Anticipatory self-defence

1. Anticipatory self-defence Current Legal Issues: the use of force in international law Dr Myra Williamson Kuwait International Law School Spring 2014

2. Reading • The background reading for this class can be found in these books: • Abbas, A International Law: Text, Cases and Materials (Oxford University Press, 2012) at 372-378 • Shaw, M International Law 6thed pp1137 – 1140 • In addition, please check this summary on wikipedia for further information: http://en.wikipedia.org/wiki/Preemptive_war

3. What is “anticipatory self-defence”? • This is a term used in international law which means using force BEFORE an armed attack has taken place • It is sometimes called “pre-emptive self-defence” – because a State uses force first, to pre-empt the attack which they think is going to occur • To “anticipate” means to act first, before the event occurs • In the context of this course, it means attacking the enemy first, before they attack you (translated as “darbahistibaqia”?) • Why would this happen? If a state fears it will be attacked, it uses force first – it’s like “striking first” to prevent the expected attack from happening • For example, if state A is afraid of state B, and thinks state B will attack it in the future (mustakbal), state A might attack first. • This would be an example of ‘anticipatory self-defence’ if state A acted to prevent an attack from state B

4. What does the law say? • Article 51 states that: • Nothing in the UN Charter impairs (let’s say ‘harms’ or ‘damages’) a state’s inherent right to use force in self-defenceIF an armed attack occurs… • It seems that there must be an armed attack first • The word “if” is like a condition: • “If” an armed attack occurs, then the state can use force in SD • So if an armed attack has not yet occurred, the state cannot use force? • Art 51, read literally “(harfian”?) seems to say that there is no right of anticipatory self-defence – there must be an armed attack first,

5. Conflicting views • Scholars of international law don’t agree • Some say that Article 51 requires an armed attack to occur first. Therefore, there is no right of anticipatory self-defence at all (see YoramDinstein, Ian Brownlie) • Others say that because of the word “inherent”, we must look at pre-Charter law. Pre-Charter law did allow anticipatory self-defence and that survived after the UN Charter was enacted…so, if there was a right of anticipatory self-defence before the Charter came along then it must still exist today • What was the pre-Charter rule? • Grotius • The Caroline case

6. Hugo Grotius on pre-emptive war • We looked at Grotius earlier under the heading of “Just war” • He’s sometimes called ‘the father of international law’ • He wrote a famous book – On the Laws of War and Peace in 1623-24 • It contains many of the fundamental rules of international law as they were understood in the pre-Charter era • On anticipatory or pre-emptive self-defence Grotius wrote that the danger must be imminent: “…The danger…must be immediate and imminent in point of time. But those who accept fear of any sort as justifying anticipatory slaying are themselves greatly deceived…”

7. The Caroline case (yes, its that case again!) • Remember the facts : The British Navy set the boat (the SS Caroline) on fire and sent it over Niagara Falls, killing one American (Amos Durfee) • There was an exchange of diplomatic letters between Secretary of State Webster (US) and Lord Ashburton (UK) • The British were trying to prevent future attacks from the Canadian rebels who were using this boat - their aim was to establish a Canadian republic and become independent from England, like the US had done • The Caroline test: necessity + proportionality • US Sec of State Webster said that the UK must be able to show that the need to use force was “instant, overwhelming, leaving no choice of means and no moment for deliberation” • In other words, if a State can satisfy this criteria then (under customary international law) perhaps they are entitled to use force • Click herehttp://en.wikipedia.org/wiki/Caroline_test to read more

8. So, before the Charter it was ok to use force in anticipation of an attack? • Yes, most scholars agree that before the UN Charter came along, states had the right under customary international law to use force before an actual attack had occurred • Then the question is: what happened to that right after 1945 when the UN Charter was enacted? Did that right continue or did it disappear? How can we reconcile a right to anticipatory self-defence when the words “if an armed attack occurs” are in Article 51? • This is mainly what scholars argue about in this area • What do you think? • By using the words “nothing in the charter impairs the inherent right of self-defence….”, did the framers of the Charter want to preserve something that already existed??

9. “The nature of conflict has changed” argument • Some scholars argue that conflict is different these days • The UN Charter is from 1945 – when states fought other states • These days, conflict is different: • States can’t wait for the attack - existential threats exist (eg nuclear weapons threaten the existence of a state) • Terrorists and other non-state actors can strike quickly, without warning, without the chance to try to settle differences • The argument here goes like this: conflict has changed so the UN Charter should be interpreted to take that change into account. Therefore, anticipatory self-defence should be allowed even if the literal wording of Article 51 doesn’t allow for it

10. The ICJ – what has it said? • The ICJ hasn’t made a clear statement on whether anticipatory self-defence is permitted under international law • In the Nicaragua case, the ICJ didn’t have to make a decision on this issue • The ICJ did say that “self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law” - but no specific ruling on anticipatory self-defence • However, Judge Schwebel, in a dissenting opinion, expressed support for it – he said he wouldn’t want Article 51 interpreted as meaning “if, and only if, an armed attack occurs” • In the Legality of Nuclear Weapons case again the ICJ did not have to make a ruling on this questions • So far, the ICJ has never made a clear statement on whether anticipatory self-defence is permitted

