Term Paper: Anticipatory Self-Defense in International Law

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Anticipatory Self Defence in International Law

The concept of anticipatory self defence in international law has become more prominent and has grown to be a dominant topic of discussion in recent years. The attacks on American soil on September 11, 2001 can be said as the primary reason behind the growing importance of anticipatory self defence. The event saw the passenger airlines being hijacked and used to target the destruction of important and strategic New York and Washington buildings i.e. The World Trade Center and the Pentagon. It wasn't a surprise that the U.S. reacted with aggression and force by initiating the war on terror under the reign of President Bush. This war was launched against the territories and nations that were known to have high terrorists' factions or activities. Of course, this war wasn't launched blindly or quickly, instead they waited and initiated a full throttle investigation for which they got a lot of respect from the international community. The administration looked deep into the attacks before they concluded that the attacks on 9/11 were orchestrated by the terrorist group Al-Qaeda that had a history of antagonism towards the U.S. which gave them motive for the attacks. The Al-Qaeda group was traced back to their camps just outside the vicinity of Afghanistan. The U.S. government continued their investigation further and called upon foreign powers and allies for help in the investigation. The British government, on October 4th in the same year, carried out a research that showed that Al-Qaeda and the De Facto administration of Afghanistan worked or had really close relations.

Following this report, i.e. 3 days later on October 7th, the U.S. In cooperation with the U.K. initiated an attack on Afghanistan and called it: Operation Enduring Freedom. This operation was mainly an air attack with minimal land military. Before initiating this attack, however, the U.S. And U.K. informed the U.N. that they were conducting this self-defensive attack under the regulations of article 51 of the U.N. Charter. Article 51 states that aggression and force can be used as a self-defence tool against an armed assault.

The 9/11 was only the very first major attack that had been made on U.S. soil since the implementation of the U.N. Charter and article 51 had never been applied by the U.S. before so in affect the U.S. And the U.K. were not going against the rules by launching the attack on Afghanistan even if they didn't have concrete proof against the state or Al-Qaeda. This meant that they were not essentially going against international jurisdiction but actually using it to their benefit.

One of the aims of the operation was to eradicate any possible administrative or political threat that the U.S. government could potentially face by similar attacks. Hence, the initiation of the Enduring Freedom operation saw the initiation of other numerous proposals that may not have been as demonstrative as the attack on Afghanistan, a good example of this could be the planned invasion of Iraq. The logic and basis behind this invasion were that the Iraqi administration under the legislation of Ba'ath had continued to invest in the development of weapons of mass destruction which they could use, or supply for use to terrorist agencies, in the future against the U.S. Or other states, and hence it was in the best interest of everybody if this administration was taken down. One of the ways that the invasion was carried out was by sending more than 200,000 soldiers to attack, invade and overthrow or overtake the administration of the state.

The whole idea or logic behind the U.S. attack on Afghanistan and Iraq has been the theory of preventative self-defensive strategies: Attack before getting attacked. The interesting part here is that this particular theory of preventative self-defensive strategies is disallowed or illegal under the international law. The only condition under which a state is allowed to have armed defensive strategies is if they are under direct armed attack. There have been numerous studies and researches in the past that have shown the importance or the need of the legitimization of preventative self-defence strategies yet the United States, and numerous other states, have held a strong opposing stand on the issue because of reasons of national security as well as their national principles. So in essence, no state, including the U.S., has the authority to attack on the possibility of an armed attack on their territory and by doing so the U.S. is not helping strengthen their national security or their international image.

The various interpretations of the International Law on Anticipatory Self-Defence

In evaluating the Anticipatory Self-Defence, there are numerous concerns that can actually arise from the analysis; the first is if this phenomenon exists in theory and reality before its official mention in the U.N. Charter, the second is the accurate definition of the concept and the third is if the concept can actually survive as a standard or regulation after the analysis of the aims of U.N. Charter is conducted in order to understand any of these concerns, we have to first understand the conditions and circumstances that can lead to the viability or tolerance of anticipatory self-defence attacks.

The rule or general understanding when it comes to the anticipatory self-defence is one described aptly by Sir Humphrey Waldock who says that every state has the right to expect an attack and hence plan a self-defensive strategy but only "where there is convincing evidence not merely of threats and potential danger but of an attack being actually mounted, then an armed attack may be said to have begun to occur, though it has not passed the frontier." This is what is believed to be lawful and allowed by most of the nation states and jurisdictions nowadays. Take for instance the Nicaragua case where there was no official inquiry or complaint made to the court so that they could investigate the scenario and determine when the line of attack can be defended against by attacking first. The fact of the matter is this: the Salvadorian government was facing brutal attacks from the guerrilla armies and they feared that the weapons supply from the Nicaragua consignment was heavy enough to aid in the launching of an armed assault. The real question was not when the self-defensive attack could begin but whether a self-defence attack was indeed needed, if at all. No court of justice anywhere in the world has been able to decide when it is okay to give the green light for an armed self-defence attack, and the fact of the matter is that no court can ever truly decide a time for such a phenomenon. It is however generally understood, based on reason and common sense, that if a state is absolutely sure that it will be attacked then it need not wait for the actual attack to happen before it can launch a self-defensive attack.

Professor Dinstein, in his report, has described this phenomenon as "incipient self-defence." He defends this by explaining how easily the U.S. navy could have attacked the Japanese fleet on its way to the Pearl Harbor and prevented the whole attack and they didn't. Of course, his defence does not include whether the U.S. had a clear indication of the attack or whether having that clear indication matters.

Similarly, there have been events in the past where numerous attacks have been supported on the logic of attacking first in order to defend from an obvious attack even though the official regulation was not in place as it is now. According to Dinstein, a good example of this can be the Israeli attack on Egypt in 1967. Even though, at that time, the Israeli government said that they had concrete evidence that the Egyptian government was about to attack them and that the planning for the attack had begun; investigations later showed that they didn't have concrete evidence and mere suppositions. However, fact of the matter is that the 1967 Arab-Israeli war is not the most accurate example of an anticipatory self-defence launch.

It is noteworthy that most of the research done and conclusions made by Dinstein do not have practically concrete incidents to prove his theory. One of the more popular principles that many researchers have used has been the one outline in the Caroline doctrine of 1842. In this particular situation, both the U.S. And the U.K. governments agreed that the anticipatory self-defence was allowed and necessary on similar terms as are mentioned and underlined in the charter i.e. this defensive line of attack is allowed when "necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation." The attack or the imminence of it is what decides whether anticipatory self-defence can actually exist.

The anticipatory self-defence also includes protection from the repetition of a prior assault. So basically, anticipatory self-defence can be exercised through an analysis of past events i.e. A state can launch a defensive line of attack against another state… [END OF PREVIEW]

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