Pre-Emptive Use of Force Against

¶ … PRE-EMPTIVE USE of FORCE AGAINST TERRORISM LAWFUL?

The objective of this work is to examine the issues of terrorism and whether the use of pre-emptive force against terrorism is lawful in nature. Toward this end this work will review an extensive base of literature which examines pre-emptive use of force against Terrorism and will examine this issue on an international basis.

The work of Narelle Thomas (2004) entitled: "The Use of Force and Pre-Emption: A Legitimate Practice Under the UN Charter?" states that Article 2(4) of the United Nations Charter has been described as "an unequivocal prohibition on the use of force. Pre-emptive use of force, therefore, would also seem to be prohibited." Thomas goes on to state that pre-emption "...brings theorists to the murky issue of self-defense -- an ill-defined, ambiguous and controversial exception to the blanket prohibition on the use of force, set out in Article 51 of the Charter and interpreted with reference to customary international law." (Thomas, 2004) it has been evident in development of international law that self-defense in the realm of municipal criminal law has involved a great deal of debate in regards to the legitimacy of self-defense that is pre-emptive in nature and that is "in the absence of an actual attack" and specifically in regards to international law. (Thomas, 2004) There are questions in relation to the "...source of such a right and the criteria, which would validate the use of force on this basis." (Thomas, 2004) Thomas notes that there is a specific reference to the right of a state to self-defense "under the Charter and customary international law and the interpretation of Article 51 giving rise to valid pre-emptory actions." (Thomas, 2004)

I. United Nations Charter & International Laws

The United Nations Charter preamble specifically refers to the "overall vision of the document including a reference to ensuring 'that armed force shall not be used save in the common interest'." (Thomas, 2004) it is stated that the Charter's "...operative text...contains an express prohibition against the use of force, embodied in the form of Article 2(4) ..." (Thomas, 2004) which reads as follows:

"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 manner inconsistent with the Purposes of the United Nations." (in Thomas, 2004)

Thomas states that these words "...amount to a 'comprehensive prohibition on the use of force,' which has been reaffirmed on a number of occasions in General Assembly resolutions, International Court of Justice (ICJ) decisions and states themselves." (2004) There are stated to be two exceptions to this "blanket prohibition" (Thomas, 2004). Those two exceptions are stated as follows:

(1) the right to individual or collective self-defense in response to an armed attack pursuant to Article 51 of the Charter; and (2) a member state's right to seek the Security Council's specific authorization for the use of force in accordance with Chapter VII of the Charter . (in: Thomas, 2004)

Article 51 of the Charter 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 UN -- until the Security Council has take measures necessary to maintain international peace and security." (Thomas, 2004)

Thomas states that this provision has been interpreted two ways with the first stated as a narrow interpretation that argues that the operation of Article 51 in regard to the language of the provision is limited to situation s where there is an actual 'armed attack' that has occurred. The second argument arises from the ambiguity in the charter and subsequent UN Security Council Resolutions enshrining the right to self-defense existing under Customary International Law. Thomas states that that "...requisite customary law elements for a valid exercise of the right to self-defense, derived from the Caroline Case include necessity, the presence of an imminent threat and proportionality of response.

Necessity requires that all alternative avenues of resolution have been exhausted and the use of forces is the last resort to deter attack. Such action must be in response to an imminent provocation and may not be remote in time from such threats. Convincing proof of an imminent attack must be present in order to justify an anticipatory use of force." (Maxon, 1977; Franck, 2001; and Gardner, 2003 in: Thomas, 2004)

II. The Debate

The work of Maxon (1995) relates that where there has been established necessity and the existence of an imminent threat "...a response in pre-emption of such a threat must be proportional. That is, the responding state uses no greater force than is necessary to prevent attack and avert danger posed by an aggressor." (Maxon, 1995) Thomas states of the debate that surrounds the use of pre-emptive force that Hugo Grotius (1925) stated the danger is one that must be "...immediate and imminent in point of time... But those who accept fear of any sort as justifying anticipatory slaying are themselves greatly deceived and deceive others." (cited in Thomas, 2004)

It was alternatively argued by Emmerich De Vattel that a nation has "...the right to prevent an injury where it sees itself threatened with one." (1916 as cited in Thomas, 2004) According to Thomas, international events including that of September 11, 2001, a terrorist attack on the United States have resulted in "...a need to wholly reassess the self-defense doctrine having due regard to the contemporary capabilities of adversaries and their apparent determination to achieve their goal." (Thomas, 2004 citing: an Address by Bush Administration National Security Advisor, Dr. Condoleezza Rice, Winston Lecture, 1 October 2002)

III. The War on Terrorism and Pre-emptive War

The work of Sarah Champion (2005) entitled: "Anticipatory (Pre-emptive) Self-defense: The Need for a Modern Approach" states that the use of military force "...is a valid customary international law norm and it is enshrined in the United Nations Charter." (Champion, 2005) the use of force however, is noted by Champion to be authorized "only...if it falls under one of two categories:

(1) self-defense; or (2) Security Council authorization. (Champion, 2005)

In order that a pre-emptive war be justified a state is required to provide "...reasonable proof that the action is necessary to the vital national security interests of the state, and that the act of aggression in self-defense is proportional, according to Charter principles. The threat imposed by an aggressor must be proven to be clear and imminent, direct, critical to the state facing disproportionate danger, and unable to be handled using peaceful alternatives." (Champion, 2005)

Indeed the work of Champion is in agreement with that of Thomas (2004) and held that is that according to the United Nations Charter "...to deem self-defense lawful requires that an attack has already been launched against a victim state. Examples of states acting pre-emptively in anticipatory self-defense have further elaborated on this legality, creating in some instances an international acceptance that in the case of an imminent attack, the necessity of a proportional assault in self-defense is lawful. However, the issue remains that the Charter, in order to deem an action as lawful self-defense, requires the existence of an armed attack on the victim state." (Champion, 2004) Yet, it is precisely this interpretation of what constitutes an armed attack that "...generates the most disagreement amongst the international law community." (Champion, 2005)

Champion (2005) states that the recent War on Terrorism provides an excellent example of how this specific article of the UN Charter can be difficult to interpret and that this highlights the need for "modernizing the internationally accepted norms and evolving the Charter's principles on self-defense in order to accommodate victim states." (Champion, 2005)

Champion relates that the 'War on Terrorism' refers specifically to the policies of President Bush immediately after the terrorist attacks of September 11th 2001, in which he declared that the United States would "...make no distinction between the terrorists who committed these acts and those who harbor them." (2005) Champion states that this policy was immediately applied when Afghanistan was invaded at the beginning of October 2001 "...when the Taliban controlled government of Afghanistan refused to hand over the well-known al-Qaida terrorist leader Osama bin Laden. This new United States policy inferred that any nation refusing to cooperate with American efforts to attack terrorists would be considered an enemy state. On September 20, in a televised address, Bush summed up this policy with the words, "Every nation, in every region, now has a decision to make. Either you are with us, or you are with the terrorists." (Champion, 2005)

According to Champion (2005) this doctrine is "...argued to be contrary to the classical concept of a just war which requires, among other stipulations, that war must only be conducted in self-defense. Supporters of the doctrine counter that the state-sponsorship of terrorism is in itself a first act of war, and that the U.S. is acting justly when it answers with military actions." (Champion, 2005)

The work of Daniel Ryan (2009) entitled: "The Bush doctrine of Preemption Under President Obama" states that in September 2002 the Bush administration "clarified its doctrine of preemption in the National Security Strategy" and stated as follows:

"The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. 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: