Pre-Emptive Self-Defence

When does an armed attack occur?

Michael Sandin

Juridiska institutionen Examensarbete 30 hp. Ämnesinriktning: International law Vårterminen 2021 Grupphandledare: Jarna Petman Engelsk titel:

Abstract

The Charter of the United Nations1 (UN Charter) was signed in 1945 following two world wars with the objective of outlawing interstate force completely and maintain international peace and security. The challenges of 1945 are not, however, the same as those of today. This leaves us with a legal framework on the use of force not fully compatible with modern day threats. The right to self-defence in international law is stipulated in article 51 of the UN Charter. A literal reading of the article does not grant states the right to act pre-emptively, that is, acting in self-defence against an attack that has not yet fully materialized. The seemingly restrictive regulation has not, though, refrained states from acting pre-emptively when such action has been deemed necessary. From the signing of the UN Charter, until today, there are several cases of state practice where pre-emptive self-defence has been used, and where the defending state has argued legal practice in accordance with Article 51 of the UN Charter. The reactions from the international community have varied from case to case, and the debate regarding the scope of self-defence has been going on since the signing of the Charter. It did, however, gain new attention when the United States (US) in its 2002 National Security Strategy (NSS) for the first time made the doctrine of pre-emptive self-defence part of a state’s official policy. The debate regarding the legality of the doctrine has continued until the present day. In this thesis, a case study has examined whether the doctrine of pre-emptive self-defence has reached the status of customary international law. There are several instances where pre-emptive self-defence has been used in state practice, but the uses are not consistent or general enough, and the legal justification has not been sufficiently uniform, thus falling short of fulfilling the requirements of general practice and opinio juris required to create a new legal norm under customary international law. The response from the international community to the different cases strengthens this conclusion. There is, however, no question states will continue to push the boundaries should the applicability of present law continue to supply insufficient means of self-defence. The risk with having an outdated law, which states perceive as ineffective in relation to the threats of today, is an erosion of the trust in the UN Charter and a continued bypass of the UN Security Council (UNSC).

1 Charter of the United Nations, 24 October 1945, 1 U.N.T.S. XVI

Abbreviations

AUMF Authorization for Use of Military Force IAEA International Atomic Energy Agency ICBM Intercontinental Ballistic Missiles ICJ International Court of Justice ICJ Statute Statute of the International Court of Justice IGO Inter-Governmental Organization IRGC The Iranian Military of the Quds Force of the Islamic Revolutionary Guard Corps JCPOA The Joint Comprehensive Plan of Action NATO North Atlantic Treaty Organization NPT Treaty on the Non-Proliferation of Nuclear Weapons NSS National Security Strategy OAS Organization of American States UAR The United Arab Republic UK The United Kingdom UN United Nations UNEF United Nations’ Emergency Force UNGA United Nations General Assembly UNMOVIC The United Nations Monitoring, Verification and Inspection Commission UNSC United Nations Security Council US The United States of America VCLT The Vienna Convention on the Law of Treaties of 1969 WMD Weapons of Mass Destruction WWII Second World War

Contents

Abstract ...... 3

Abbreviations ...... 5 1 Introduction ...... 9 1.1 Background ...... 9 1.2 Purpose and Research Question ...... 10 1.3 Method and Material ...... 10 1.4 Definitions and Delimitation...... 12 1.5 Outline ...... 12 2 The Law ...... 14 2.1 The UN Charter ...... 14 2.1.1 The prohibition of the use of force ...... 14 2.1.2 The UN Security Council ...... 15 2.2 Article 51 ...... 16 2.2.1 Inherent right ...... 16 2.2.2 Armed Attack ...... 17 2.3 Customary International Law ...... 17 2.3.1 The Caroline Case ...... 18 2.3.2 Proportionality and Necessity...... 18 3 Pre-Emptive Self-Defence ...... 20 3.1 Pre 9/11 ...... 20 3.2 The Bush Doctrine ...... 21 3.2.1 Theoretical construction ...... 21 3.2.2 Legal justification...... 22 3.2.3 Interpretation of imminence ...... 23 3.2.4 Acceptebility of the doctrine ...... 24 3.3 Targeted Killing ...... 26 3.4 The Unwilling or Unable Doctrine ...... 27 3.5 Summary ...... 28 4 Interpretation ...... 30 4.1 The UN Charter ...... 30 4.2 Anticipatory Self-Defence in Customary Law ...... 31 4.3 Imminence ...... 32 4.3.1 Windows of oppertunity ...... 34 4.4 Weapons of Mass Destruction ...... 34 4.5 Armed Attack ...... 36 4.5.1 Pre 9/11 ...... 36 4.5.2 After 9/11 ...... 39 4.6 Self-Defence Against Non-State Actors ...... 41 4.7 Summary ...... 41

5 State Practice ...... 43 5.1 The Cuban Missile Crisis ...... 43 5.2 The Six-Day War ...... 44 5.3 Attack on iraq’s Nuclear Reactor ...... 45 5.4 Operation Enduring Freedom ...... 47 5.5 Operation Iraqi Freedom ...... 48 5.6 Israeli Airstrike on Syria’s Al-Kibar Facility ...... 49 5.7 The Killing of Qasem Soleimani ...... 50 5.8 Summary ...... 52 6 Conclusion ...... 55

References ...... 61

1 Introduction

1.1 Background Since the signing of the UN Charter in 1945 the way of which war and conflict are fought, and the adversaries faced, have changed. WMD, especially nuclear weapons, could inflict harm to a small nation in ways from which it would never recover. Rapid technological advancements allow such weapons to be delivered fast and silent, effectively removing the ability for a satisfying protection once the attack is initiated or the button pressed. Also, the drafters of the UN Charter, who had interstate conflicts in mind, did not foresee the threat of non-state actors. Weak or collapsed states have provided a safe haven for the growth of terrorist organizations, effectively changing the dynamic of international conflict. A terrorist organization, unlike a state, does not necessarily have a territory, nor a civilian population, to protect. It does not care about international law. These threats of WMD, terrorism and “rogue states”2 with little regard to international law require a legal framework on self-defence that allow states to properly protect themselves. These developments of new and more lethal threats have resulted in a practice by states, dating back at least sixty years, where they continue to push the boundaries of when the use of force in self-defence is allowed. Article 2(4) of the UN Charter prohibits the use of force. There are two exceptions to this prohibition: self-defence authorized by the UNSC as stipulated in Chapter VII of the UN Charter, and self-defence according to Article 51. As the International Court of Justice (ICJ) has stated in the Nicaragua Case, norms of customary international law can exist parallel to those of the UN Charter, and grant the same obligations and rights.3 By the practice of states, acting pre- emptively against threats posed by both other states and non-state actors as if the action would be within the legal scope of Article 51 of the UN Charter, a relevant question to examine is if such actions have created a new legal norm in customary international law, allowing pre-emptive self-defence as a legitimate act of self- defence.

2 A term explained as states that: brutalize their own people, disregard international law, wants/have acquired WMD with the intent to use or threat to use, sponsor terrorism, reject basic human values in The United States National Security Strategy of September 2002, p. 14, URL: https://2009-2017.state.gov/documents/organization/63562.pdf (last visited 21 May 2021) 3 Nicaragua Case (Merits) Nicaragua v United States (1986) ICJ Rep 14, para. 175-6

1.2 Purpose and Research Question The purpose of this thesis is to highlight the development of use of force in self- defence in international law as justified by the doctrine of pre-emptive self- defence. According to this doctrine, legal self-defence can be used to halt a tangible course of action that the victim state perceive will shortly evolve into an armed attack against it. The victim state has good reasons to believe such an attack is likely, and, if it takes place, will result in significant harm.4 Such action was, for example, taken by Israel in 1981 when they executed an air-strike on a not yet operational nuclear reactor inside Iraq. Israel claimed that the action was in self-defence and that the self-defence was necessary to prevent a future WMD attack.5 Following the terrorist attacks of September 11, 2001 (9/11), the US stated it would use force in self-defence pre-emptively against threats by its adversaries should that be necessary to maintain its national security6. This positioning by the US reignited the debate regarding the doctrine’s legality in international law. This thesis will examine whether the doctrine of pre-emptive self-defence has become a part of international law, and thus if it is a legitimate way of using force in self-defence. In order to reach a conclusion, the following question will be answered:

- Has the doctrine of pre-emptive self-defence reached the status of customary international law?

1.3 Method and Material The research question will be answered by examining the content of the doctrine of pre-emptive self-defence and cases of state practice relevant to the topic. In order to establish the legality of pre-emptive self-defence in international law, a variety of different legal sources and other relevant material will be examined. The study employs a traditional legal dogmatic- and a legal positivist methodology7. The traditional legal dogmatic methodology requires the sources used to be authoritative and gives guidance when deciding which ones set precedent if a dispute occurs. Since this thesis deal with international law, a view of what international law actually consists of is required in order to apply the legal dogmatic method. Legal positivism is chosen since it is the dominating legal theory, and its proposition of international law as a normative system represent a description of the legal order generally considered authoritative. A legal

4 Deeks, Ashley S, Ch. 29 Taming the Doctrine of Pre-Emption, in Marc Weller (ed) Part III The Prohibition of the Use of Force, Self-Defence, and Other Concepts, The Ox-ford Handbook of the Use of Force in International Law, 2015, pp. 662-63 5 Un Doc. S/14510 (Letter from the Permanent Representative of Israel to the Security Council, 8 June 1981) 6 The United States National Security Strategy of September 2002, p. 15 7 Nääv, M, Zamboni, M, Juridisk metodlära, Studentlitteratur, Lund, 2018, pp. 21, 47

positivist perspective on the law also harmonises well with the purpose of this theses since the aim is to determine de lege lata.8 International law, as described by legal positivists, is the body of rules that regulate the relations between and conduct of states. The legal positivist theory in general (all though there are many sub-categories) focuses on what the law is in a given time and place and strives to reach a conclusion on a formal rather than ethical or moral criteria of identification. The theory acknowledges consent is required for international law to exist. It could be said that international law consists of a common consent among an international community that a body of rules is required to regulate the conduct of members within that community. 9 The sources used to establish the legality of pre-emptive self-defence in international law are the ones listed in Article 38 of the Statute of the International Court of Justice10 (ICJ Statute). Article 38 is not a formal listing of the sources of international law. It is used by the ICJ to resolve international disputes and establish de lege lata. It is however commonly viewed as a list of international law sources.11 Article 38(1)(a) of the ICJ Statute contains international conventions such as bilateral or multilateral treaties and article 38(1)(b) contains customary international law. These norms represent primary sources of international law. Article (1)(d) lists judicial decisions and the teachings of the most highly qualified publicists. This could be described as secondary sources of international law and will be used as guidance when determining primary sources of international law.12 Customary international law, as listed in Article 38(1)(b), stems from custom. In order for custom to become legally binding customary international law two elements must be fulfilled. The objective element, usus, is a consistent practice by states. The subjective element, opinio juris, requires the state to believe the practice reflect a legal obligation. Both these elements together make the emerging of a new legally binding customary norm possible.13 The UN is an inter-governmental organization (IGO). The doctrine of the organization stems from the will and opinions of its members. Resolutions from UNSC and the United Nations General Assembly (UNGA) could therefore be seen as opinio juris in relevant cases. While resolutions from the UNGA are non- binding, they can, and sometimes do, contribute to the process of new treaties or customary norms. Resolutions from the UNSC when acting under Chapter VII of the UN Charter are binding on all member states.14 Some non-traditional sources will also be used in this thesis such as official state documents, official statements, and news articles from prominent media

8 Amnéus, D, Responsibility to Protect By Military Means – Emerging Norms on Humanitarian Intervention?, Department of Law, Stockholm University, Stockholm, 2008, pp. 25-6 9 Ibid, p. 27; Jennings, R, Watts, A, Oppenheim’s International Law, 9th edition, Vol. 1, Oxford: Oxford University Press, 2008, p. 4 10 Statute of International Court of Justice, United Nations, 18 April 1946. 11 Bring, O, Mahmoudi, S, Wrange, P, Sverige och Folkrätten, 5th ed., Stockholm: Nordstedts Juridik, 2014, p. 27 12 Ibid, pp. 27-33 13 Ibid, p. 29 14 Ibid, pp. 21, 32

outlets. The primary reason for this is to show possible opinio juris, and to be able to examine the most recent events.

1.4 Definitions and Delimitation There are mainly three different terms states and scholars use when discussing the use of force in advance of an armed attack: anticipatory self-defence, pre- emptive self-defence and preventive self-defence. Even though these are the most commonly used terms, the meaning put into the terms vary between commentators. In this paper, the definition of pre-emptive self-defence places the doctrine in-between anticipatory self-defence and preventive self-defence, according to the following definitions: Anticipatory self-defence: The use of force in self-defence used to halt an imminent armed attack by a state or a non-state actor. This definition stems from the Caroline Case and lets a state respond before an attack is completed, but only when the need to respond is ‘instant, overwhelming, and leaves no choice of means, and no moment for deliberation’.15 Pre-emptive self-defence: “The use of force in self-defence to halt a particular tangible course of action that the victim state perceives will shortly evolve into an armed attack against it. The attack appears more distant in time than an attack forestalled by anticipatory self-defence, but the potential victim state has good reason to believe the attack is likely, is near at hand, and, if it takes place, will result in significant harm”.16 Preventive self-defence: The use of force in self-defence to stop a future threat of an attack that has not yet taken place and without the knowledge of when or where the attack may emerge.17 Cyber attacks as possible armed attacks that would justify the use of force in self-defence in international law have been left outside the scope of this examination, since a whole thesis could be written solely about this topic.

1.5 Outline The paper is divided into six chapters. Following the introduction, the second chapter will give a brief overview of the generally agreed upon principles of the law on self-defence in international law, including how customary international law is established. This is required to give the reader basic knowledge in preparation for following chapters. The third chapter examines the doctrine of pre-emptive self-defence with special focus on the Bush Doctrine. Chapter four broadens the examinations scope and explores different writers and states interpretations of key elements regarding the doctrine. Chapter five contain state

15 Deeks, 2015, p. 662 16 Ibid, pp. 662-63 17 Ibid, p. 663

practice in a number of cases where use of force in self-defence prior to an actual armed attack has been used. Lastly, there will be a conclusion.

2 The Law

2.1 The UN Charter The Charter of the United Nations was drafted in San Francisco 1945, after two World Wars, with the ambition to outlaw force completely. The charter was signed by representatives from fifty nations on 26 June 1945. Today, the UN consists of 193 member states.18 The Vienna Convention on the Law of Treaties of 196919 (VCLT) stipulates how the UN Charter should be interpreted. Article 31 (1) and (2) states that a treaty should be interpreted according to its ordinary meaning and context with regards to its object and purpose. Article 32 states that preparatory work and the circumstances of its conclusion may be regarded in the interpretation of a treaty should that be necessary to interpret a treaty according to Article 31. The ICJ has stated though that consideration of developments in international law sometimes might be needed.20

2.1.1 The prohibition of the use of force The central rule on the use of force regulating the present-day jus ad bellum is found in article 2(4) of the UN Charter, which proclaims: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” 21 The use or threat of force, stipulated by the article, is only abolished in the “international relations” of Member States and does not cover Intra-State conflicts. The term “force”, even though not preceded by the adjective “armed”,

18 Information from UN website, URL: https://www.un.org/en/about-us (last visited 21 May 2021) 19 Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, Volume 1155. 20 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), (2009), Judgment, ICJ Rep. 213, p. 33 21 Dinstein, Y, War, Aggression and Self-Defence, 4th ed., Cambridge: Cambridge University Press, 2005 p. 85.

does not include psychological or economic pressure.22 It should be noted that there has been, and still to a limited extent is, a debate regarding the scope of “force”, where developing countries and formerly the Eastern bloc countries claimed that the prohibition of the use of force also comprised other forms of force such as political and, in particular, economic coercion.23 Regarding the threat of force in Article 2(4) the ICJ in the 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons stated that: “The notions of ‘threat’ and ‘use’ of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal.”24 Generally, the use or threat of force against the territorial integrity or political independence by one state against another is prohibited, with two exceptions: legal use of force authorized by the UNSC and legal use of force in self-defence. All other uses of force are illegal.25

2.1.2 The UN Security Council Only the UNSC can authorize the use of force against a state. According to Article 39 of the UN Charter, the UNSC are responsible for maintaining or restoring international peace and security. Should the UNSC find the existence of any threat to the peace, breach of the peace, or acts of aggression, it shall give recommendations, or decide what measures shall be taken in accordance with Article 41 and 42. The measures stipulated in Article 41 are solutions not involving armed force that the UNSC can call upon the Members of the UN to apply in order to give effect to its decisions. These measures may include interruptions of economic relations, disconnection of other means of communication, and the severance of diplomatic relations. Should measures taken in accordance with Article 41 prove to be inadequate, or would such measures be inadequate from the start in order to maintain or restore international peace, Article 42 grants the UNSC military action if necessary. In addition, it also grants Members of the United Nations military action, such as demonstrations, blockade, and other operations, if the UNSC gives the member mandate. The second exception to the prohibition of the use of armed force, legal force in self-defence, is found in Article 51.

22 Dinstein, 2005, p. 86. 23 Dörr, O & Randelzhofer, A, Purposes and Principles, Article 2(4) in Simma, B (Ed), The Charter of the United Nations: a commentary. Vol. 1, 3rd ed., Oxford Commentaries on International Law, 2012 pp. 208–9. 24 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Rep 1996, p. 226, para 47. 25 Yoo, J, Using Force, The University of Chicago Law Review, Vol. 71, No. 3, 2004, 729, p. 738

2.2 Article 51 Article 51 of the UN Charter regulates the right to legal self-defence and stipulates that: “Nothing in the present charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the UNSC has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the UNSC and shall not in any way affect the authority and responsibility of the UNSC under the present charter to take at any time such actions as it deems necessary in order to maintain or restore international peace and security.” The provision needs to be read in conjunction with article 2(4) of the charter since it is an exception to the prohibition. Therefore, only one of two opposing states can use legal self-defence, which must be a response to unlawful use of force, an armed attack.26 The law on self-defence in international law is the subject of the most fundamental disagreement between states and between writers. The development of the ‘Bush doctrine’ of pre-emptive self-defence reignited the debate after the 9/11 attacks and brought a fundamental reappraisal of the law on the use of force against terrorism.27 Even though there are fundamental disagreements regarding the scope of the right to self-defence, almost all states and writers agree that there are more to self-defence than what is stipulated in the UN Charter. Proportionality and necessity, deriving from customary law, are aspects of the law on self-defence still relevant today but not included in article 51.28

2.2.1 Inherent right The first sentence of article 51 provides: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs…”. The sentence creates several legal effects. One effect is that the article recognizes the inherent right of self-defence and, in this respect, can be contrasted from the General Treaty since the latter did not expressly recognize the inherent right or expressly exempt it from the prohibition of war. This is because self-defence was considered a manifestation of state sovereignty, inviolable and undefinable by any treaty. Another legal effect is the protection of this inherent right against ‘impairment’ by the provisions and use of the Charter. ‘Impairment’ could in this case refer to two different respects: the respect of the

26 Dinstein, 2005, p. 177. 27 Gray, C, International Law and the Use of Force, 4th ed., Oxford Public International law, 2018 p. 120. 28 Shaw, M N, International Law, 5th ed., Cambridge: Cambridge University Press, 2003 p. 91

existence of the right in international law per se, in respect of the right’s legal scope, or both.29 This explanation of ”inherent right” was also put forth by the ICJ in the Nicaragua Case which stated that: “On one essential point, this treaty itself refers to pre-existing customary international law; this reference to customary law is contained in the actual text of Article 51, which mentions the ‘inherent right’ (in the French text the "droit naturel") of individual or collective self-defence, which ‘nothing in the present Charter shall impair’ and which applies in the event of an armed attack. The Court therefore finds that Article 51 of the Charter is only meaningful on the basis that there is a ‘natural’ or ‘inherent’ right of self-defence, and it is hard to see how this can be other than of a customary nature, even if its present content has been confirmed and influenced by the Charter.”.30

2.2.2 Armed Attack There is unity among states regarding the lawfulness of self-defence if an armed attack occurs. The ongoing controversies rather centres around what actually constitutes an armed attack. The textbook case of an armed attack is one where a military division of one state enters the territory of another state. Another accepted example of an armed attack is one where a state attacks forces of another state outside its territory. It gets tricky, however, when trying to define the concept and identify the exact start of an armed attack. Examples showcasing this difficulty is intercontinental ballistic missiles (ICBM) and naval mines.31 ”Aggression” is a term used several times in the Charter and is defined by the UNGA in the Resolution on the Definition of Aggression.32 An armed attack is a sort of aggression, but the threat of force is not included in the definition. 33 Further, no explanation or definition of ”armed attack” can be found in the Charter, nor in the definition of Aggression.

2.3 Customary International Law The disagreement regarding the scope of self-defence is commonly based on different interpretations of Article 51. The reference in the article to ‘inherent right’, as mentioned in chapter 2.2.1, is often seen as a way of preserving the earlier customary international laws right to self-defence since the Charter does not take away pre-existing rights without express provision. Others would argue that the wording of Article 51 is clear and that no right to self-defence arises except when an armed attack occurs.34 Even though states and writers disagree

29 Murray, C A, The Inherent Right of Self-Defence in International Law, Vol. 19, IUSGENT, 2013, p. 84 30 Nicaragua Case (Merits) Nicaragua v United States (1986) ICJ Rep 14, para. 175-6 31 Gray, 2018, p. 134-5. 32 General Assembly Resolution 3314 of 14 December 1974 33 Dinstein, 2005, p. 184. 34 Gray, 2018, p. 124.

regarding the interpretation of Article 51, almost all agree that there is more to self-defence in international law than what is stipulated in the Charter. The view that a customary international law right on self-defence exists alongside Article 51 was stated by the ICJ in the Nicaragua case, as mentioned above.35 This does not mean both rules need to be exact in content. The law establishing self-defence is found in the UN Charter while the characteristics of that law can be found in customary law.36 In order to assess whether a norm can be considered part of customary international law it is needed to establish both a “general practice”, and the belief that such practice is the correct behaviour and legally binding, opinio juris. The approach to establish customary international law is generally accepted by states and adopted by the ICJ, as well as recognized in the literature.37 If used to identify Customary International law, there needs to be a “general practice” that is “accepted as law”.38

2.3.1 The Caroline Case The traditional definition of the scope of self-defence in customary international law stems from the Caroline case. The case centres around an incident from 1837 where British subjects seized and destroyed a vessel, called Caroline, in an American port. The seize was a response to raids performed by American Nationals and insurgents in Canadian territory, and the Caroline was a vessel used to transport supplies from the American side to a Navy Island, a British possession on the river boundary between Canada and the United States where the insurgents planned their attacks towards Canada. Following the seize and destruction of the Caroline, the American Secretary of State laid down the essentials of self-defence in international customary law. There had to exist “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation”. Such conditions where not only required in order for self-defence to become legitimate, but the action taken in pursuance of it could not be excessive ”since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it”, i.e proportionate. The principles laid down by the Secretary of State was accepted by the British government at the time and are considered as part of customary international law.39

2.3.2 Proportionality and Necessity Almost all states agree that self-defence must be necessary and proportionate, two requirements traced back to the Caroline case. The requirements have played

35 I.C.J Rep 1986, p. 14, para 176. 36 Ibid, para 175, 181, 194 37 International Law Comission, Second Report on Identification of Customary International Law, UN Doc. A/CN.4/672, para. 21 38 Ibid, para 22; ICJ Statute Article 38 (1)(b) 39 Shaw, 2003, pp. 1024-5.

a vital role in state justification of the use of force in self-defence and in international response. The Nicaragua Case40, the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons41, The Oil Platforms Case42 and Armed Activities on the Territory of Congo43 are all examples of when necessity and proportionality have been included in the deliberation regarding self-defence and have given more validity to the claim that proportionality and necessity are limits on all self-defence, both collective and individual.44

40 I.C.J. Rep 1986, p. 14, para 194. 41 I.C.J. Rep 1996, p. 226, para 41. 42 Oil Platforms (judgment) Islamic Republic of Iran v. United States of America, I.C.J. Reports 2003, p. 161, para 43. 43 ICJ Rep 2005, p. 168, para 147. 44 Gray, 2018, p. 158-9.

3 Pre-Emptive Self-Defence

3.1 Pre 9/11 Following the inception of the UN Charter in 1945 there has been, and still is up to this day, a doctrinal division regarding the legality of anticipatory self-defence as part of customary international law. If this right still exists, it is by nature of customary law influenced by state practice since 1945. Several authors argue that state practice since 1945 confirms the existence of anticipatory self-defence. States in these cases does not always themselves argue anticipatory self-defence as a legal basis for their actions. More often states argue they were the victim of an actual armed attack which activated the right of self-defence according to article 51. This argumentation, even though the action itself seems like anticipatory self-defence, was probably used due to the controversial nature of anticipatory action.45 In chapter 5, cases of state practice where states have used either anticipatory- or pre-emptive self-defence in their relations to other states or non-state actors are listed, and contain cases from as long as sixty years ago. One case in which a state used anticipatory self-defence as legal basis for their action was the Osirak bombing by Israel in 1981 (see chapter 5.3). The Israeli action was condemned by both the UNSC and the UNGA in two separate resolutions. 46 The resolutions did however never reject the doctrine of anticipatory self-defence per se. Some states, following the Israeli action, such as Egypt and Mexico, condemned the notion of anticipatory action. Others, including France and Italy, condemned the Israeli action since the case lacked evidence of an imminent attack by Iraq. The US supported the notion of anticipatory self-defence but rejected the Israeli claim due to a lack of exhaustion of peaceful and diplomatic means to solving the conflict.47 The ICJ has never ruled on the legality of anticipatory self-defence. In the Nicaragua Case the Court purposely declined to give any statement regarding “the issue of the lawfulness of a response to the imminent threat of an armed

45 Garwood-Gowers, Andrew. Israel's Airstrike on Syria's Al-Kibar Facility: A Test Case for the Doctrine of Pre-Emptive Self-Defence, Journal of Conflict and Security Law, volume 16, number 2, 2011, p. 263 46 Security Council Resolution 487 of June 19 1981; General Assembly Resolution 36/27 of 13 November 1981. 47 Garwood-Growers, 2011, p. 274

attack” since the Court found that facts of the case did not require it.48 In the Nuclear Weapons case the Court took a similar approach, avoiding the topic altogether.49 The authors doctrinal division together with the sometime ambiguous state practice involving anticipatory self-defence and the reluctance from the ICJ in giving a definite statement of its legality, made the legal status of anticipatory self- defence somewhat unclear prior to the Bush doctrine in 2002, see chapter 3.4.

