Anticipatory Self Defence in International

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 that has previously attacked them. 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 the Israeli nation. This was different from the previous example of the U.S. attack on Libya as in that case there was a prior attack that could justify the American attack but in this case the anticipatory self-defence phenomenon is the only explanation for the line of action. There was a through international investigation done after the Israeli government presented their case and it was concluded after the investigation that the Iraqi were developing their nuclear power. The two other conclusions that were made was that the nuclear plants and program was nowhere near completion and would have needed another 15-18 months more before it would be able to call itself a nuclear power and that its intention of implementation was very hard to determine from the investigations.

The reaction of the UN towards the Israeli attack was that of apprehension and the UN supported Article 2 of the Charter and implemented the Security Council Resolution 487 and went on to declare that such an attack would bring tremendous insecurity and danger to the application of international peace. Furthermore, the SC Resolution 487 declared that the Israeli attack was completely against the principles of the UN Charter and was unacceptable in every way within the international community and went on to warn the Israelis to abstain from similar attacks in the future.

The discussions on the attack did not end there. Numerous international lawyers, researchers and even the ICJ have given negative responses to the Israeli attack on Iraq judging it to be unjustifiable and a breach to international security. McCormack, in his study, has explained the reaction of the international community as the demand for completely abandoning article 51 of the charter and all its justifications in order to declare the Israeli attack utterly illegal or to justify the attack under the umbrella of the concept of anticipatory self-defence. Dinstein, however, in his study, justifies the action of the Israeli government by saying that line of attack taken up by the Israelis was under the direct situation of tension and conflict that existed between the two nations: Israel and Iraq at the time. This is one of the main reasons that Dinstein in his study says that the attack on Osiraq was not under the umbrella of the international law or UN Charter because the situation of an on-going war cannot be ignored and if the situation is ignored then the attack is in no way in accordance to any international jurisdiction or Article 51 of the UN Charter. (A2)

The truth of the matter remains this: the UN has been ineffective in coming to a solid conclusion on the need, context or justification of the ASD phenomenon and the examples mentioned above are signifying this fact. Even though the Israeli attack was judged to be illegal, there was no judgment made on the ASD phenomenon and its rash usage and implementation. Furthermore, the instance of the U.S. attack was a reaction of prior bombing, yet neither ICJ nor the SC made any attempts to legalize or prohibit the action. The ICJ has worked fruitlessly to conclude some sort of jurisdiction or authenticity to the ASD phenomenon as it has not been presented with any real or practical situation on the issue and has mainly relied on the decision, input and explanation of the UN Charter in order to present any view on the concept.

Understanding the limitations of anticipatory Self-Defence

One of the other debates that have revolved around the anticipatory self-defence phenomenon has been the context and extent to which it can be used in the international jurisdiction. One of the most recent events that have escalated this debate into the forefront has been the Operation Iraqi Freedom and the subsequent demands of the American government to make changes in the existing structure of the international outlook. Throughout history the two aspects i.e. The requirement of self-defensive tactics and the likelihood of an armed threat have gone hand in determining or justifying ASD. One of the British researches has highlighted that "if an attack is judged to be imminent, then the argument is more likely to be accepted that an anticipatory right of self-defence arises." Jennings (1996), in his study, adamantly supports this conclusion and goes on to say that it seems illogical, unnecessary and brainless for a state to wait for an obvious attack to happen before it can start defending itself. Dinstein takes this one step further and says that "it would be absurd to require that the defending State should sustain and absorb a devastating (perhaps a fatal) blow, only to prove an immaculate conception of self-defence."

