalation and the referral of a suspected programme to a technical body are all means of resolving the uncertainty on which preemption claims rest, and several of the cases the author lists were preceded by periods in which such measures were available and not seriously attempted. The Iraqi case is the clearest, since inspection was under way and reporting negatively when force was used. That is not a legal argument but a practical one, and it is the strongest available: the necessity that preemption invokes is very often a necessity that was created by declining the alternatives.
* Added by the WMO Editorial Team
REFERENCES
[Bibliography and footnotes as in the original manuscript]Supplementary references added by the WMO Editorial Team
Charter of the United Nations, 1945, Articles 2(4), 39, 42 and 51.
International Court of Justice, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), judgment on reparations, 9 February 2022.
Report of the High level Panel on Threats, Challenges and Change (2004). A More Secure World: Our Shared Responsibility, United Nations, New York, paragraphs 188 to 192.
Amendments to the Rome Statute of the International Criminal Court on the crime of aggression, Kampala, 2010, and their activation in 2018.
Chatham House Principles of International Law on the Use of Force in Self Defence, 2005.
Bethlehem, D. (2012). Principles Relevant to the Scope of a State’s Right of Self Defense against an Imminent or Actual Armed Attack by Nonstate Actors. American Journal of International Law, 106(4), 770 to 777.
Dinstein, Y. (2017). War, Aggression and Self Defence (6th edition). Cambridge University Press, Cambridge.
Corten, O. (2021). The Law Against War (2nd edition). Hart Publishing, Oxford.
