The greater the threat, the greater is the risk of inaction -- and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively." (cited in Ryan, 2009)
Ryan relates that the rule of anticipatory self-defense was described in letters exchanged between Britain's Lord Ashurton and U.S. secretary of state Daniel Webster in 1837 in an indicated involving the private U.S. ship Caroline that was destroyed by British forces when it was found to be providing aid to Canadian rebels who were fighting against the Crown. The diplomatic correspondence set to the British Ambassador and which protested the attack it was written by Webster that the "...anticipatory self-defense may be invoked only where the threat is imminent, proximate, and the use of force is necessary and proportional." (Ryan, 2009)
The anticipatory right self-defense was further upheld in the Tokyo Military Tribunal in ruling that a declaration of war by the Netherlands against Japan in December 1941 in response to Japan's stated intent to seize Dutch territories was a lawful recourse to anticipatory self-defense despite the absence of an armed attack on Dutch territory." (Ryan, 2009) There have been very few examples of lawful recourse to anticipatory self-defense however, since the U.N. Charter was adopted in 1946. In 1981 Israel claimed that an airstrike it committed on a nuclear reactors in Iraq was "an act of anticipatory self-defense in response to a nuclear threat..." And the attack was "strongly condemned." (Ryan, 2009)
Ryan (2009) relate that the International Court of Justice in the Nicaragua case "declined to consider the legality of preemptive self-defense, noting that "the lawfulness of a response to an imminent threat of armed force has not been raised." However, according to Ryan (2009) the U.N. legal opinion began its shift in 2004 "...when a report issued by a high-level panel on the legality of the preventive use of force noted that anticipatory self-defense would be lawful under Article 51 and Chapter VII of the Charter so long as the threat was imminent and the force was proportional." (Ryan, 2005)
The work of Vark (2004) entitled: "Terrorism and the Use of Force: From Defensive Reaction to Pre-Emptive Action?" states that the right of self-defense "...can be traced back to ancient times and since then it has been considered as an essential and inherent element of State sovereignty." Since all instruments restricting or prohibiting the use of force have "...explicitly or implicitly recognized such a right" the United Nations Charter "...did not create, but simply recognized the right of self-defense and subjected its exercise to certain limits." (Vark, 2004) Vark notes that Article 51 states as follows:
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security." (as cited in Vark, 2004)
IV. Analysis & Discussion
While there are undoubtedly times when states feel there is an imminent and immediate threat to its national security the guidelines and principles set out in the United Nations Charter and other supporting documents are quite clear. The Charter has no intention of impairing what is an inherent right to self-defense by a nation when an armed attack is launched against that Member of the United Nations however, that right is pending the action of the Security Council to restore and maintain peace and security. Members of the United Nations are instructed explicitly to report any self-defense actions taken to the U.N. Security Council immediately upon those actions being taken.
A pre-emptive attack or one that is launched in the absence of an armed-attack having first occurred is explicitly stated as a barred action on the part of U.N. Member States and this is evidence in all the literature reviewed in this analysis as well as in the opinions of scholars and other authorities cited in this study other than the speech of President Bush following the attacks of September 11, 2001. While there was an armed attack upon the United States, there was not however, a corresponding acknowledgement of action by any Al Qaida or Osama Bin Laden group or affiliated agency. Therefore, it is the opinion of this writer that the actions of the United States which were pre-emptive actions upon the nation of Iraq were actions that do not fall within the state principles and guidelines of the United Nations Charter.
A pre-emptive attack is an attack that is launched by one nation against another nation in the absence of an armed attack by the other nation upon the nation launched the pre-emptive attack. According to the United Nations Charter, other supporting documents and the scholars and authorities reviewed in this study such pre-emptive attacks do not fall within the guidelines or principles as stated in International Law.
Address by Bush Administration National Security Advisor, Dr. Condoleezza Rice, Winston Lecture, 1 October 2002; Sapiro, M. "Iraq: The Shifting Sands of Pre-emptive Self-Defense" (2003) 97 American Journal of International Law 599 at 599.
Caroline Case (1837) 2 Moore 409.
Champion, Sarah (2005) Anticipatory (Pre-emptive) Self-Defense: The Need for a Modern Approach. Online available at: http://www.usafa.edu/isme/JSCOPE05/Champion05.html
Franck, TM. (2001) "Editorial Comments: Terrorism and the Right of Self-Defense" 95 American Journal of International Law 839 at 842. Franck states this intuition is supported by the language of Article 51.
Gardner, RN. "Neither Bush nor the Jurisprudes" (2003) 97 American Journal of International Law 585.
Grotius, H De Jure Belli Ac Pacis Libri Tres (Francis W. Kelsey translation, 1925) 173.
Letter from Daniel Webster to Lord Ashburton (Aug. 6, 1842), in (1906) 2 John Bassett Moore, a Digest of International Law 412.
Maxon, RG. "Natures Eldest Law: A Survey of a Nations Right to Act in Self-Defense" (1995) Parameters Autumn, 55-68.