3.2 The Bush Doctrine

3.2.1 Theoretical construction When the US and others launched Operation Enduring Freedom on 7 October 2001 (see chapter 5.4) the US Permanent Representative to the UN wrote to the president of the UNSC stating that the action was in self-defence with legal justification found in article 51 of the UN Charter.50 In the letter he used the word “ongoing” threat referencing a continued threat to the US by Al-Qaeda and the Taliban.51 The letter however went further than just claiming a right to self- defence against Afghanistan since it also contained the phrase “[w]e may find that our self-defence requires further actions with respect to other organisations and other states”.52 Since then, it has become clear the reason for this wording was an ambition to secure advanced support for an extension of the right to self- defence to encompass the sphere of unilateral pre-emption.53 President Bush continued the work towards an expansion of the self-defence doctrine in his State of the Union address in 2002. In his speech, President Bush concluded that it was in the intersection between terrorism, rouge states and WMD the biggest threat to America was found, and that there was an “axis of evil” consisting of Iran, Iraq and North Korea.54 The President continued building on the new doctrine when he, in the beginning of June 2002, claimed a right to use pre-emptive force on states deemed a threat but without the need for an actual attack on the US to have taken place.55 President Bush stated that the

48 I.C.J. 1986, Rep 14, para 194. 49 I.C.J. Rep 1996, p. 226 50 Un Doc. S/2001/946 (letter from the Permanent Representative of the United States to the Security Council, 7 October 2001) 51 Ibid. 52 Ibid. 53 Henderson, C, The Bush Doctrine: From Theory to Practice, Vol. 9, JCSL, 2004, p. 6 54 State of the Union Address, 29 January 2002, URL: https://georgewbush- whitehouse.archives.gov/news/releases/2002/01/20020129-11.html (last visited 21 May 2021) 55 Remarks by the President at 2002 Graduation Exercise of the United States Military Academy at West Point, 1 June 2002, URL: https://georgewbush- whitehouse.archives.gov/news/releases/2002/06/20020601-3.html (last visited May 21 2021)

US needed to “confront the worst threats before they emerge”56 and that they had to be “ready for pre-emptive action when necessary”.57 All the previous build-ups took formal shape in the National Security Strategy (NSS), released in September 2002.58 This document made clear the US would not make difference “between terrorists and those who knowingly harbour or provide aid to them”.59 It appears that the doctrines of deterrence and containment used during the Cold War had been replaced when facing threats of the twenty-first century such as international terrorism and WMD. In other words, since the threat now came from a combination of terrorist organizations without a nation or citizens to protect and unstable dictators with WMD, the corresponding strategy for self-defence had to change as well.60 And, following the NSS, there was no doubt that the US would exercise its “right of self-defence by acting pre-emptively against such terrorists”.61

3.2.2 Legal justification Some authors have argued that the prohibition of the “threat or use of force” in article 2(4) of the UN Charter has lost its validity62, but seeing how states almost always try to seek justification for their actions when using force, it is clear that the prohibition is still in effect. There are two exceptions to the prohibition of force by states in the UN Charter: either collective security action authorized by the UNSC under Chapter VII, or individual and collective self-defence under Article 51. Pre-emptive action could be authorized by the UNSC, while self- defence according to Article 51 is restricted to when an armed attack occurs.63 However, if a state acts in accordance with the strict principles of customary international law by fulfilling the requirements of necessity, proportionality and imminency, or as put forth in the Caroline Case: “necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation”64, self-defence action taken in anticipation of an armed attack will be legitimate.65 This legal reasoning is found in the NSS from 2002: “For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent

56 Ibid. 57 Ibid. 58 The National Security Strategy of the United States of America (NSS), September 2002 59 Ibid, p. 5 60 Henderson, 2004, p. 7 61 NSS, 2002, p. 6 62 See for example: T.M. Franck, Who Killed Article 2(4)?, American Journal of International Law, Volume 64, number 4, 1970, pp. 809, 835 63 Henderson, 2004, p. 7 64 Shaw, 2003, p. 1025. 65 Henderson, 2004, p. 7

threat—most often a visible mobilization of armies, navies, and air forces preparing to attack.”66 The NSS continued by stating: “We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction—weapons that can be easily concealed, delivered covertly, and used without warning.”67 What can be gathered from the NSS in regard to the Bush Administration’s view on the legitimacy of self-defence prior to an actual armed attack is that it hinges on the existence of an imminent threat. The administration does however set the goal of expanding the definition of such imminence in order to deal with new threats of international terrorism and WMD. By doing this, the US leaves the previously recognized boundaries of customary law on self-defence as described above for a new, potentially unlawful, security strategy of a wider pre- emptive nature. The question is whether the events of 11 September made such an expansion on the scope of imminence justified, and if so, what the reactions from the international community were, and if the community accepted the change as legitimate.68

3.2.3 Interpretation of imminence Traditionally, the main actors in international relations have been states, and therefore international law that regulates the recourse to force is focused on states and their dealings, with little to no consideration of terrorist groups. This is also true for WMD, which at the time of the creation of the law was not seen as a major problem. But, when considering that terrorism and WMD can strike states in ways that international law could not anticipate, especially after 9/11, it is easy to see how the development of the doctrine of pre-emptive self-defence started.69 President Bush expressed concerns regarding this by saying that “if we wait for threats to fully materialise, we will have waited too long”.70

Previously, when following the criteria of the Caroline Case, a state that was attacked by conventional means usually had enough time to prepare before the actual attack took place and survived, since the traditional way of attacking another state was by mobilisation of troops and other overt actions visible by the victim state.71 When faced with the threats of today such as secretly state- sponsored attacks by terrorists in possession of advanced technology and WMD, some writers argue that the requirements of the Caroline Case cannot rationally

66 NSS, 2002, p. 15 67 Ibid, p. 15 68 Henderson, 2004, p. 9 69 Ibid, p. 9 70 Remarks by the President at 2002 Graduation Exercise of the United States Military Academy at West Point, 1 June 2002. 71 Henderson, 2004, p. 9

apply as is, but requires modification in order to meet the new threats and give states a chance at survival.72 Some writers also argue that terrorists often target civilians rather than military installations with some degree of protection, as civilians and non-combatants are soft targets that most likely will be destroyed if attacked, making pre-emptive self-defence the only method of effectively stopping terrorist attacks from materializing.73 Basically the argument is that when an WMD- or terrorist attack is considered “imminent” by the traditional standard it may very well be too late for a state to mount an effective defence.74

If there was a terrorist group not yet responsible for any attacks, when could the requirement of “imminent” be considered fulfilled in regard to an attack from such a group?75 In the NSS, the thought of taking unilateral pre-emptive action is “compelling…even if uncertainty remains as to the time and place of the enemy’s attack”.76 By the wording in the NSS, it seems as if the Bush Administration is putting forth a rule which gives it the right to attack any terrorist group or state whenever a possible threat is located, regardless of whether such action has support from the international community. The general acceptance of such a doctrine among the international community is understandably low, at least in this raw form.77

3.2.4 Acceptebility of the doctrine The United Kingdom (UK), main ally to the US, did not expressly accept nor reject the Bush Doctrine. The UK Defence Secretary stated in December 2001: “We may need to coerce regimes and states which harbour or support international terrorism, with the threat and, ultimately the use of, military force in the event that diplomatic and other means fail”. 78 In February 2003, the UK Foreign Secretary, responding to a Foreign Affairs Committee report, stated that the Government is of the opinion that a response in self-defence against an imminent threat, both from other states and terrorist groups, are legitimate actions, and that this view did not need configuration following the publication of the US’s NSS in 2002. By not specifying what exactly lies within the word “imminent”, some argue that the Foreign Secretary thereby purposely remains vague thus not setting a fixed perimeter on the use of anticipatory action in advance of an armed attack.79 The UK Attorney-General, when giving advice

72 Sofaer, A, D, On the Necessity of Pre-Emption, European Journal of International Law, Volume 14, Number 2, 2003, p. 214 73 Mullerson, R, Jus Ad Bellum: Plus Ca Change (Le Monde) Plus C’est La Meme Chose (Le Droit), Journal of Conflict and Security Law, Volume 7, Number 2, 2002, p. 180 74 Henderson, 2004, p. 9 75 Ibid, pp. 9-10 76 NSS, 2002, p. 15 77 Henderson, 2004, p. 10 78 Norton-Taylor, R, Prepare to fight terror worldwide, says Hoon, The Guardian, 6 december 2001, URL: https://www.theguardian.com/uk/2001/dec/06/politics.september11 (last visited 21 May 2021) 79 Henderson, 2004, p. 10

regarding the legality of the use of force in relation to Iraq in 2003, answered: “I am aware that the USA has been arguing for recognition of a broad doctrine of a right to use force to pre-empt danger in the future. If this means more than a right to respond proportionately to an imminent attack (and I understand that the doctrine is intended to carry that connotation) this is not a doctrine which in my opinion exists or is recognized in international law”.80 Australia on the other hand gave open support for the Bush Doctrine when it was published, and the Australian prime minister asserted a right to make unilateral pre-emptive attacks.81 This might in part be due to the terrorist attack against a Bali nightclub in October 2002 that killed and injured several Australian citizens.82 When examining the international reactions to Operation Iraqi Freedom (see chapter 5.5), it is clear most states were not willing to accept pre-emptive self- defence as a legal basis for, at least, that action.83 The High-level Panel Report and the Secretary-General’s Report In Larger Freedom both addressed the question whether the right to self-defence should be expanded in order to meet new threats. The two reports understood the doctrine of pre-emptive self-defence as action against a non-imminent threat and rejected it. They did however, by some argued controversially, accept anticipatory self- defence when faced with an imminent threat as legal practice, but did not go all the way in accepting the Bush Doctrine of pre-emption. When a threat is not imminent, for example a state acquiring nuclear weapons-making capacity, but without the actual possession of nuclear weapons ready to launch, pre-emptive action cannot be considered legal. When dealing with such a potential future threat, action must the authorized by the UNSC, since unilateral pre-emptive action poses too big of a threat to global order.84 In 2006 the US published a new NSS continuing its commitment to the doctrine of pre-emption.85 The NSS stated that “[t]he place of preemption in our national security strategy remains the same”.86 One thing that had changed though was that the main adversary in the war on terror now consisted of islamic extremists.87 And, the previously mentioned axis of evil in 2002, consisting of Iran, Iraq and North Korea, had been replaced by Iran and Syria as the biggest

80 Attorney General's Advice on the Iraq War Iraq: Resolution 1441, The International and Comparative Law Quarterly, volume 54, number 3, 2005, p. 768 81 Frankland, N, Australia supports pre-emptive strikes, The Guardian, 2 December 2002, URL: https://www.theguardian.com/world/2002/dec/02/iraq.australia (last visited 21 May 2021); The Howard line on Pre-emption, The Sydney Morning Herald, 3 December 2002, URL: https://www.smh.com.au/opinion/the-howard-line-on-pre-emption-20021203-gdfwl3.html (last visited May 21 2021) 82 Myrie, C, Many Dead in Bali Blast, BBC, first reported 12 October 2002, URL: https://www.bbc.com/news/av/world-asia-pacific-14666715 83 Gray, 2018, p. 250 84 High-level Panel Report, UN doc A/59/565, 2 December 2004, para 188-91; UN General Assembly, In Lager Freedom, UN doc A/59/2005, 21 March 2005, para 124-25. 85 The National Security Strategy of the United States of America, March 2006, URL: https://georgewbush-whitehouse.archives.gov/nsc/nss/2006/ (last visited 21 May 2021) 86 Ibid, p. 23 87 Ibid, p. 9

threats deemed “sponsors of terror”.88 The 2006 NSS, like the previous version, did not specify exactly what requirements needed to be fulfilled before the right to pre-emption was activated, nor the scope of such action. It repeated the words of the 2002 strategy “under long-standing principles of self-defense we do not rule out the use of force before attacks occur, even if uncertainty remains as to the time and place of the enemy’s attack”89 with the addition of the words “[t]he reasons for our actions will be clear, the force measured, and the cause just”.90 The strategy did not contain any further discussion regarding the imminence requirement, international law or about the UN’s role in international peace and security.91 In 2010 President Obama presented a new NSS leaving the question of pre- emption open.92 From US practice on targeted killings and their legal argumentation for the intervention in Syria, it seemed as if the way forward now contained less lean on pre-emptive self-defence and more focus on the expansion of the meaning of “imminence”.93 (For further discussion on “imminence” see chapter 4.3).

3.3 Targeted Killing Leaving the rhetoric’s of the US being in a “global war on terror”, President Obama still claimed in 2008 the US was at war with Al-Qaida and all of its associates that continued to try and inflict harm on the US and its allies.94 This war against Al-Qaida is still justified domestically through the Authorization for Use of Military Force (AUMF)95 as self-defence following the 9/11 attacks, and covers military action both inside Afghanistan as well as targeted killings96 against those who are suspected of cooperating with Al-Qaeda outside of Afghanistan.97 The US gradually increased the number of drones used for targeted killings, both inside and outside of Afghanistan, as part of the war on Al-Qaida, and the targets varied from members of Al-Qaeda in Pakistan to AQAP in Yemen and

88 Ibid, pp. 9, 20 89 Ibid, p. 23 90 Ibid, p. 23 91 Gray, 2018, p. 251 92 National Security Strategy of the United States of America, May 2010, URL: https://obamawhitehouse.archives.gov/sites/default/files/rss_viewer/national_security_strategy .pdf (last visited 21 May 2021) 93 Gray, 2018, p. 252 94 NSS, 2010, 95 Authorization for Use of Military Force, PUBLIC LAW 107–40—SEPT. 18, 2001, URL: https://www.congress.gov/107/plaws/publ40/PLAW-107publ40.pdf (last visited 21 May 2021) 96 ”targeted killing” is a term generally used to describe a pre-meditated use of lethal force against an individual or individuals specifically identified in advance, see: UN Special Rapporteur Philip Alston, Study on Targeted Killing, UN doc A/HRC/14/24/Add.6, 28 May 2010. 97 Gray, 2018, pp. 233-4

AlShabaab in Somalia.98 The practice of targeted killings continued under President Trump.99 In order to justify the killings of non-state actors in third states that had not been a part of the attacks of 9/11, a new legal framework was put forth by members of the Obama administration in a series of speeches arguing that the US still was at war with Al-Qaeda, thus removing the need to justify each individual strike with the self-defence requirements of necessity and proportionality. The targeted killings are all a part of the same war that has been going on since 9/11, and they are justified due to the “continuing imminent threat” that Al-Qaeda and their allies pose to the US and its nationals, allies and interests.100 Or, as put forth by a US State Department Legal Advisor in a speech in 2016: “In the view of the United States, once a State has lawfully resorted to force in self-defense against a particular armed group following an actual or imminent armed attack by that group, it is not necessary as a matter of international law to reassess whether an armed attack is imminent prior to every subsequent action taken against that group, provided that hostilities have not ended.”101

3.4 The Unwilling or Unable Doctrine Another branch of the US legal framework on self-defence, following the expansion of the targeted killings-programme, was the development of the “unwilling or unable” doctrine. This doctrine grant victim states a right to self- defence against imminent attacks from non-state actors in states that are unwilling or unable to deal with the terrorists within their territory themselves. The doctrine was put forth when the legal framework for the targeted killings programme was presented by members of the Obama administration, but only briefly since the doctrine was not fully developed at the time. For example, in 2011 the National Security Advisor said: “We reserve the right to take unilateral action if or when other governments are unwilling or unable to take the necessary actions themselves.”102 In the previously mentioned speech by the US State

