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Of course, the timeline for the defensive line of attack or its initiation during the armed assault is also a determinant of whether the line of attack can be called defensive or a new attack. A good example of this could have been 9/11 where the U.S. government could have reacted with an armed line of self-defensive attacks if they feared that the first attack on the World trade centre would be followed by a series of similar attacks elsewhere. In other words, the anticipatory self-defence is perhaps most useful when there is clear cut evidence of a series of attacks. The downside, of course, is that if the state launches a defensive attack and is not able to present concrete evidence for it then that state would have to face serious repercussions from the international law and hamper its overall image in the international community. The important thing to note here is that the international community supports a defensive line of attack if the situation is that a state is under a series of attacks as previously mentioned.
The support of the international community for anticipatory self-defence on the part of the U.S. after 9/11 attacks was obvious as one saw the Security Council confirmed that the American government was under circumstances where the self-defence attacks were a necessity and a right for protection against future attacks. Furthermore, the U.S. line of self-defence was avidly supported by nineteen of the NATO members who saw the attack as a trigger or instigation to launch a joined self-defensive attack, which was in line with NATO's conditions of attacks. The international community generally agreed that the line of self-defensive attacks launched by the United States and United Kingdom against Afghanistan were merely in anticipation and prevention of future attacks from the country and its terrorists groups.
The main backup of the launch of the Operation Enduring Freedom was the history of attacks made on American soil that had been linked to Bin Laden. These attacks included the 1993 attacks on the World Trade Centre, the embassy bombings in Nairobi and Kenya launched in 1998, the assault made in 2000 on the U.S.S. Cole in Yemen, as well as the 9/11 attacks made on the World Trade Centre and Pentagon. Alongside these historical evidences, the U.S. And the European authorities captured a number of group members that confessed to more deliberate attacks and bombings; the U.S. troops already in Afghanistan also found recorded video tapes from the region that confirmed the possibility of future attacks. All this was submitted to NATO and it was decided almost in unison that the facts were more than convincing that the anticipatory self- defence was in order.
Although the reactions of the U.S. government have been generally supported, the ongoing operation has received a large amount of criticism when it comes to the percentage of civilian casualties that have resulted from the numerous attacks. The support given by the Security Council has, however, allowed the U.S. government to face this criticism and still defend their right to anticipatory line of defensive attacks on Afghanistan and Iraq. In contradiction to that, however, some experts see that the International Law and Jurisdictions are avidly opposed to the concept of anticipatory self-defence and armed self-defensive attacks. The international law strongly disallows states to launch an attack and call it self-defence if they haven't been attacked first; according to the international law, no theoretical attack can be defended against with an armed attack, even if the theoretical attack includes the use of weapons of mass destruction.
These scholars believe that the application of anticipatory self-defence had generally existed even before its certification in the U.N. Charter. Brownlie, in his study, highlighted that the "customary law permitted anticipatory action in face of imminent danger." He goes on to say that "there can be little doubt that the right of self-preservation and the doctrine of necessity comprehended anticipatory action." This approach or outlook has been verified by numerous prior cases like the Caroline case already mentioned before. Numerous publicists and the normal inclinations and applications of the nations-states also show that the viewpoint mentioned above is rational. The important thing to note here, however, is the outlook towards the concept of anticipatory self-defence before the 2nd world war and how the events of the first half of the 20th century had shaped the openness and outlook towards the ASD principle.
The concept of ASD still faces serious discussions on whether its existence is necessary and whether its certification in the U.N. Charter as Article 51 of the UN Charter under conditions of what constitutes an attack has eliminated the concept altogether or made it real and stronger. Dinstein, in his study, says that the certification of the ASD concept in the U.N. Charter gives states the right to counter attack an attack that hasn't yet occurred in reality and that the application of such a right can instigate the use of aggression in a destructive, negative and precarious way.
He further goes on to highlight that Article 51 does not anywhere mention the use of ASD; in fact, what the article allows a state to do is analyze whether there is a threat of attack, gather concrete evidence and present it in front of the Security Council and then make all the necessary military and security preparations needed.
It is generally believed that the existence of the anticipatory self-defensive attacks and actions are all thoroughly and fundamentally based on the existence of evidence of potential attack and relativity of the attack. Brownlie, in his study, has highlighted that considering this, there are only a few number of cases where the counter-attack is used in cases where the first attack was obvious and could have resulted in havoc and destruction. However, he also goes on to say, that in cases where there is no real evidence and only a supposition of a likely attack, than instigating a state into conflict can completely blow out the whole basis that the anticipatory self-defence is structured on. Of course, the anticipatory defence is not just built around the actual imminence of the attack but also the intention behind the attack and both these facts cannot be concretely distinguished or declared by a state which makes the anticipatory self-defence attack a very complicated and controversial phenomenon.
An small illustration of the use of Anticipatory Self-Defence
Looking at the events that have taken place since the formation of the United Nations, there are two anticipatory self-defence strikes that stand out: Since the 1986 U.S. strike on Libya and the 1981 Israeli strike on Iraq. The first U.S. attack on Libya was in reaction to the bombing done on a night club in Berlin which was a common hangout for most of the members of the armed forces. The bombing resulted in 200 serious injuries and 3 deaths. So it was on 15 April 1986, ten days after the bombing on American soil, when the American airplanes bombarded two different vicinities of Libya: two areas near the Benghazi region and three areas in the Tripoli region on the basis of the concept of the anticipatory self-defence and Article 51 of the UN Charter. The conflict did not end there as we observe decades of apprehension between the two states on the suspicion that Libya intended to conduct more terrorist strikes on the American soil. The justification that the U.S. government gave was under the umbrella of the anticipation of future threats from Libya as well as the fact that these preventative strikes would help in reducing or keeping a check on the fearful and villainous administration of Colonel Qaddafi; this representation was two-fold as the U.S. would not only gain the justification of their attack on the state, they would in turn be helping the citizens of the state to live a safer life. There were numerous discussions conducted after this attack in the U.N. Security Council but none of them were able to decide a certain approach to the situation and the International Court of Justice could not enforce or implement a single line of action suggested by the Council. There is, however, very little argument on the chain of events that led to the reaction of the U.S. And the justifications given thereof.
The other anticipatory self-defence situation or strike that the UN had to deal within the earlier years was on 7 June 1981 when Israel attacked Iraq. The attack was a 14-plane air raid on the Osiraq region near an incomplete nuclear plant that was being built under the assistance of France. The air raid was highly successful as none of the airplanes had been identified by the Iraqis and returned without a scratch. The justification that the Israeli government gave was again of self-defence in anticipation of an attack from one of the nuclear programs of the Iraqi government and how they were going to use that nuclear program against…[continue]
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