11. What about state practice? • States have generally rejected anticipatory self-defence. • The clearest example of states rejecting an act of anticipatory self-defence was the1981 Israeli attack on Iraq’s nuclear reactor (see next slide…) • After that attack, all 15 states in the Security Council condemned Israel for using force • Let’s look at this example of anticipatory self-defence

12. Israel’s attack on Iraq’s nuclear reactor in 1981 (it was called Operation Opera) On 7 June 1981, the Israeli Air Force attacked an Iraqi nuclear reactor called “Osirak” or Tammuz-I, which was still under construction Link to video (58sec) http://www.youtube.com/watch?v=dH3u79h5G7A&list=PLC3F3444AAEF2706C

13. Israel’s attack on Iraq’s nuclear reactor in 1981 • Israel reported its actions to the UN Security Council after the attack. • Israel relied solely on anticipatory self-defence – there had been no attack on Israel from Iraq • The Israeli representative to the UN claimed that Art 51 allowed states to use force in anticipatory self-defence • All members of the Security Council rejected this interpretation of Article 51, including the US • UNSC Resolution 487 (1981): strongly condemned Israel’s military attack which was in clear violation of the Charter • This resolution is available http://unispal.un.org/unispal.nsf/d744b47860e5c97e85256c40005d01d6/6c57312cc8bd93ca852560df00653995: • Please read it • This incident showed that most member states rejected the idea that a state can use force BEFORE an actual armed attack has occurred

14. Israel’s attack on Iraq’s nuclear reactor in 1981 This image shows the Osirak reactor after Israel’s attack Link to a video about the attack: http://www.youtube.com/watch?v=g3Ht7B1UzbM&feature=em-subs_digest-vrecs (44 mins, The History Channel)

15. Recent developments • More recently, there seems to have been a change in the position of some states • For example, the US: it condemned the Israeli attack on Iraq in 1981….but look at its understanding of ‘self-defence’ in the Bush Administration’s 2002 National Security Strategy: “While the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary, to exercise our right of self-defence by acting pre-emptively against such terrorists to prevent them from doing harm against our people and our country…” • The so-called “Bush doctrine” – named after then US President George E. Bush says that states can use force before an attack occurs, and even before an attack is imminent

16. Aside from the US… • In 2002, Australia expressed its support for the Bush doctrine, stating that there should be a new doctrine of pre-emptive action to avert a threat • But the UK disagreed – the UK Attorney-General, Lord Goldsmith, said that international law does not permit a state to use force in pre-emptive self-defence unless the attack is imminent • NZ agreed with the UK • So, most states did not support expanding the right of self-defence • Most states agreed that Article 51 requires an armed attack to have occurred or to be imminent and there be no other way to stop it

17. Weapons of mass destruction • Are weapons of mass destruction a special type of threat which justifies using force BEFORE an actual armed attack has occurred? • In 2002, the US argued “yes”: The US said that the US must be able to stop “rogue states and terrorists BEFORE they are able to threaten or use weapons of mass destruction against the US, our allies and friends…we cannot let our enemies strike first…” • If WMD are an excuse for using force BEFORE and armed attack has happened, wouldn’t that mean that all states which have WMD are legitimate targets for pre-emptive strikes??

18. What’s the current position in international law? • It’s hard to say! • Scholars disagree, states disagree, the ICJ hasn’t made a clear statement • The prevailing (most popular) interpretation is that states do not have to wait until another state has attacked • They can use force if the attack is imminent (ie very close, about to happen, and there are no other ways to prevent the attack) • In the Report of the UN High Level Panel on Threats, Challenges and Change (A/59/565, 2004) the UN said that “a threatened state, according to long-established international law, can take military action as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate”

19. Conclusion • This is an evolving area of international law – it is not settled • Even if a state breaks the rule in Article 51, what will happen? Israel broke the law in 1981, they were told to pay compensation, they never did. • Of course, a state can always seek Security Council approval for using pre-emptive force against another state (noting the problems with the veto powers of the P5 and the political nature of the SC)

20. Looking to the future… • What about Iran? • Some states are threatening a pre-emptive strike, eg, see Netanyahu’s speech to the UN General Assembly, 67th session, in September 2012, asking when it will be too late to strike Iran • Should Article 51 be changed? • What would be the consequences? • Would states act any differently to they do now?

21. Further reading • There is a lot of academic writing in this area • For example: Grieg, D. “Self-Defence and the Security Council: What Does Article 51 Require?” 40 [1991] International and Comparative Law Quarterly 366. Mulcahy, J. and Mahony, C., “Anticipatory Self-Defence: A Discussion of the International Law” 2 [2006] Hanse Law Review 231