98 Heyns, Akande, Hill-Cawthorne, and Chengeta, The International Legal Framework Regulating the Use of Armed Drones, International & Comparative Law Quarterly, Vol. 65, No. 4, 2016, p. 791; Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations, 5 December 2016, pp. 3-7, URL: https://obamawhitehouse.archives.gov/sites/whitehouse.gov/files/documents/Legal_Policy_Re port.pdf (last visited 21 May 2021) 99 Gray, 2018, p. 234 100 Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations, p. 5 101 Speech by Brian Egan, US State Department Legal Adviser, 2016, URL: https://www.justsecurity.org/wp-content/uploads/2016/04/Egan-ASIL-speech.pdf (last visited 21 May 2021) 102 Speech by John Brennan, Harward Law School, 2011, URL: http://opiniojuris.org/2011/09/16/john-brennan-speech-on-obama-administration- antiterrorism-policies-and-practices/ (last visited 21 May 2021)

Department Legal Advisor from 2016 he continued by explaining that the US viewed the “unwilling or unable” doctrine as part of the necessity requirement of self-defence.103 The formal adaptation of this doctrine, originally designed to justify targeted killings in Pakistan, Yemen and Somalia, but later also used against ISIS in Syria, was formally adopted in the 2016 White House Report on Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations.104

3.5 Summary Anticipatory self-defence, the “light” version of pre-emptive self-defence which requires and armed attack to be “imminent”, is usually not used as a legal argument even though the action taken in reality would be considered anticipatory action. The ICJ has dodged the question regarding its legitimacy, and writers’ opinions are divided. The High-Level Panel Report and the Secretary- General’s report In Larger Freedom both accepted anticipatory self-defence when faced with an imminent threat as legal practice. This did not stop the US though from presenting a NSS in 2002 declaring a war on terrorism, with the outspoken goal of implementing a doctrine of pre-emptive self-defence. A doctrine which removes the “imminent” requirement in so forth that it is no longer a missile launched towards the territory of one state, or the mobilization of troops, that is required to activate the legal right to force in self-defence, but rather a tangible course of action that the victim state perceives will evolve into an armed attack further down the road. The argumentation for a need of such a doctrine is the emerge of new threats which did not exist at the time of the signing of the UN Charter. Rouge states with WMD-ambitions combined with terrorist organizations without any territory or population to protect makes such an argument understandable. The attacks on 9/11 made these threats a gruesome reality.

Following the 9/11 attacks the UNSC condemned the attacks in several resolutions, and the US was supported by an overwhelming number of states as it took military action against Al-Qaeda in Afghanistan. Prior to the invasion both the US and the international community had used diplomacy and urged the Taliban regime of Afghanistan to change its policy and hand over the Al-Qaeda members within its territory. And even though the invasion was conducted after the 9/11-attacks, Al-Qaeda had attacked the US several times prior with the outspoken aim of continuing such action in the future. UNSC resolutions, among them resolution 1368 passed the day after the attack, and resolution 1373 passed a few weeks later, recognizing the inherent right of individual and collective self- defence, arguably opened the door to self-defence against non-state actors, or at least gave supporters of such action a tool.

103 Speech by Brian Egan, US State Department Legal Adviser, 2016 104 Gray, 2018, p. 237

The US continued by invading Iraq in 2003. The support from the international community which the US had when invading Afghanistan in 2001 was now significantly decreased. It is reasonable to assume an attack of the scale displayed on 9/11 spread fear among states of being targeted themselves, maybe giving the US more room to manoeuvre than would otherwise have been the case. Technically the legal justification for the invasion of Iraq, as described in chapter 5.5, was a series of UNSC Resolutions, but in the letter to the UNSC the US, unlike the UK and Australia, included a right to self-defence.

Following the two wars, the US started shifting its focus from outright claims of a right to pre-emptive self-defence in favour of different interpretations of the “imminence” requirement in anticipatory self-defence as stipulated by the Caroline Case, but in theory to the same effect. Pre-emptive self-defence was not being accepted by the international community, and even the US closest Ally, the UK, did not recognize pre-emption as a valid legal justification. But, as will be shown further in chapter 4, both the US, its allies and a lot of writers have put in work reshaping the requirements of anticipatory self-defence in order to widen the doctrine, even though retracting somewhat from the use of the word “pre- emptive”.

4 Interpretation

4.1 The UN Charter Yoo compares The UN Charter and its regime on the use of force with domestic criminal law and argues they have a lot in common. The Charter prohibits violence from one state against another in the same way domestic criminal law prohibits violence by one individual against another. Within a country, the government has monopoly on legal uses of force in the same way the UN has that power internationally. Domestic criminal law recognizes that an individual sometimes needs to defend herself when the government is not able to provide adequate protection. In the same way, the UN Charter copies this self-defence mechanism in Article 51, referencing the “inherent” right of self-defence where the UN is not able to prevent illegal use of force. According to the UN Charter system, there are three different types of uses of force: legal use of force authorized by the UNSC; legal use of force in self-defence; and illegal use of force.105 Based on the rules stipulated by the UN Charter, Yoo points out some authors have drawn the conclusion that the use of force in self-defence by a nation is even more limited than that of an individual in domestic criminal law. These authors interpret a nation’s right to self-defence according to Article 51 as permitting self-defence only as a response to an actual “armed attack”, in some cases even arguing that the response in self-defence first requires a transborder attack to have taken place.106 In order for such interpretations to be valid, one must be under the assumption that the pre-existing right to reasonable anticipatory action in self- defence under international customary law was extinguished by the UN Charter. According to Yoo there is nothing that validates the assumption that a limitation of customary law was the intent of the drafters of the Charter. On the contrary, the right to self-defence is by many considered as one of the core rights of any

105 Yoo, 2004, p. 738. 106 Ibid, pp. 738-39, referring to Dinstein, 2005, pp. 177-8; Brownlie, I, International Law and the Use of Force by States, Oxford: Oxford University Press, 1963, pp. 275-80.

nation, immune to the regulation by treaties, and subject to only that nation’s judgement.107 Many authors and scholars, regardless of their position towards international law, agree that Article 51 recognizes, rather than regulates, states right to self- defence under international law, and that the wording of the article was not intended to create a new version of that same right.108 The interpretation of “inherent right” in Article 51 as a reference to customary international law is also, as mentioned in chapter 2.2.1, recognized by the ICJ in the Nicaragua Case.109

4.2 Anticipatory Self-Defence in Customary Law In customary international law, the right of any state to use anticipatory self- defence against an attack that has not yet occurred has constituted an important aspect of the “inherent right” of self-defence.110 The right stems from the Caroline incident in 1837 and the words of then Secretary of State Daniel Webster, who in response to the British argumentation of self-defence as the reason for destroying the Caroline, responded: “It will be for that Government to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also… [that it] did nothing unreasonable or excessive; since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.”111 The special minister, sent by the British to resolve the issue, justified the British actions according to the terms put forth by Webster, there by implicitly accepting the test of necessity and proportionality that Webster presented.112 The Caroline test has played a crucial role in state justification of the use of force in self-defence and in international response113, and is seen by many writers

107 Yoo, 2004, p. 739. 108 Bethlehem, D, Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors, Volume 106, Number 4, 2012, 770, p. 771; Schachter, O, The Right of States to Use Armed Force, Michigan Law Review, Volume 82, Number 5/6, 1984, 1620 p. 1634. 109 I.C.J Rep 1986, p. 14, para 176: “On one essential point, this treaty itself refers to pre-existing customary international law; this reference to customary law is contained in the actual text of Article 51, which mentions the "inherent right" (in the French text the "droit naturel") of individual or collective self-defence, which "nothing in the present Charter shall impair" and which applies in the event of an armed attack. The Court therefore finds that Article 51 of the Charter is only meaning ful on the basis that there is a "natural" or "inherent" right of self-defence, and it is hard to see how this can be other than of a customary nature, even if its present content has been confirmed and influenced by the Charter.” 110 Brownlie, 1963, p. 257; Yoo, 2004, p. 740. 111 Daniel Webster, letter to Henry Fox, British Minister in Washington (Apr 24, 1841), from: https://avalon.law.yale.edu/19th_century/br-1842d.asp#web1 (last visited 21 May 2021) 112 Lord Ashburton, letter to Daniel Webster (July 28, 1842), from: https://avalon.law.yale.edu/19th_century/br-1842d.asp#web1 (last visited 21 May 2021) 113 Gray, 2018, p. 158

as the leading definition of what constitutes permissible use of force in anticipation of an attack.114 If combined, the UN Charter and the anticipatory self-defence doctrine of customary law together produces a legal regime of rules on the use of force in international law that could be described as follows: in general, all use of force against a nations political independence or territorial integrity is prohibited. Only the UNSC may authorize the use of force against a nation, and only if that nation poses a threat to the international peace and security. In the absence of explicit authorization, a nation may only use force in self-defence. Read more broadly, self-defence includes the right to use force in anticipation of an attack, if that attack is imminent and the nature of the response is proportional and necessary to defeat the attack.115

4.3 Imminence The question regarding imminence and the legality of striking first was touched on, though indirectly, by the ICJ in the 1996 Advisory Opinion on the Legality of the Use of Nuclear Weapons in Armed Conflict: ”[T]he Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.”116 The fact that a majority of the judges could not decisively say whether or not first-use of nuclear weapons is invariably unlawful when the existence of a state is at stake makes one able to draw the conclusion that no law should be interpreted in a way that force states to stand by and take the first, perhaps fatal, blow before protecting themselves.117 Yoo puts forth an interpretation of imminence that reconfigures the concept to better fit the challenges and adversaries faced today since the imminent requirement in self-defence does not in a satisfying way grant states the ability to sufficiently protect itself and its citizens. According to Yoo, International law does not provide a clear definition of when a threat is sufficiently imminent to grant such rights to self-defence. The dictionary definition of imminent focuses on the temporal, but he proposes that if we do a reconfiguration of the concept of imminence in an international law perspective we can go beyond the temporal proximity of the threat. By the standard of ordinary temporal imminence in the Caroline test, in relation to a missile launched towards a nation, the threat of the missile would be imminent just before it lands, meaning that the probability of damage is close to 100 percent. When applied to the Caroline incident this might seem reasonable since it only included a minor border incursion and a destroyed

114 Bowett, D W, Self-Defence in International Law, Manchester: Manchester University Press, 1958, p. 58 115 Yoo, 2004, p. 741 116 Legality of the Threat or Use of Nuclear Weapons (Request by the United Nations General Assembly for an Advisory Opinion), 1996 I.C.J. 26 at 265, para. 105(2)E 117 Franck, T M, Recourse to Force, Cambridge: Cambridge University Press, 2002, p. 98

vessel. But when compared to the threat of nuclear weapons it is clear that the Caroline test and its focus on temporal imminence reasonably should include the potential magnitude of destruction of the attack in order to be compatible with the threats of today.118 This is a view on imminence similar to that later adopted by the US and the UK, as described below. Judge Higgins was also of the opinion that a literal reading of the provision on self-defence was to narrow, and stated that: “[I]n a nuclear age, common sense cannot require one to interpret an ambiguous provision in a text in a way that requires a state passively to accept its fate before it can defend itself. And, even in the face of conventional warfare, this would also seem the only realistic interpretation of the contemporary right of self-defence. It is the potentially devastating consequences of prohibiting self- defence unless an armed attack has already occurred that leads one to prefer this interpretation—though it has to be said that, as a matter of simple construction of the words alone, another conclusion might be reached.”119 In 2004, the UK Attorney-General answered a question regarding the UK position on pre-emptive self-defence. He declared that “[i]t is therefore the Government's view that international law permits the use of force in self-defence against an imminent attack but does not authorize the use of force to mount a pre-emptive strike against a threat that is more remote. However, those rules must be applied in the context of the particular facts of each case. That is important.”120 Even though not accepting pre-emptive self-defence as a legal doctrine, the Attorney-General continued by stating: “[t]he concept of what constitutes an ‘imminent’ armed attack will develop to meet new circumstances and new threats. For example, the resolutions passed by the UNSC in the wake of 11 September 2001 recognized both that large-scale terrorist actions could constitute an armed attack that will give rise to the right of self-defence and that force might, in certain circumstances, be used in self-defence against those who plan and perpetrate such acts and against those harboring them, if that is necessary to avert further such terrorist acts. It was on that basis that United Kingdom forces participated in military action against Al-Qaeda and the Taliban in Afghanistan. It must be right that states are able to act in self-defence in circumstances where there is evidence of further imminent attacks by terrorist groups, even if there is no specific evidence of where such an attack will take place or of the precise nature of the attack.”121 In 2017 the UK Attorney-General elaborated on this topic and listed a series of factors that should be taken into account when assessing “imminence” and “necessity” for action in self-defence. He said the list was not exhaustive, but

118 Yoo, 2004, p. 751 119 Higgins, R, Problems and Process: International Law and How We Use It, Oxford: Clarendon Press, 1994, p. 242 120 UK AG’s speech in the House of Lords, HL Debates, 21 April 2004, Vol 660, c370, URL: https://publications.parliament.uk/pa/ld200304/ldhansrd/vo040421/text/40421-07.htm (last visited 21 May 2021) 121 Ibid, C370

included “the nature and immediacy of the threat, the probability of an attack, whether the anticipated attack is part of a concerted pattern of continuing armed activity, the likely scale of the attack and the injury, loss or damage likely to result therefrom in the absence of mitigating action and the likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss or damage.”.122 The listed series of factors that the UK Attorney-General referenced was originally formulated by Sir Daniel Bethlehem in an American Journal of International Law-article. From the same article, the UK Attorney-General cites another formulation on the topic of imminence: “[t]he absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent for purposes of the exercise of a right of self- defense, provided that there is a reasonable and objective basis for concluding that an armed attack is imminent”. 123 The Attorney-General said this statement reflects the position of successive British Governments.124

