IRPG 842 The Politics of International Law
“In an age of international terrorism, the law on self-defence needs to be expanded to include the right to pre-emptive self-defence.” An evaluation of arguments both for and against this proposition.
On September 11, the terrorist attacks on American soil reached an unprecedented level of damage. Although terrorism is not a new phenomenon, by effectively targeting the US as the major global power, international terrorism reached the top of the global agenda. In order to fight terrorism states like the USA or Israel refer to the right of self-defence, and expand it to include anticipatory action (Kastenberg 2000, pp. 111-115). Following the idea of prevention, problems have to be addressed before they can become imminent, grounding on the possibility of an emerging threat. Contrary to prevention, the strategy of pre-emption allows to act only when a threat is imminent, based on confirmed information of a future hostility (Freedman 2003, pp.105-108). Even though prevention definitely exceeds the purpose of international law, several academics and lawyers consider pre-emption as a justified form of self-defence (Luban 2004, pp. 212-214).
Nevertheless, this paper will argue against an expansion of international law to include an unrestricted doctrine of pre-emptive war in the legal conception of self-defence. The negative implications of pre-emption outbalance its benefits. In order to back this position arguments both for and against pre-emptive self-defence will be examined from a moral as well as practical point of view. After examining the nature of terrorist threats and current international law, this essay will focus on alternatives to and consequences of pre-emptive self-defence, before considering the limits of law and power in international relations.
Especially since the events of 9/11, international terrorism is considered as one of the main threats for the global community. One argument to bolster pre-emptive military action is that the new war against the unprecedented danger of terrorist strikes needs to be opposed by new international laws, giving nation states the necessary means at hand to defend themselves (Crawford 2002, p. 30). According to Donald Rumsfeld (2001, p. 1), “the only way to deal with the terrorist network is to take the battle to them.” If a new threat changes the circumstances in which previous security politics operated, international law has to consider those changes (Reisman 2003, p. 90). “The realities of modern warfare have decisively defeated” the traditional perception of war and render “a clear demarcation between combatant and non-combatant populations” impossible (Margolis 2004, p. 404). Moreover, terrorists cannot restrict themselves from applying extreme measures, outlawed in international law, “because they could not otherwise be a plausible match for the powers they mean to oppose” (Margolis 2004, p. 404). Guerrilla like tactics of hit and run and the missing constraints of conventional warfare are not appropriately covered by current international law (Münkler 2003, p. 7). Since law is the result of politics, “it often lags behind the innovations, leaving intervals of legal gap” before new laws prevail to close that breach (Reisman 2003, p. 82). The concept of pre-emptive self-defence is the only strategy left to fight terrorism successfully and should therefore be included in international law as soon as possible.
On the other hand, by taking a closer look to existing international law, it already is appropriate to deal with self-defence against terrorism (Franck 2001, pp. 841-842). Although article two of the UN Charter (1945, Art. 2.4) generally prohibits the use of force, its actual wording only bans force when directed “against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purpose of the United Nations.” Furthermore, article 51 does guarantee the states’ inherent right of individual self-defence (UN Charter 1945, Art. 51). As a matter of course this right of self-defence is understood as an exception to the prohibition of force, valid only when an armed attack occurs against this state.
However, lacking further elaboration both articles are open for further interpretation. “Under customary law, anticipatory self-defence is permissible when the threat of an armed attack is ‘imminent’” (Shah 2007, p. 100). Already in the 1980s the Nicaragua Court generally recognised, “that an armed attack could arise in other [various] ways, such as … armed groups” operating within states (Murphy 2002, p. 51). Without a binding definition of an armed attack (Baker 1987, p. 31-35), there is no reason why terrorist strikes cannot amount to an armed attack; even if conducted by non-state actors (Ruys & Verhoeven 2005, pp. 299-310). Consequently states are entitled to use force against terrorists, if acting in self-defence.
According to the Caroline incident in 1837, pre-emptive action is considered permissible if the necessity of self-defence does not leave any other means available (Dixon 2005, pp. 295-297). Hereby the rules of imminent threat, last resort and proportionally apply (Swarc 2007, p. 9). The burden of proof always lies with the state using force pre-emptively and the threshold is considerable high, but basically, current international law is highly appropriate to deal with international terrorism (Shah 2007, p. 126-127). Since even anticipatory self-defence is allowed under particular circumstances in individual cases, a general and distinct inclusion of pre-emptive self-defence is not necessary.