The ASD format today is very different from what it was a couple of decades ago. The main reason behind this is that the threats that exist today are far more intricate, established and superior to any threats that were present before. This, furthermore, changes and complicates the whole concept of the nearness of an attack. The bio-terrorism, terrorism, nuclear, atomic, WMD and similar threats are proof of how complicated the issue of ASD is in today's world. What makes these threats even more treacherous is that they are extremely hard to counter, identify or predict. This is one of the main reasons why, in the aftermath of the 9/11 attack, the American government is forcing the international jurisdiction and the UN to change the perception and concept of the likelihood of threat with the changing nature of threats. The fact of the matter though, one that the American government acknowledges as well, is that this approach could be extremely devastating in the long run and leaves the international laws completely open to violation and manipulation.

Rivkin (2002) is one of the many researchers who feel that if the concept of anticipatory self-defence is used or implemented too loosely then the states can very easily manipulate any attack that they make under the umbrella of ASD. Many researchers like Mary O'Connell fear that if this happens then numerous states will find an excuse to attack the state they are in; like Pakistan and India or North and South Korea or Iraq and Kuwait. This is why most of the international community, in general, and Europe, in particular, are reluctant to help the U.S. In their endeavor to change the perception or context under which self-defensive attacks can be made. Also, the U.S. itself realizes that drafting a new structure or perception would be extremely difficult even if they get support for it because of the innumerable factors that have developed in the modern era.

One of the reasons that the American government cannot find avid support in their attempt to change the context of the likelihood of an attack is because most of the international community, especially after the Iraq War, feels that this would only help the U.S. In forming a blatant form American unilateralism within the global community. This opinion and outlook of the international community has been devastating even after the war is essentially over because it has caused distances and differences between the American government, some UN Security Council members as well as certain European Union members. These differences have made the whole process of trying to extend or amend the ASD phenomenon even more difficult and negatively perceived.

The impact of Article 51 of the UN Charter

One of the main focuses for discussions and arguments over the years has been whether the structure and fragments of the UN Charter support or weaken the concept of ASD. There are many who believe that Article 51 allows states the chance to exercise the birthright to defend themselves through an offensive line of self-defensive attack. There are others, of course, who view UN as the sole implementation and enforcement of the traditional laws and regulations which eradicates the concept of ASD.

The exact words of the Article 51 explain that "nothing in the present Charter shall impair the inherent right" (United Nations Charter) which simply means that the traditional laws and regulations will persist through time without losing their authority after any amendments are made. The confirmation of the real authority and priority lying with the traditional laws was accepted worldwide and was practically implemented by the International Court of Justice in the instance of the Nicaragua situation. The ICJ was reported to have confirmed numerous things amongst which was the declaration that "the Charter itself testifies to the existence of the right of collective self-defence in customary international law." The ICJ further declared and that "the exception to the prohibition of force constituted by the right of individual or collective self-defence [is] already a matter of customary international law."

Despite the fact that there was no clear cut proclamation on the concept of ASD made by the ICJ in this case, the underlying factor is that they declared that the structure of international law put forward by Webster, which recognized the existence and need of ASD, was going to stay legitimate and real in all decisions concerning international legislations. So, even if Article 51 prohibits the right of ASD for the states, the ASD phenomenon would still be promoted in the traditional format of international law and under the regulations suggested in the Caroline case. The Caroline case and the elements presented in it have been used as the backbone for making several decisions on the issue of ASD by the Security Council over the years. Oppenheim, in his writing, the International Law, explains that the actions of the nation states from the beginning of the UN and the establishment of its Charter is proof that the already established international laws as well as the amendments and additions presented in the Charter exists hand in the global community today.

The complete history of the application of UN Charter on Anticipatory Self-defence

The initial years of the UN were clearly defined to work for keeping peace as security within the international community and disallow any state to intend or cause to bring about the physical, emotional and asset destruction that was witnessed in the 2nd World War. The UN, as of January 1, 1942, was made up of 26 countries that gathered in Washington D.C. To sign a collective affirmation of the existence of the UN. They started working on peace and security theories through meetings at the Dumbarton Oak from August 21 to October 7, 1944. It was here that the first draft against the implementation of aggression was firmly disallowed and made illegal except for in two situations: one, where the states jointly felt a breach of security (Article 42) and two, where the state was provoked to react with aggression i.e. self-defence (Article 51). In this paper we will only be looking at the latter exception.