4.3.1 Windows of oppertunity Yoo presents what he calls “windows of opportunity”, which he argues is a factor that the current doctrine of imminence excludes, even though more limited attacks could potentially reduce the overall harm and force used. With the temporal imminence doctrine, a nation is unable to use force against an enemy, such as a terrorist operative, when he comes into clear view because his attack is not temporally imminent, even though the net gain from striking when the opportunity shows itself might be reduced civilian casualties and costs of the attack. Not being allowed to strike when the opportunity shows itself might lead to never having the chance again, letting the enemy disappear or disguise within a civilian population.125

4.4 Weapons of Mass Destruction Governments have been in possession of WMD for many decades. There is however a big difference between the use of WMD by a state and by a non-state actor. The potential use of WMD by a state against another is almost guaranteed to generate a massive, global condemnation and a response in kind. The fear of inter-state reprisals however does not have the same deterring effect on non-state actors engaged in terrorist behaviour, especially those who do not seek a broad sympathy for its cause. This, together with the fact that states who suffer an

122 UK AG’s speech at International Institute for Strategic Studies, 11 January 2017, p. 15, URL: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data /file/583171/170111_Imminence_Speech_.pdf (last visited 21 May 2021) 123 Bethlehem, 2012, p. 776 124 UK AG’s speech at International Institute for Strategic Studies, p. 17. 125 Yoo, 2004, p. 751

WMD attack might have trouble pinpointing the attacker if the perpetrator is a loosely linked non-state actor sets the bar for using WMD once in such an organizations possession far lower than that of a state. 126 In regard to rouge- or hostile states developing their own WMD, the “imminent” requirement of self-defence needs to reflect the potential danger if such a state should be in possession of a ready-to-use WMD. This type of weaponry allows opponents to gain a massive advantage if allowed to strike first, one that a small nation might never recover from. With this in mind, it would be both unreasonable and unrealistic to prohibit a nation from defending itself before attacks of such catastrophic proportions occurs, and the mere possession of such weapons by a hostile state must be seen as a matter of grave concern. One states possession of WMD might also act as a shield, shifting the power dynamics in regions and granting such states the ability to wage other forms of aggression without fear of reprisals. The effects of WMD possession effectively shifts the contemporary security risks on which the doctrine of imminence is built and makes the self-defence value of the principle diminishing.127 This is especially true when dealing with non-state actors such as terrorist organizations. Responsible for 9/11 were a variety of individuals from different states, funded and instructed by a loose but sophisticated terrorist network, managing to kill over three thousand humans in the matter of hours. Those attacks were executed with hijacked planes. The damage caused by an attack in New York with nuclear weapons is almost unthinkable.128 The requirement of “imminence” stemming from the Caroline case, where the threat consisted of men with rifles conducting cross-border raids, cannot be compared to the horrific effects of a WMD attack on a city, and the ability by states to protect itself of such attacks should thus develop to meet the new threats. Sir Christopher Greenwood states “[w]here the threat is an attack by weapons of mass destruction, the risk imposed upon a State by waiting until that attack actually takes place compounded by the impossibility for that State to afford its population any effective protection once the attack has been launched, mean that such an attack can reasonably be treated as imminent in circumstances where an attack by conventional means would not be so regarded”.129 In chapter 5.6 is the Israeli airstrike on what, according to the International Atomic Energy Agancy (IAEA), most likely was a nuclear reactor described. Basically, the Israeli had intelligence that Syria, in secret, was building a nuclear reactor in order to acquire plutonium for a weapons program with support from North Korea. Since Israel feared WMD in the hands of the Syrian Government would be a threat to the state of Israel’s survival, it pre-emptively attacked the building before the reactor was complete. The interesting part in this case when

126 Murphy, Sean, D, The Doctrine of Preemptive Self-Defense, Villanova Law Review, Volume 50, Number 3, 2005, p. 699 127 Waxman, C, Matthew, The Use of Force Against States That Might Have Weapons of Mass Destruction, Michigan Journal of International Law, Volume 31, Number 1, 2009, p. 12 128 Ibid. 129 Greenwood, C, International law and the Pre-Emptive Use of Force. Afghanistan, Al-Qaeda, and Iraq, San Diego International Law Journal, Vol. 4, No. 7, 2003, p. 16

discussing the doctrine of pre-emptive self-defence in relation to WMD is the lack of reaction from other states. This even though the Israeli attack was executed before they had any legal argumentation or justification for the action. Approximately 25 years earlier, when Israel executed a similar attack on the Osirak reactor inside Iraq, described in chapter 5.3, the condemnation from states was overwhelming. There are differences between the two bombings mentioned above. For one, Syria was building its reactor secretly while Iraq was public with its intention and invited the IAEA to make inspections. Syria was not very popular in the international community, and built its reactor secretly with, possibly, the help of North Korea. Nevertheless, these differences do not change the fact that Israel acted pre-emptive without legal justification.130 It is likely that the thought of states with a track record of unpredictable behaviour being in possession of WMD might have caused states to shift its opinion on pre-emptive self-defence against such threats. There is no single case of state practice that can prove such a change, but over time, and with more similar cases of pre-emptive action, such a change can be proven. It is clear however that the threat of WMD affects how states analyse the doctrine of pre- emptive self-defence.131

4.5 Armed Attack

4.5.1 Pre 9/11 Article 2(4) of the UN Charter prohibits the threat or use of force against another states territorial integrity or political independence. Article 51 is meant to be the obverse side of this prohibition granting states the right to self-defence where the prohibition in article 2(4) is violated. It does not however grant such rights in matching terms. Article 51 does not give the right to self-defence against threats of force, even though threats are prohibited in article 2(4). If a state is threatened, the right to self-defence hinges on the threat meeting the requirements in the Caroline Case, see chapter 2.3.1 & 4.2. Furthermore, article 51 does not give legal justification to use self-defence against the other prohibited act, that is, a use of force against a state’s territorial integrity or political independence. The only time self-defence is permitted is against “an armed attack”. This gives rise to two questions. The first one is whether there is any non-military coercion that can trigger the right to self-defence. The second is whether all uses of force are armed attacks.132

130 Deeks, 2015, pp. 661-2 131 Ibid, pp. 671-2 132 Higgins, 1994, p. 248

The first question has a rather straight forward answer. Nothing in article 2(4) regulates diplomatic or economic duress. It seems as if the Charter, implicitly, accepts it cannot regulate economic pressure or political influence. Even though such action might be undesirable, it is not unlawful, and does not grant the right to military action in response.133 The second question, regarding what constitutes an armed attack and if all uses of force can be categorized as such, has been examined thoroughly by the ICJ in the Nicaragua v. United States Case134. The problem was identified and articulated even before the Nicaragua case, in 1970 by Franck, who wrote that wars of national liberation had brought to life a new form of assistance being given. Such assistance was usually given by state A, who had an interest in shifting the political power in state B, to guerrillas or contra bands within state Bs territory. He wrote that “those new kinds of assistance do not fit comfortably into conventional international concepts and categorizations” and continued by stating that “[i]nsofar as one state merely encourages guerrilla movements within another, an ‘armed attack’, at least in the conventional sense, cannot be said to have taken place. The more subtle and indirect the encouragement, the more tenuous becomes the analogy to an ‘armed attack’”135 and “since the Charter speaks only of a right to defend against an armed attack, the international community is left to ponder what principles govern the right to retort in instances of lesser trespass.”136 In his article, Franck described what he called a “line of continuity” that runs down from the invasion by military force with troops and tanks, through the support of neighbouring insurgents with armaments and training, down to radio propaganda calling for revolution in another state. He stated that these acts were generically similar, but also clearly dissimilar, and that a law regulating this area must be able to differentiate between these different acts.137 It is clear that a state can use force either directly or through the acts of irregulars for whom it has assumed responsibility, and that law-making resolutions of the UN constantly have been trying to oppose such indirect uses of force.138 In The UNGA Declaration of 1965 on the Inadmissibility of Intervention it was stated that “no state shall organise, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another state, or interfere in civil strife in another state”139 and in similar terms, in the Friendly Relations Declaration of 1970, it said that “[e]very State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State”.140 There are no

133 Ibid, p. 248 134 I.C.J. Rep 1986, p. 14 135 Franck, 1970, p. 812 136 Ibid, p. 813 137 Ibid, p. 813 138 Higgins, 1994, p. 249 139 UN General Assembly Resolution 2131 of 21 December 1965, para. 2 140 UN General Assembly Resolution 2625 of 24 October 1970.

exceptions for promotion of self-determination or wars of national liberation in either of these clauses.141 While resolutions such as those mentioned above were passed the idea of self- determination, both in a colonial- and later general context, were taking hold. One question that arose was how a strife for self-determination against, for example a colonial power, would be possible when, at the same time, efforts from other states interfering were constantly declared unlawful. Also, parallel to law- making resolutions prohibiting outside support, other resolutions from the UNGA were passed calling for support, both moral and material, towards actions of self-determination.142 In the 1970s most transnational support was directed at efforts of self- determination against the remaining colonial powers, but in the 1980s, many of the states previously against such outside support began giving military assistance themselves. One example is when the West supported the Mujahadeen against the Soviet Union in Afghanistan, saying it provided military assistance for self- defence against an invader. At the end of the 80s, many states engaged in this kind of activities, calling it a way of ensuring peoples freedom of choice against oppressive regimes, assistance in wars of national liberation or to help get rid of invaders. With internal self-determination as a reason to supply assistance in wars of national liberation, a big part of such conflicts was dependent on outside support in the form of both financing, training and arming.143 Even though many different states participated in activities such as those described above, it was in in the Nicaragua v. United States Case144 the matter came to a head.145 In the Nicaragua Case, the court found that the US had supplied financial aid to military and paramilitary actions by rebel groups called the Contras. The US claimed the Contras were defending El Salvador, Honduras and Costa Rica against Nicaraguan incursions into their respective territory, thus making the US support a contribution towards self-defence. In reality though, the Contras were Nicaraguans fighting their own government, and the Court found the US support unlawful, rejecting the self-defence claim.146 The Court continued by taking on the question regarding what constitutes an “armed attack”. Except for the sending of regular armed forces across an international boarder, the ICJ cites the Definition of Aggression147 and states that also “[t]he sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to” (inter alia) an actual armed attack conducted by regular forces, “or its substantial involvement therein”, might qualify as such. The Court continues by stating this definition might be used to illustrate customary

141 Higgins, 1994, p. 249 142 Ibid, p. 249 143 Ibid, p. 249 144 I.C.J. Rep 1986, p. 14 145 Higgins, 1994, p. 250 146 Idib, p. 250; I.C.J, Rep 1986, 14, para 238 147 UN General Assembly Resolution 3314 of 14 December 1974

international law, and that “the Court does not believe that the concept of ‘armed attack’ includes not only acts by armed bands where such acts occur on a significant scale but also assistance to rebels in the form of the provision of weapons or logistical or other support. Such assistance may be regarded as a threat or use of force…”.148 What the Court found is basically that an armed attack can be both a direct attack by regular forces of one state against another, as well as indirect force through armed bands or irregulars. The defining factor is the scale of the activity. Low levels of direct or indirect uses of force might still be considered unlawful but will not reach the level necessary to be considered an armed attack, thus not activating the right to self-defence.149 Judge Schwebel, in his dissenting opinion of the Nicaragua Case, put forth criticism later argued by several other authors150. Schwebel states that “The Court appears to offer—quite gratuitously—a prescription for overthrow of weaker governments by predatory governments while denying potential victims what in some cases may be their only hope of survival”, referring to states unability to seek assistance by collective self-defence when faced with low levels of terrorism or force not equivalent to an actual armed attack.151 In the Nicaragua Case, the Court found that attacks by irregulars or armed bands can be considered an armed attack if, as put forth in the Definition of Aggression, the force used is “equivalent to an armed attack by the regular forces of a state”. There is however no conclusion as to how much force from regular forces is required in order to activate the right to self-defence, thus not how much force irregulars or armed bands have to use to activate the same right, leaving victim states with a hard task of assessing when, if ever, low-level irregular military activity equals force by a foreign army in such a way that it can resort to legal force in self-defence.152

4.5.2 After 9/11 Before 9/11, as stated above, the test generally accepted by states as to what constituted an armed attack was based on the definition contained in the Definition of Aggression, which was used by the ICJ in the Nicaragua Case. Following 9/11 however, a question of whether a fundamental change to this definition had happened arose. The question now was if the definition had been extended to include attacks by non-state actors with little or no state support.153 After 9/11 President Bush changed the playfield by stating the US would no longer differentiate between terrorists and states that harboured them. Any state

148 I.C.J Rep. 1986, p. 14, para 195 149 Higgins, 1994, p. 250 150 See e.g Reisman, M, Old Wine in New Bottles: The Reagan and Brezhnev Doctrines in Contemporary International Law and Practice, Yale Journal of International Law, Vol. 13, no. 1, 1988, p. 195 151 I.C.J. Rep. 1986, p. 14, dissenting opinion of Judge Schwebel, para 177 152 Higgins, 1994, p. 251 153 Gray, 2018, p 207

harbouring terrorists would be seen and treated by the US as a hostile regime.154 Soon after the President’s speech, a joint resolution called the AUMF was passed in Congress, stating that “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harboured such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons”.155 In a letter to the UNSC the US argued a right to self-defence under Article 51 but did not use the same rhetoric as in the president’s speech to the nation or the wording contained in the AUMF. In the letter the US stated it had “obtained clear and compelling information that the Al-Qaeda organization, which is supported by the Taliban regime in Afghanistan, had a central role in the attacks” and that “[t]he attacks on 11 September 2001 and the ongoing threat to the United States and its nationals posed by the Al-Qaeda organization have been made possible by the decision of the Taliban regime to allow the parts of Afghanistan that it controls to be used by this organization as a base of operation.”156 Even though the Taliban regime of Afghanistan faced pressure from major parts of the international community they did not change their policy but continued letting Al Qaeda use parts of their territory as a base of operations.157 The UK argued Osama bin Laden and the Al Qaeda organizations’ actions had been made possible due to their close ties to the Taliban regime, who gave them impunity within their territory to operate and plan their attacks, making Al Qaeda something in between an organization and a state.158 In the UK letter to the UNSC following the invasion of Afghanistan, it said that the military action taken was directed “against Usama Bin Laden’s Al-Qaeda terrorist organization and the Taliban regime that is supporting it”.159 Later on, the UK broadened their reasoning behind the invasion somewhat claiming the military action taken against Al Qaeda and the Taliban in Afghanistan was an act of self-defence against those who planned and executed large-scale terrorist attacks and those harbouring the responsible.160 Neither state specified what level of involvement was required by Afghanistan in order to use force against its territory. Among commentators the difference in

154Statement by the President in His Address to the Nation, 11 september 2001, URL: https://georgewbush-whitehouse.archives.gov/news/releases/2001/09/print/20010911-16.html (last visited 21 May 2021) 155 Authorization for Use of Military Force, PUBLIC LAW 107–40—SEPT. 18, 2001, URL: https://www.congress.gov/107/plaws/publ40/PLAW-107publ40.pdf (last visited 21 May 20201) 156 Un Doc. S/2001/946 (Letter from the Permanent Representative of the United States to the Security Council, dated 7 October 2001) 157 Grey, 2018, p. 208 158 Ibid, p. 208 159 Un Doc. S/2001/947 (Letter from the representative of the UK to the Security Council, dated 7 October 2001) 160 Attorney-General Speech in the House of Lords, HL Debates, 21 April 2004, Vol 660, c370

interpretation of both the facts of the case and the relevance of the language used by the US and the UK are big. They range from some arguing the law on self- defence has been widened, now allowing self-defence against states harbouring terrorists, while some are of the opinion such a change would be impermissible. A third category of commentators argue the ties between Al Qaeda and the Taliban regime were so close that the action taken against Afghanistan falls under the traditional requirements as stipulated in the Definition of Aggression, even though the US used the word “harbouring”.161 Regarding Afghanistan and the Taliban regime, several UNSC resolutions were also passed, starting years before the invasion, condemning the sheltering and training of terrorists and the planning of terrorist acts in the Taliban controlled area of the country. 162 It is clear that the uncertainty regarding what constitutes an armed attack still remains.

