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Pre-Emptive Self-Defence

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Pre-Emptive Self-Defence 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 3 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 5 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 7 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 .........................................................................................................................
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