The exact words in which the second exception is defined in the UN Charter are that self-defence is "the inherent right of individual or collective self-defence 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." This is a confirmation of the existence of the phenomenon of self-defence as it was mentioned in the Caroline case. However, the real question here is when does the right to act aggressively on self-defence begin and is it purely dependent upon the actual imminence of an armed attack in application?

Numerous researchers have explained or used the incidence of "armed attack" in line with the restricted time that a state has to respond to an aggressive strike. One of the ways that the American law administrators and judges have shown dissatisfaction on the attitude of the American government to not act more aggressively in self-defence tactics and protect the American citizens against terrorists strikes has been to encourage the omissions of the law of non-intervention.

It was nearly two decades ago that Dr. Polebaum demanded an extension and explanation of Article 51, in one of her critiques, that would incorporate the phenomenon of ASD under the recent threats of nuclear, atomic or bio-terrorists capabilities. She also went out to say, under the elements presented in the Caroline case, that the addition of these powers should have different interpretations of what the time restriction was for a state to respond to an imminent attack though aggressive self-defensive strikes.

She said that Article 51 should include that war should be avoided and disallowed under all conditions until and unless the proximity of its occurrence is inevitable. She further adds that the existence of ASD should be directly balanced with the level of the incitement. She explains that this is "alternatively as either inflicting no more damage than that inflicted by the initial injury of the offending state, or as remaining within the confines of moral notions of human rights." She says that this extension or explanation was necessary because the UN was structured to be an organization that would clearly prohibit and protect certain rights of humans and states. Furthermore, she says if article 51 allows the states to have the birthright of self-defensives strategies and its does not clearly eradicate the reality of ASD strikes then the belief that the phenomenon does exist within the UN Charter would be wrong and misleading..

The one fact that has been written explicitly in the UN charter Article 51 is that the armed strike has to actually take place which has been understood as when the "armed attack has begun or is about to begin." The incidence and cases of Nicaragua and the Corfu are examples where the UN legislation has been able to explain how the birthright of the right of self-defence works. And yet, there is no official documentation in the Charter to thoroughly explain the right of self-defence and most state have to rely on a very narrow definition.

In the case of Nicaragua the actual existence of an armed strike dealt with when the strike had begun. The United Nations' Definition of Aggression in this scenario did not deal with the likelihood of the occurrence of an attack; but was the backbone behind underlining the elements of an armed strike as well as the Declaration on Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations. The ICJ decided that the right of self-defence could not be exercised until an actually physical strike took place, which in the case of the Nicaragua attack meant that the trade and storage of the arms to the El Salvador rebels by Nicaragua did not serve or form a strong enough purpose or reason for a self-defensive strike.

The fact of the matter is this: historically speaking, many states have acted upon their right of self-defence by anticipating a strike and striking first; even though the UN has not really defined the right of the states to anticipate self-defence within a time restriction of the actual attack. The Caroline case lays the foundation for this and the right of ASD strikes mainly depends upon the collection of concrete evidence of an attack being launched.

Even though the Caroline case has been believed to lay down the foundation of the existence of ASD, the truth is that there is very little leverage given to the states under the elements of the Caroline case. One of the situations that have been declared as an obvious self-defensive action has been the 1967 Six-Days War between the neighboring Arab states and Israel. The Arab states had for a while stated that they were working together in an alliance to attack Israel and Israel reacted by carrying out an armed attack on the Egyptian airfields and called it ASD as they claimed that the Arab states were planning to attack them. However, even though the evidence is backed up by authentic facts, this war was perceived as based more on aggression then the right of self-defence. The logic behind this was that Israel wanted to attack first in order to gain an advantage in the unexpected, tactical and infrastructure departments. Technically, the war had already begun if it hadn't under the international definition of war as the initiation of war is merely based on military and arms superiority.

The incidence of the 1986 American bombing of Tripoli was not in accordance to any of the inevitability and essential elements of self-defence that had been underlined in the Caroline case. The view of the international community was harsh and unsupportive towards this event, so much so that they believed this act to be merely based on revenge for the deaths of U.S. troops in the Berlin nightclub as opposed to self-defence. The general view was that the American government wanted to send a verbally strong and aggressive message to Libya in order to halt their advocacy towards the advent of terrorism instead of waging war against them. Hence, trying to define or recognize the existence of ASD in such a situation where the emotions led a state to react aggressively in retribution is a complete waste of time.

The 1981 Osiraq nuclear strike in Iraq is another popularly cited example of self-defence. It is also the intriguing of all the examples of ASD because of the evidence provided by Israel. The Israeli government was quick to put forward the statements of the Iraqi government to develop their nuclear industry and to use their nuclear powers primarily against Israel. There are some researchers who believe that this served as a good enough reason and a rational logic behind the validation of the attack. However, the reaction of the international community and the UN Security Council was unsupportive and critical of the action. The subsequent actions of the Iraqi government and troops during the Gulf War of 1991 showed that the Israeli attack was based on concrete evidence. However, the international community and the UNSC still claims that the Israeli government was wrong to attack as their foundation or logic behind the relevancy and inevitability of the attack from Iraq was not definite.

The result of all these cases basically boils down to the fact that the phenomenon of ASD can be defended and sustained but only if the situation is such that an armed strike has been made or there is solid and definite evidence of the existence of the occurrence of an armed strike. The reason that the international community and the UNSC was critical towards the attacks on Osiraq is because upon investigation they found out that even though Iraq was building up its nuclear industry, the proximity of the nuclear attack on Israel was at least a year or two away because of the progress that Iraq had made in the sector. The UNSC believed that Israel could have brought this fact to their attention and let them deal with through the international legislature. The harsh reality that many do not want to deal with is the fact that the ASD phenomenon has been and can be very easily manipulated into an umbrella to launch attacks based purely on personal endeavors and advantages.

Many researchers feel that the changes or alterations that are being demanded in the principles of self-defence are absolutely unnecessary. They feel that the definitions and principles formed initially are more than appropriate even today. These laws contemplate and include the phenomenon of ASD and explicitly acknowledge that certain states have the upper hand in certain situations to inflict a sense of danger in other states. Furthermore these laws provide appropriate steps that can be taken in such situations. One of the steps that these laws put forward are strict and confined definitions of the self-defence phenomenon under which the states can be forced or watched into draining all of their choices of attack though the involvement of an international organization (like the UN) based purely upon all the state's activities that could be a cause for danger or destruction. Nevertheless, it is hard to ignore that none of the reason and rationales provided are realistic or internationally accepted. This is one of the things the current American government under Bush is trying hard to enforce a flexible notion of the relevancy and proximity of a self-defensive attack i.e. ones based purely on the possession of resources of WMDs which could drastically change the whole perception of the international law.

The general restrictions on use of force

The ban on the use of military force is established by Article 2 of the United Nations Charter, and is understood to have only certain explicit exceptions: 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."

There are merely two situations that are mentioned in the UN Charter that are outside the illegality of aggression or armed strike. The first is the right of the states to individually or jointly carry out self-defensive maneuvers and strike under the ruling of Article 51. The second can be observed under the ruling of the UN Charter Chapter VII where the Security Council has the authority to use aggression or influence for the maintenance of peace:

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 Security Council 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 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."

The two aforementioned extracts shows that the main intention of the Charter regarding laws against aggression or attacks was very widespread with only restricted circumstantial exemptions. Many researchers have not only concluded this after analyzing the Charter as a whole but also the background that led to its formulation structures. However there is another group of researchers who say that the bans on aggressions and strikes that are highlighted in Article 2 of the Charter are not very vast, in fact, they highlight that this article mainly prohibits the use of aggression for the territorial, economic or political gain and does not include the concept of ASD nor the manipulative intention of the attack.