4.6 Self-Defence Against Non-State Actors Following 9/11 the international response from Governments was one of impressive magnitude and unity. The UNSC passed a resolution condemning the attacks and, for the first time ever, implicitly gave states the right to self-defence against a terrorist attack.163 The North Atlantic Treaty Organization (NATO) reacted in a similar fashion by invoking Article 5 of its treaty which meant they considered the attack on the US an armed attack on all member states thereby preparing to act in collective self-defence.164 The Organization of American states (OAS) also invoked collective self-defence165 and support for military action was given from both Russia, Japan and China.166

4.7 Summary The UN Charter was signed following WWII, with the stated objective “to save succeeding generations from the scourge of war”167, and had only interstate conflicts in mind. The nature of conflict, and the weapons available, have since then changed drastically. The general principles of interpretation of treaties as articulated in Article 31 and 32 of the VCLT stipulates that the interpretation should be in accordance with the ordinary meaning. The ICJ has said however,

161 Grey, 2018, p. 208 162 See e.g Security Council Resolution 1193 of 28 August 1998; Security Council Resolution 1214 of 8 December 1998; Security Council Resolution 1267 of 15 October 1999; Security Council Resolution 1333 of 19 December 2000 163 Security Council Resolution 1368 of 12 September 2001 164 Statement by NATO, Press Release, 12 September 2001, URL: https://www.nato.int/docu/pr/2001/p01-124e.htm (last visited 21 May 2021) 165 Meeting of Consultation of Ministers of Foreign Affairs, 21 September 2001, RC.24/RES.1/01, URL: http://www.oas.org/OASpage/crisis/RC.24e.htm (last visited 21 May 2021) 166 Gray, 2018, p. 201 167 UN Charter Preamble.

as mentioned in chapter 2.1, that developments in international law can be considered when interpreting. States and scholars in favour of a wider self- defence doctrine argue such a consideration is required. The way war and international conflicts are fought, and by who, have changed in a way that requires the law, or the interpretation thereof, to change as well. This does not necessarily mean that it has though. Pre-emptive self-defence as a way of conduct was by no means invented by President Bush or presented for the first time in the 2002 NSS, but it was from that point a significant part of US policy. It seems reasonable to believe though that the international reactions to the policy, together with the lack of support for the invasion of Iraq in 2003, made President Obama move away from speaking of pre-emption and removing it from the 2010 NSS. This was not a step back from the main components of the doctrine, however. Since the US, the UK, Israel and other states and writers consider the doctrine of anticipatory self- defence part of customary international law, there has been a consistent work on expanding the different components within that doctrine to reach the same legal justification for action as would be granted by the pre-emptive self-defence doctrine, but without calling it pre-emption. In interstate conflicts, the imminence-requirement as understood by its ordinary meaning gives the right to self-defence when an armed attack is imminent. In order to push the boundaries of what could constitute an imminent attack, it is argued that an attack can be considered imminent even though there are no specific evidence of either where the attack will take place, or of the precise nature of the attack.168 This is an understandable strife since one of the main adversaries today is non- state actors, usually consisting of terrorist organizations without territory or a civilian population to protect, and without regard for international law. It was therefore an important win for the US when it received massive support for its actions against Al-Qaeda in Afghanistan, fighting a war against a terrorist organization and the state that harboured them. The recognition from the UNSC in resolutions 1368 and 1373 following 9/11, stating an inherent right to self- defence against international terrorism, was used as a green light to attribute armed attacks to non-state actors. This has been an important aspect of the legal framework justifying the US war on terrorism that ensued. Since the deterring effects of interstate conflict, that is fear of states responding in both individual and collective self-defence together with other non-violent reprisals such as lost diplomatic ties and economic isolation, are removed when the opponent is in total disregard of such consequences an expansion of the right to self-defence against such actors must be found.

168 UK AG’s speech in the House of Lords, HL Debates, 21 April 2004, Vol 660, c370

5 State Practice

5.1 The Cuban Missile Crisis In October 1962 the US announced it would impose a naval quarantine on Cuba with the intent to repel or seize any ship from any port carrying offensive military equipment. The quarantine was a response to the construction of missile sites and the supplying of nuclear missiles from Soviet, which according to the US was an imminent threat to US national security.169 The US argued that the “quarantine”, a word which had been chosen with great care, did not constitute a violation of the prohibition of the use of force according to article 2(4).170 The “quarantine” was however, regardless of the wording, in reality a blockade which by generally accepted norms of international law constitutes a violation of article 2(4). In order for such action to be permissible it would need to find legitimization from one of the exceptions of article 2(4). The initial argumentation from the US was based on the approval of its actions from the Organization of the American States171, but the legal discussion that ensued focused on the question of anticipatory self-defence.172 When the question of the legality of the “quarantine” was discussed in the UNSC two sides formed with great similarity to those of the cold war. On one side, arguing that the action taken by the US was legal, was China, France, Ireland, the UK and Venezuela. On Opposite side, claiming that the action was unlawful, was Romania, the Soviet Union and the United Arab Republic (UAR). During the discussions there were no rejections of the notion of anticipatory self- defence. A majority of the discussion rather centred on the purpose of the soviet missiles. What seemed to be of most importance was the question of whether the missiles were of offensive or defensive nature. Even Soviet and Cuba initially argued the missiles were for defensive purposes, seemingly accepting the argument that offensive missiles would have granted the US a right of pre- emptive action. This indicates that member-states of the council had an

169 Alder, M C, The Inherent Right of Self-Defence in International Law, Dordrecht: Springer Netherlands, 2013, pp. 129-30. 170 Franck, 2002, p. 99 171 A regional organization now containing all of Americas 35 independent states founded in 1889. URL: http://www.oas.org/en/about/who_we_are.asp (last visited 21 May 2021) 172 Arend, A C, Beck, R J, International Law and the Use of Force, London: Routledge, 1993, p. 75

underlying acceptance that pre-emptive, or anticipatory, use of force in self- defence in some circumstances could be justified.173 The Cuban missile crisis and following discussions in the UNSC is by no means a clear-cut case for the legality of anticipatory or pre-emptive self-defence. What the crisis did however was giving us a sense of states attitude to the doctrine by the lack of condemnation. Not even the states who opposed the US action condemned the anticipatory action as such. Western European and Western Hemisphere states supported the US action, while African and Asian states supported the neutral initiative of the Secretary-General.174

5.2 The Six-Day War In May 1967 Cairo’s foreign minister sent a message to the UN Secretary-General asking for the withdrawal of the United Nations’ Emergency Force (UNEF) from the Sinai. The UNEF had been stationed there, acting as a buffer between the Israelis and Egyptians, since the end of the war in 1956. As soon as the UNEF was gone, the UAR forces redeployed and took control of the buffer zone, placing themselves face to face with Israeli forces on the border of Israel. Without the presence of the UNEF at the Sinai base at Sharm El Sheikh, Cairo expanded their military operation by closing the Gulf of Aqaba and the Strait of Tiran for Israeli shipping. Whilst the UAR expanded its positions, an increase in Palestinian forces gathered along the Syrian/Israel-boarder. On June 5, both Israel and Egypt notified the President of the UNSC that an armed attack had been initiated by the other side. A short while after the initial confrontation fighting spread to several other places along Israel’s border.175 The first emergency session of the UNSC was held the same day as fighting began. During this session the Secretary-General reported that, due to the evacuation of his personnel in Sinai, he was unable to say which side initiated the hostilities.176 The day after a resolution was passed unanimously by the members of the council, placing blame on either side but urged the parties “to take forthwith as a first step all measures for an immediate cease-fire...”.177 Israel had two lines of argumentation in the UNSC. Firstly, they argued they were the victim of an armed attack by the combined forces of UAR, Jordan and Syria. This argument could be conceded as somewhat unlikely due to the great success the Israeli forces had during the first days of fighting, expanding their territory more than four times its original size. Alternatively, Israel argued a right to anticipatory self-defence. This right was based on the withdrawal of the UNEF from Sinai by request of Cairo together with the military mobilization of the UAR forces.178 The Israeli representative in the UNSC stated that:

173 ibid. p. 75 174 ibid. P. 76; Franck, 2002, p. 101 175 Franck, 2002, pp. 101-2 176 The Yearbook of the United Nations, 1967, p. 175 177 Security Council Resolution 233 of June 1967 178 Franck, 2002, pp. 102-3

“[a]n army, greater than any force ever assembled in history in Sinai, had massed against Israel’s southern frontier. Egypt had dismissed the United Nations Forces which symbolized the international interest in the maintenance of peace in our region. Nasser had provocatively brought five infantry divisions and two armoured divisions up to our very gates; 80,000 men and 900 tanks were poised to move…Thus, on the morning of 5 June, When Egyptian forces engaged us by air and land, bombarding the villages of Kissufim, Nahal-Oz, and Ein Hashelosha we knew that our limit of safety had been reached, and perhaps passed. In accordance with its inherent right of self-defence as formulated by Article 51 of the United Nations charter, Israel responded defensively in full strength.”179 In July the UNSC gave the Secretary-General authorization to work with Israel and the UAR in order to place United Nations military observers in the Suez Canal sector.180 In November a resolution was passed that stated the inadmissibility of territorial gain by war, but also linked the withdrawal of Israeli forces to the termination of all states or claims of belligerency against Israel and the right of Israel to live in peace, free from threats or acts of force, within secure and clear boundaries.181 The anticipatory self-defence by the Israeli forces at the beginning of the armed conflict have sometimes, unconvincingly, been explained as actual self- defence against the UAR blockade. Israel had not exhausted its diplomatic remedies by any means though in order to settle the dispute before attacking.182 The discussions in the United Nations during the summer following the conflict never involved appointing blame to either of the parties for starting the conflict and never condemned the exercise of self-defence by Israel.183 This does not equate to an open-ended endorsement for the doctrine of anticipatory self- defence, but it does recognize that anticipatory self-defence might be a legitimate course of action in demonstrable circumstances of extreme necessity where the survival of a state is at stake.184

5.3 Attack on iraq’s Nuclear Reactor On June 7, 1981, the Israel Air Force destroyed “Osirak”, an atomic reactor situated near Baghdad in Iraq. The reason for the attack was Iraq’s alleged attempts to create nuclear weapons, which the Iraqi ruler, according to the Israeli representative in the UNSC, had announced would be used against Israel once developed. The reactor was not yet operational, but according to the Israeli representative, they had reliable intelligence saying the reactor would be ready and “hot” in either July or September. An attack when the reactor was

179 Eban, A (Israel), UN Security Council Document S/PV.1348, para. 144, 155 (6 June 1967) 180 Security Council Document S/PV.1366 para. 125-27 (9 July 1967) 181 Security Council Resolution 242 of 22 November 1967 182 Franck, 2002, pp. 104-5 183 Shaw, 2012, p. 1029 184 Franck, 2002, p. 105

operational would have been impossible, according to Israel. This due to the massive, radioactive fallout over Baghdad and its citizens such an attack would cause. The attack was therefore launched before the construction was complete. Israel argued the act was in self-defence.185 In a letter from the Minister of Foreign Affairs of Iraq to the President of the UNSC where he asked for an immediate meeting of the Council, he described the Israeli attack as a “grave act of aggression”. He continued by pointing out that Iraq was part of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT), and that not a single violation of the nuclear safeguards agreement had ever been registered by the IAEA.186 On June 12, a telegram was transmitted from the IAEA Director General by which the Agency’s Board of Governors condemned Israel for the attack and recommended suspending Israel’s membership rights in IAEA.187 States’ reactions to Israel’s actions were very negative. On June 19 a resolution was unanimously passed in the UNSC strongly condemning the Israeli attack as a violation of the UN charter and a threat to international peace, while affirming Iraq’s “inalienable sovereign right… to establish programmes of technological and nuclear development”. The resolution also urged Israel to place its own nuclear facilities under the safeguard of the IAEA.188 In November the UNGA endorsed a resolution containing a “solemn warning to Israel to cease its threats and the commission of such armed attacks against nuclear facilities”. When voting on the matter in the UNGA, only the US and Israel opposed while 109 votes were in favour with 34 abstentions.189 In the end however, neither the UNSC, nor the UNGA imposed any sanctions against Israel.190 Israel argued it had acted in anticipatory self-defence against an imminent nuclear attack by Iraq. The negative response from other states was a clear indication they did not buy this argumentation. During discussions in the UNSC regarding the legality of anticipatory self-defence, there were primarily two sides. Iraq, supported by several other states, argued that without an armed attack there couldn’t be a legitimate self-defence. The UK, together with a few other states, argued self-defence against an imminent attack was permissible according to the Webster formula in the Caroline Case.191 Even though basically all states agreed Israel was at fault, no consensus was reached concerning the scope of self- defence when faced with an imminent attack.

185 Un Doc. S/14510 (letter from the Permanent Representative of Israel to the Security Council, 8 June 1981) 186 The Yearbook of the United Nations, 1981, p. 275 187 Ibid, p. 275 188 Security Council Resolution 487 of June 19 1981 189 General Assembly Resolution 36/27 of 13 November 1981 190 Franck, 2002, p. 106 191 Ibid. p. 106; Arend & Beck, 1993, p. 78

5.4 Operation Enduring Freedom On 11 September 2001 the World Trade Center and Pentagon were attacked by members of the terrorist-organization Al Qaeda. Al Qaeda was at the time primarily operating out of Afghanistan and had ties to the Taliban regime ruling the country.192 The day after the attack, a resolution was passed in the UNSC condemning the action and recognizing the inherent right of individual and collective self- defence. The resolution also stated “that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable”.193 On September 28 another resolution was passed in the council reaffirming its condemnation of the terrorist attacks, which were to be seen as a threat to international peace and security, and called on all states to “combat by all means, in accordance with the Charter of the United Nations” such acts.194 With more information of the perpetrators gathered, the US urged the Taliban regime to change its policy and affectively close the country for Al Qaeda as a base of operations. It also demanded access in order to make sure the demands were fulfilled. When the Taliban Regime refused, the US together with other states initiated Operation Enduring Freedom, with self-defence as the legal basis for the operation.195 The US representative wrote in a letter to the President of the UNSC: “In accordance with Article 51 of the Charter of the United Nations, I wish, on behalf of my Government, to report that the United States of America, together with other States, has initiated actions in the exercise of its inherent right of individual and collective self-defence following the armed attacks that were carried out against the United States on 11 September 2001”.196 Judging by the UNSC resolutions passed after the September 11 attacks, recognizing the inherent right of individual or collective self-defence in the context of Article 51 of the UN Charter, these attacks were to be seen as ‘armed attacks’ in the traditional context: one state attacks another state, even though the attacks were executed by a terrorist-organization.197 The scope of ‘armed attack’ is discussed in chapter 4.5. As a matter of states views on the doctrine of pre-emptive or anticipatory self- defence, this case might show a shift in opinion. The fact of the case is that the attacks on September 11 took place several weeks before the invasion of Afghanistan, which probably would constitute retaliation rather than self-defence and therefore be a violation of the UN Charter. However, Al-Qaeda had previously claimed responsibility for attacks on US targets, and was likely to attack again, meeting the criteria of ‘imminence’ and granting the US a right to

192 Dinstein, 2005, p. 207 193 Security Council Resolution 1368 of September 12 2001 194 Security Council Resolution 1373 of September 28 2001 195 Un Doc. S/2001/946 (letter from the Permanent Representative of the United States to the Security Council, 7 October 2001) 196 Ibid. 197 Dinstein, 2005, pp. 207-8

self-defence according to customary international law. Even though some commentators criticised this line, most states supported the action.198

5.5 Operation Iraqi Freedom On 20 March 2003 the US, the UK and Australia each sent a letter to the UNSC announcing the start of military operations in Iraq.199 The legal justification for this military action stems from the Iraqi invasion of Kuwait in 1990 and a series of UNSC resolutions. After the Iraqi invasion of Kuwait on 2 August 1990 the UNSC passed resolution 660. The resolution stated that there existed a breach of international peace and security and demanded the Iraqi forces to immediately withdraw from Kuwait.200 Following resolution 660 a series of other resolutions were passed demanding Iraq to seize its actions and return its forces, but with little success. In resolution 678 Iraq was given, as “a pause of goodwill”, one last chance to comply with resolution 660 and all subsequent relevant resolutions. The UNSC also authorized member states who co-operated with the government of Kuwait, unless Iraq fully complied with the previously passed resolution before 15 January 1991, “to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area”.201 In April 1991 resolution 687 was passed. In its preamble the UNSC declared its awareness of the use of ballistic missiles by Iraq in unprovoked attacks and stated the need for specific measures against such weapons located within Iraq. The UNSC continued by expressing concern with reports regarding Iraqi attempts to buy materials for a nuclear-weapons programme and “decides that Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of” all biological and chemical weapons, including subsystems, components, research, development, support and production facilities and ballistic missiles with a greater range than 150 kilometres including major parts, repair and production facilities. In order for the UNSC to make sure Iraq complied the resolution also contained a fifteen-day deadline after which Iraq was to submit a full declaration of all relevant materials and facilities mentioned above. The resolution also required Iraq to accept on-site inspections by a special commission.202

198 Greenwood, 2003, p. 23 199 Un Doc. S/2003/351 (Letter from the Permanent Representative of the United States to the Security Council, 20 March 2003); Un Doc. S/2003/350 (Letter from the Permanent Representative of the United Kingdom to the Security Council, 20 March 2003); Un Doc. S/2003/352 (Letter from the Permanent Representative of Australia to the Security Council, 20 March 2003) 200 Security Council Resolution 660 of 2 august 1990 201 Security Council Resolution 678 of 29 november 1990 202 Security Council Resolution 687 of 8 april 1991

Over ten years later, in November 2002, resolution 1441 was passed in the UNSC. It recalled all previous, relevant resolutions including 660, 678 and 687, and decided that Iraq “has been and remains in material breach of its obligations under relevant resolutions, including resolution 687”. The resolution granted Iraq one last chance to comply with its disarmament obligations and stated that Iraq was to submit a full declaration of all weaponry as listed to The United Nations Monitoring, Verification and Inspection Commission (UNMOVIC), IAEA and the council within thirty days. 203 The letters sent by the US, the UK and Australia to the UNSC announcing the start of Operation Iraqi Freedom used the above-mentioned resolutions to justify the military action as follows: Resolution 678 authorized member states the use of force in order to repel Iraq From Kuwait. Resolution 687 (and others) conditioned the end of hostilities towards Iraq with disarmament obligations which Iraq needed to fulfil. If those disarmament obligations were breached the basis for ceasefire was removed. When resolution 1441 affirmed that Iraq still was in breach of the disarmament obligations, the right to use force according to resolution 678 was revived.204 The letter from the US, unlike the other two, also contained a reference to self-defence arguing that the actions taken “…are necessary steps to defend the United States and the international community from the threat posed by Iraq…”205 which align with the US doctrine of pre- emptive self-defence discussed in chapter 3.

5.6 Israeli Airstrike on Syria’s Al-Kibar Facility On September 6, an Israeli airstrike was launched against a target inside Syria. During the first weeks after the attack, Syria did not request a meeting of the UNSC, nor was the question discussed in the UNGA. A few weeks later Syria conceded it had been hit and the Syrian President Bashar Al-Assad said the target had been a military building under construction. Syria also made a brief reference to the incident in the UNGA the same day. The day after, Israel finally confirmed it had executed an attack inside Syria but refused to give any further information regarding the operation.206 In mid-October the New York Times released an article citing unidentified US and foreign intelligence officials claiming the target Israel had struck was a Syrian nuclear complex. The article also said the nuclear complex seemed to be modelled after a North Korean nuclear reactor. The level of involvement by North Korea was however unclear.207 Neither Israel nor the US commented on

203 Security Council Resolution 1441 of 8 november 2002 204 Un Doc. S/2003/351; Un Doc. S/2003/352; Un Doc. S/2003/350 205 Un Doc. S/2003/351 206 Garwood-Gowers, 2011, p. 267 207 DE Sanger & M Mazzetti, Israel Struck Syrian Nuclear Project, Analysts Say, New York Times, New York, 14 October 2007, URL: https://www.nytimes.com/2007/10/14/washington/14weapons.html (last visited 21 May 2021)

these reports. The IAEA however released a statement saying they had no knowledge of any undeclared nuclear activities in Syria.208 On 24 April the US released intelligence about the Al-Kibar complex.209 According to this intelligence, the US had received information about potential nuclear activities in Syria since the early 1990s. In 2007 they had evidence that Al-Kibar was an almost finished nuclear reactor able to produce plutonium for a weapons programme.210 When the Israeli strike was launched, the site was weeks or months from being fully operational.211 During the US briefing the senior intelligence officials expressed support for the Israeli action, though stating the US did not “green light” the strike or had any physical involvement in the action, and referenced the Bush doctrine of pre-emptive self-defence: “We understand the Israeli action. We believe this clandestine reactor was a threat to regional peace and security, and we have stated before that we cannot allow the world’s most dangerous regimes to acquire the world’s most dangerous weapons.”212 Following the release of the US intelligence the IAEA made a statement criticising the US and Israel for not supplying the agency with relevant information earlier, but also stating it would investigate the US claim. 213 Syria denied that the Al-Kibar site was nuclear related and said the US lacked credibility after their failure in providing evidence of WMD in Iraq. Except Syria, no other country condemned the Israeli airstrike even though the US intelligence confirmed detailed information of the attack. During the UNSC meeting the following day where non-proliferation issues were discussed, still no other state condemned the Israeli use of force.214

5.7 The Killing of Qasem Soleimani On January 3, 2020, Qasam Soleimani, leader of the Iranian Military of the Quds Force of the Islamic Revolutionary Guard Corps (IRGC), was killed in a drone strike near Baghdad International Airport in Iraq. The strike was conducted by the US military. Initially, the Trump administration argued the strike was in self- defence to halt imminent attacks on US Embassies and personnel, later changing the justification to self-defence following several actions taken by Iran in the

208 IAEA, Statement Attributable to IAEA Spokesperson Melissa Fleming on Recent Media Reports Concerning Syria, 15 October 2007, URL: https://www.iaea.org/newscenter/pressreleases/recent-media-reports-concerning-syria (last visited 21 May 2021) 209 Office of Director of National Intelligence, Background Briefing with Senior U.S. Officials on Syria’s Covert Nuclear Reactor and North Koreai’s Involvement, 24 April 2008, URL: https://www.hsdl.org/?view&did=485593 (last visited 21 May 2021) 210 Ibid, p. 11 211 Ibid, p. 14 212 Ibid, p. 8 213 IAEA, Statement by AIEA Director General Mohamed ElBaradei’, 25 April 2008, URL: https://www.iaea.org/newscenter/pressreleases/statement-iaea-director-general-mohamed- elbaradei (last visited 21 May 2021) 214 Garwood-Gowers, 2011, p. 268

previous months.215 In the letter sent to the UNSC following the strike, the US argued it had exercised its inherent right to self-defence in response to “an escalating series of armed attacks in recent months by the Islamic Republic of Iran and Iran-supported militias on United States forces and interests in the Middle East region..”.216 The letter stated the strike was intended to have a deterring effect on future attacks committed or supported by Iran. It continued by listing the actions taken by Iran that led the US to kill Soleimani, which included threats to a US ship in the Strait of Hormuz and an “armed attack” on a US surveillance aircraft in international airspace. The list also contained attacks by Qods Force-backed militias, such as Kata’ib Hizballah, against US military bases inside Iraq, killing a US Contractor, and an attack against the US Embassy in Baghdad.217 Iran, in response to the killing of Soleimani, announced on January 5 it would no longer uphold its commitment to limit the country’s enrichment of uranium, as agreed upon in The Joint Comprehensive Plan of Action (JCPOA).218 On January 8 Iran continued its response by launching sixteen missiles against US military bases in Iraq.219 In the Iranian letter to the UNSC, it was stated that the actions taken was in accordance with Iran’s inherent right of self-defence, and that the attacks were directed at a US military base in Iraq from which the “cowardly armed attack against Martyr Soleimani was launched”.220 The international reactions from states concerning the attacks were mixed, ranging from support of the legality of the US use of force by Georgia221, Israel222,

215 U.S. Drone Strike in Iraq Kills Iranian Military Leader Qasem Soleimani, American Journal of International Law, Vol. 114, No. 2, 2020, p. 313 216Un Doc. S/2020/20 (Letter from the representative of the US to the Security Council, dated January 8, 2020) 217 Ibid. 218 Laurel Wamsley & Emily Kwong, Iran Abandons Nuclear Deal Limitations in Wake of Soleimani Killing, National Public Radio, Jan. 5 2020, URL: https://www.npr.org/2020/01/05/793814276/iran-abandons-nuclear-deal-limitations-in-wake- of-soleimani-killing (last visited 21 May 2021) 219 Shane Harris, Josh Dawsey, Dan Lamothe & Missy Ryan, “Launch, Launch, Launch”: Inside the Trump Administration as the Iranian Missiles Began to Fall, Washington Post, Jan. 8 2020, URL: https://www.washingtonpost.com/national-security/us-officials-knew-iranian-missiles-were- coming-hours-in-advance/2020/01/08/b6297b4c-3235-11ea-a053-dc6d944ba776_story.html (last visited 21 May 2021) 220 Un Doc. S/2020/19 (Letter from the representative of the Islamic Republic of Iran to the Security Council, dated January 8, 2020) 221 Tweet by Georgian Foreign Minister on 3 January 2020, URL: https://twitter.com/DZalkaliani/status/1213190674151071749?s=20 (last visited 21 May 2021) 222 PM Netanyahu statement on targeting of Qassem Soleimani, 3 January 2020, URL: https://mfa.gov.il/MFA/PressRoom/2019/Pages/PM-Netanyahu-statement-on-targeting-of- Qassem-Soleimani-3-January-2020.aspx (last visited 21 May 2021)

Kosovo223, Latvia224, Lithuania225 and the UK226, to claims of illegality of the US use of force by China227, Cuba228, Lebanon229, Malaysia230 and Russia231. Most reactions from states did not, however, express a definite position regarding the legality of action but displayed implicit understanding or opposition, or ambiguous political statements.232 As for the use of force by Iran, only Syria supported its legality, while a lot of western states condemned the legality and most other states remained silent.233