One of the best examples of this is found in the research done by Professor Anthony D'Amato on the 1981 Israel attack on Osiraq in Iraq. The established facts of the attack are that Israel wanted to stop the build-up of the nuclear industry in Iraq and simultaneously ensure a durable security of the Israeli region. D'Amato's presents his opinion and says that the strike initiated by Israel did not have territorial gain as a motive nor did it have any political upper hand driving the thinking of the Israeli government hence it was not consistent or in accordance with the requirements of the United Nations. He says that the reaction of the international community and the UNSC to ban or declare the strike as illegal and against the elements presented by the UN was completely baseless because the Israeli government did not attack with the intention invade, which is banned in Article 2; they attacked with the intention to weaken which is not prohibited in the Charter.

Another example could by the Cuban Missile Crisis in 1962. Here the U.S. initiated a self-defensive maneuver around the state of Cuba by the name of a "defensive quarantine." They did this in reaction to their finding that the Soviets had placed certain highly dangerous missiles and ammunition on the island and then laid it defence under the umbrella of ASD saying that the Soviets had the intention and could use those missiles against the U.S. The point to note here is that ASD came into existence in this situation as the Soviets had not really attacked the U.S. territory but the U.S. "anticipated" an attack and hence justified their actions as security necessities. The UN Security Council as a result conducted discussions on the elements and criterion laid down by Webster to evaluate the steps taken by the American government as well as paid suitable attention to the authentication or justification of the American government's decisions under the light of the traditional rules and regulations that were internationally accepted. This shows that even though new amendments like Article 51 had been introduced for the specific purpose of dealing with the ASD phenomenon, the traditional laws and regulations were never pushed aside and were always considered relevant.

Discussion on this issue

As has already been highlighted above: the only exception in which the use of force from a state can be justified is through the concept of anticipatory self-defence regulation that has been narrowly defined and outlined in Article 51 of the UN Charter. This phenomenon or acceptance of aggression has been seen commonly not only in the final documentation of the Charter but throughout the history of events that have led to the need for the UN Charter as well as throughout the whole procedure of outlining the elements of the Charter. The international Court of Justice has also reportedly accepted and interpreted Article 51 in a similar way. However, the only question that has troubled many researchers and continues to do so is when the anticipatory self-defensive attack or strike can actually become justified i.e. what is the appropriate time limit within which ASD can be allowed. Some of the aspects of this query have been sorted out by the UN Security Council and the international legislations since the 9/11 attacks. The ruling that the Security Council needs to be informed of all threatening concerns instead of taking control in one's own hands was introduced after 9/11. This has taken away the right that states seemed to implement before, which was to attack first in the assumption of an imminent attack. Now the Security Council is required to carry out an investigation and then go about reducing the threat and/or danger.

In addition to restricting the state's liberty to react aggressively to an imminent strike, the states are now required to act in a liable and responsible manner on the adoption of application of any and all arms and retaliations. Instead of acting aggressively in retaliation to a strike the states are now expected and told to react in a lawful manner and let the UN and ICJ take relevant actions. Furthermore, the act of retaliation has been deemed illegal by the UN General Assembly and has ordered all members to avoid acting on those grounds as well as help other states to avoid acting in vengeance. So, in the light of recent events one can observe these additions in the ASD laws: one, the right to defend to fend off an ongoing attack (the point that has always existed); two, to avert the imminence of future strike from the same source; three, to transpose the situations that could lead to a strike; four, to go forward with self-defensive strategies that are equivalent to the level of destruction caused by the first attack; and five, to carry out self-defensive maneuvers on enemy turf if that is what the situation requires. The important thing to note here is that self-defensive strategies and maneuvers can be applied or made functional after some time has passed after the initial attack in order to plan and move forward with the strike.