5.8 Summary The practice and behaviour of states can lead to custom if such practice is, as described in Article 38 (1)(b) of the ICJ Statute, “general practice accepted as law”. The US has maintained a constant practice of self-defence against imminent threats for a very long time. In the Cuban Missile Crisis, the US argued Soviet missiles on Cuban territory constituted an imminent threat to US national security and imposed a “quarantine”. This anticipatory posture met with some

223 Quote of Kosovo’s Prime Minister Ramush Haradinaj in Bytyci, Fatos, Kosovo arrests Iran supporter over comments after Soleimani’s death, Reuters, January 7 2020, URL: https://www.reuters.com/article/us-kosovo-iran-crime/kosovo-arrests-iran-supporter-over- comments-after-soleimanis-death-idUSKBN1Z62AH (last visited 21 May 2021) 224 Tweet by Latvia’s Foreign Ministry on 3 January 2020, URL: https://twitter.com/edgarsrinkevics/status/1213161574061551626 (last visited 21 May 2021) 225 Tweet by The Ministry of Foreign Affairs of Lithuania on 3 January 2020, URL: https://twitter.com/LinkeviciusL/status/1213125016465891328 (last visited 21 May 2021) 226 Statement by UK Foreign Secretary Raab on 3 January 2020, URL: https://www.gov.uk/government/news/iran-uk-responds-to-us-airstrike-on-military- commander-in-iraq (last visited 21 May 2021) 227 Statement by Foreign Ministry Spokespoerson Geng Shuang, Press Conference on 3 January 2020, URL: https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2511_665403/t1729508.sht ml (last visited 21 May 2021) 228 Tweet by Foreign Minister of Cuba on 3 January 2020, URL: https://twitter.com/BrunoRguezP/status/1213246491780886529 (last visited 21 May 2021) 229 Statement by Lebanon’s Foreign Ministry, reported in Lebanon condemns Soleimani kiliing, hopes for no repercussions, Reuters, 3 January 2020, URL: https://www.reuters.com/article/us-iraq- security-blast-lebanon/lebanon-condemns-soleimani-killing-hopes-for-no-repercussions- idUSKBN1Z218R (last visited 21 May 2021) 230 Quote of Malaysia’s Prime Minister in Zehra Nur Duz, ’Soleimani killing illegal, immoral’: Malaysian premier, Anadolu Agency, January 7 2020, URL: https://www.aa.com.tr/en/asia- pacific/-soleimani-killing-illegal-immoral-malaysian-premier/1695288 (last visited 21 May 2021) 231 Press release on Foreign Minister Sergey Lavrov’s relephone conversation with US Secretary of State Mike Pompeo, January 3 2020, URL: https://www.mid.ru/en/foreign_policy/news/- /asset_publisher/cKNonkJE02Bw/content/id/3989636 (last visited 21 May 2021) 232 Mehrnusch Anssari & Benjamin Nußberger, Compilation of States’ reactions to U.S. and Iranian Uses of Force in Iraq in January 2020, Just Security, January 22 2020, URL: https://www.justsecurity.org/68173/compilation-of-states-reactions-to-u-s-and-iranian-uses-of- force-in-iraq-in-january-2020/#StatesEndorseIranStrike (last visited 21 May 2021) 233 Ibid.

criticism in the UNSC, but also received support. No actual conclusion as to the legality of anticipatory self-defence was reached. A few years later, Israel, another state which consistently has maintained a right to self-defence against imminent attacks, acted accordingly by striking Egyptian airfields as it sensed an attack towards itself was imminent. Israel argued it was entitled to act anticipatory, and the acts were never condemned by the UNSC. In 1981, Israel destroyed a not yet fully developed nuclear reactor inside Iraq fearing it would be used to produce WMD. This was a clear-cut case of pre- emption seeing how the reactor was not even operational. Israel argued that the reactor posed an imminent threat and that its actions was justified. In this case, the action was condemned by the UNSC and led to a discussion regarding the legality of anticipatory action, dividing the Council. Iraq together with some other states argued self-defence required an actual armed attack, while the UK and others argued the attack had to be imminent. No consensus as to the legality of anticipatory self-defence was reached. Following 9/11, the US claimed a right to self-defence as it invaded Afghanistan. The two UNSC resolutions passed in September following the terrorist attacks recognized the right to inherent self-defence, thus indirectly called the attacks “armed attacks” as in the context of Article 51 of the UN Charter since armed attacks are the requirement to active the self-defence right. The UNSC would probably also have permitted the use of force under UN Charter Chapter VII, as they described its “readiness to take all necessary steps to respond to the terrorist attacks”. The support from the international community for the US action was basically unanimous. Even though the legal argumentation for the following invasion of Iraq in 2003 to some extent was based on different UNSC resolutions (exclusively by the UK and Australia), the US also argued self-defence. This time however the support from the international community was very limited. The next to last case described in this thesis is one that has received a lot less public attention. Israel, as in the 1981 attack, acted pre-emptively by bombing a suspected nuclear reactor inside Syria. This time there were almost no reaction from the international community. This might be due in part to Syria downplaying the incident, and most certainly also since there is a fear of the consequences to national security of states that WMD in the wrong hands could pose. The killing of Qasem Soleimani was initially explained by the Trump administration as self-defence against an imminent attack. As part of US policy, the imminence-requirement is under constant reconfiguration. The action taken can be seen as an act of pre-emptive nature. In the letter to the UNSC the legal justification was a series of armed attacks by Iran. There is nothing in the letter mentioning an imminent or ongoing armed attack. Reading the letter to the UNSC well willingly, the reference to previous attacks and threats could be understood as evidence of future attacks to come. If read by the exact wording of the letter, the conclusion will be the strike was a reprisal. The international reactions showed a divide in opinions regarding the legality of the strike. A

majority of states did not comment at all or did so without explicit reference to the legality of the actions taken.

6 Conclusion

The right to self-defence in the UN Charter is well established, but the scope of such a right is under constant change through customary international law. As stated by the ICJ, developments in international law can be considered when interpreting the right to self-defence and should thus leave an opening for other interpretations than those dominating at the time of the signing. Article 51 refers to states “inherent right” of self-defence, which is a reference to states right to self-defence in customary law. Previous to the UN Charter, the requirements stipulated in the Caroline Case was considered the dominating view on self- defence practice, which allowed force in self-defence when an attack is imminent. The view that self-defence can be used when faced with an imminent threat today, following the signing if the Charter, is supported by a majority of international actors. In the Secretary-General Report In Larger Freedom234 it is stated that “[i]mminent threats are fully covered by Article 51, which safeguards the inherent right of sovereign States to defend themselves against armed attack. Lawyers have long recognized that this covers an imminent attack as well as one that has already happened.”235 It is also common view that the topic of this thesis, pre-emptive self-defence, can be used when granted by the UNSC. There is however a deep divide in opinion as to the permissibility of pre-emptive action by individual states. The US implemented pre-emptive self-defence in their 2002 NSS, arguing that such action could be required in order to meet the threats of today. Both before and after the terrorist attacks of 9/11, states and writers have argued the necessity of such an expansion of the right to self-defence following the emerge of new threats. Judge Higgins stated in 1994 that the move into what she called a “nuclear age” required a reading of the provisions of self-defence in a way that did not require states to accept its fate before defending itself.236 It is a fact that all forms of self-defence by its nature contains some element of anticipatory action. If, as would be required by a completely literal reading of Article 51, self- defence is employed after an actual armed attack has been completed, such action would require the intelligence of further attacks to come. If not, the self-defence would in fact be reprisals since the damage is already done. The logic behind limiting self-defence to such an extent that it is only applicable when an attack is

234 Report of the Security General, In Larger Freedom: Towards Development, Security and Human Rights for All, A/59/2995 235 Ibid, para 124 236 Higgins, 1994, p. 242

already completed, and further attacks are to come, can perhaps be understandable following two world wars in which regular warfare with tanks, planes and military divisions were the primary use of force. It does not make any sense though when states face total annihilation from the first strike. Sir Christopher Greenwood articulated this reasoning concerning WMD by stating that “the risk imposed upon a State by waiting until that attack actually takes place compounded by the impossibility for that State to afford its population any effective protection once the attack has been launched, mean that such an attack can reasonably be treated as imminent in circumstances where an attack by conventional means would not be so regarded”.237 There are however proponents of a literal reading of Article 51, such as Ian Brownlie238, who fears any divergence from a purely literal interpretation of the provision could lead to a devaluation of the use of the UNSC when faced with future threats, and a weakening of the prohibition of the use of force in Article 2(4). Even Brownlie, in 1963, recognized though there are instances when a state may resort to force in self-defence prior to an actual attack and, envisioning the use of long-range missiles, stated that “the difference between attack and imminent attack may now be negligible”.239 Since the right to self-defence hinges on the occurrence of an “armed attack”, imminent or completed, a definition of the scope of such an attack would be required in order to set a fixed perimeter of the legality of force in self-defence. There exists no such exact definition though. What information can be gathered is that an armed attack can be attributed to a state both through a direct attack by the regular forces of that state, and by an indirect attack where a state sends or sponsors irregulars in a substantial way, as put forth by the ICJ in the Nicaragua Case. It is also stated by the ICJ that the scope of the attack, the level of force used, is a determining factor. It was also made clear by UNSC Resolution 1373, which invoked Chapter VII of the UN Charter as a response to 9/11, that attacks by non-state actors can be considered armed attacks that grant states the right to self-defence. 9/11 showed the threat now posed by terrorist organizations such as Al- Qaeda in effect changes the way of which wars are fought. When faced with an adversary without a territory or a civilian population to protect, built on hatred and an outspoken goal of destruction, and without regard for international law, the playing field is not the same as that of 1945. The attacks will be delivered stealthy, and devastation can be spread with the press of a button. As was demonstrated by the lack of reactions of the Al-Kibar Facility bombings, it is clear states fear the possible outcome of dictators and rouge states developing nuclear capabilities. State practice, however, show states rarely invoke pre-emptive self-defence as legal argumentation. This does not mean the actual conduct was not of pre- emptive nature. All cases presented in this thesis contain some element of

237 Greenwood, 2003, p. 16 238 Brownlie, 1963, p. 278 239 Ibid, p. 368

anticipatory action. The bombing of Iraq’s Osirak reactor by Israel in 1981 was a clear act of pre-emptive force. The invasion of Iraq by the US in 2003 was pre- emptive (The states involved argued legal justification through UNSC resolutions, but the US also argued self-defence), likewise Israel’s bombing of Syria’s Al-Kibar Facility in 2007. The US action in the Cuban Missile Crisis in 1962 can at a minimum be seen as anticipatory action, and the invasion of Afghanistan in 2001 was in response to further imminent attacks by Al-Qaeda. The most recent case, the killing of Qasem Soleimani by the US on Iraqi territory, could be understood as an act of pre-emptive self-defence where the threat of future attacks is displayed by the acts of Iran in the past. The most reasonable conclusion though is that the strike in fact was a reprisal. The response from Iran to the strike could also be considered a reprisal. The reactions from the international community have varied from almost unison condemnation following the Osirak bombing, to widespread support for the invasion of Afghanistan. The backlash received when Invading Iraq might have been the reason the US moved away from an outspoken policy of pre-emptive action. This does not mean the threat states face, which the doctrine was originally developed to protect against, have disappeared. I just mean states will try to find new lines of argumentation in order to justify their pre-emptive actions. Should a majority of states feel the international legal system does not reflect the requirements to uphold the sovereign right of any nation to self-defence and thus the protection of its citizens, the risk is a complete rendering useless of the UN Charter and the UNSC. When invading Iraq, the diplomatic discussions trying to get explicit UNSC authorization continued for several month, without success. When Israel bombed the Ai-Kibar Facility four years after, it did so without UNSC Authorization. The international community stayed silent. The killing of Qasem Soleimani was also executed without prior consent from the UNSC. A development where states continue to by-pass the UNSC leads to a weakening of its authority. In order for norms to be considered part of customary international law, which is listed as international law according to Article 38(1) in the ICJ Statute, there needs to be “a general practice among states concerned that is accepted by them as law (opinion juris) among themselves”.240 Throughout this thesis the present writer has put forth actions and reactions of states and opinions of scholars to answer the question if the doctrine of pre-emptive self-defence has reached the status of customary international law. The line between anticipatory- and pre-emptive self-defence is fluid. Supporters of a wide doctrine of self- defence agree that an armed attack begins when the attack is imminent but disagree on how “imminent” should be interpreted. How “imminent” is interpreted is a key component in determining when an armed attack begins, and thus where the legal line is drawn. Even though cases involving pre-emptive self-defence dates back at least fifty years, it would be difficult to claim a consistent practice generally accepted as law. The cases examined shows states seldom use pre-emptive self-defence as legal

240 Report of the International Law Commission, Draft Conclusions on identification of customary international law, with commentaries, UN Doc. A/73/10, 2018

justification. The cases where uses of force in self-defence would be considered pre-emptive in nature, even though not argued as legal justification by the state, are also inconsistent. Thus, it is hard to reach a conclusion that either the “general practice” requirement, nor opinio juris, can be considered reached in a way that would make pre-emptive self-defence a norm part of customary international law. This conclusion is strengthened by the withdrawal of pre-emptive rhetoric’s of the US, which prior had been the doctrines biggest proponent, following the invasion of Iraq. A majority of the use of force employed by the US in the last two decades have been taken while in a continuing war against the Al-Qaeda terrorist organization thus categorized, at least according to themselves, as acts under Jus in bello, rather than Jus ad bellum. The strike killing Qassem Soleimani showcases the fear, as described above, that the present writer has regarding the future merit and relevance of the UNSC and the UN Charter if rules on self- defence is kept too narrow. A situation where states disregard current international law and bypass the UNSC is a situation of international anarchy, which it would be safe to assume is a development only welcomed by the bad guys.

References

Treaties and Conventions

Charter of the United Nations, 24 October 1945, 1 U.N.T.S. XVI

Statute of International Court of Justice, United Nations, 18 April 1946.

Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, Volume 1155.

Table of Cases

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, I.C.J. Reports 1986, p. 14

Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, I.C.J. Reports 1996, p. 226

Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, p. 161

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 168

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