This article has been written by Dr Tamanna Khosla, a first year student of Lloyd college.

Every war when it comes, or before it comes, is represented not as a war but as an act of self-defense against a homicidal maniac.

__________________George Orwell.

INTRODUCTION

In view of the lingo used in Article 51, can it be said that a right of anticipatory or pre-emptive self-defence is available to a State? Anticipatory self-defence means use of force by a State to repulse an attacker before an actual attack has taken place. “Anticipatory” is a term that “refers to the ability to foresee consequences of some future action of state or non-state actors and take measures aimed at resisting those consequences

As per the strict interpretation of Article 51, the right of self-defence can be exercised against an actual armed attack. This, however, may cause practical problems, e.g. the use of modem weapons by a State may hardly give any wink to the other State to react. With the growing availability of ever more revolutionary nuclear, biological and chemical weapons capable of demolishing entire cities, of a nation, and with the development to delivery systems impenetrable to interception, no nation could seriously await an actual armed attack before acting to head it off.”

It has been contended that “Article 2(4) of the Charter requires Members to refrain not only from the use of force, but also from the threat of force. If States had to wait for an armed onslaught to occur, then maintenance of international peace and security could not take place.

It has been suggested that the notion of self-defence could be dilated to a right of “pre-emptive self-defence” which is also referred to as “preventive self-defence” enabling the use of force in order to defend against, or prevent possible attacks. It may, however, create a grave problem.

If the States are allowed to exercise the right of anticipatory or pre-emptive self-defence, there shall always be a likelihood to its misuse.

Professor Greenwood argues: The right of anticipatory self-defence is quite narrowly defined. Ever since the United Kingdom-US exchange in what has become known as the Caroline case in 1837-38
The scope of right of self-defence of a State is limited. The entitlement of States to resort to self-defence is subject to certain constraints. Some of these constraints are inherent in the very concept of self-defence. Other requirements are specified in Article 51.

The Caroline incident has put the right of self-defence in two core principles: necessity and proportionality. Necessity or pre requisite demands that the danger be “instant, overwhelming, leaving no choice of means, and no moment for deliberation”.

Proportionality or balance means that “nothing unreasonable or excessive” may be done because the act must be distinctly limited by the necessity causing it. These principles were widely used in international disputes and rapidly came to represent the customary law of self-defence.

Accordingly, Article 51 of the UN Charter incorporated the Caroline principles as pillars of the “inherent” state right of self-defence. Since 1945, States have continued to consider necessity and proportionality the defining parameters of appropriate self-defence.

In Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons,” the ICJ stated that “the submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of customary international law”.

It further divulges that “this dual condition applies equally to Article 51 of the Charter, whatever the means of force employed”.

On the use of nuclear weapons in self-defence, the ICJ made the following observations:

The proportionality principle may thus not in itself exclude the use of nuclear weapons in self-defence in all circumstances.

But at the same time, a use of force that is proportionate under the law of self-defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law.”

The ICJ finally concluded by stating that “.. however, in view of the current state of international law, and of the elements of fact at its disposal, the Court could not conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”.

                                                      II

FACTS OF PREEMPTIVE STRIKE

Here we can look at certain cases of preemptive strike.An abiding reality demonstrated by the terrorist attacks of September 11, 2001 was that non-state actors are capable of protruding extreme violence across the globe. The September 11 attackers were a variety of mortals who were trained and recruited across multiple states, who were taught and funded by a loose but sophisticated Al Qaeda network, and who then covertly acquired the means to unleash a vicious attack that within a matter of hours killed more than three thousand people, mostly civilians.This ability of non-state actors is particularly troubling in the context of their potential use of weapons of mass destruction (WMD). Although governments have possessed WMD for many decades, such weapons have rarely been used,because it would lead to worldwide condemnation .. Thus, were such a network able to obtain WMD-whether in the form of biological, chemical or nuclear weapons-there may be little incentive not to use them. The realities of the post-September 11 period led the Bush administration in 2002 to articulate, in very strong and public terms, a doctrine of “preemptive self-defense.” Among other things, the doctrine asserted an evolved right under international law for the United States to use military force “preemptively” against the threat posed by “rogue states” or terrorists who possess WMD.

III

 SCHOOLS OF THOUGHT AND PREEMPTIVE WAR

The present date attitudes of international lawyers or academics on the issue of preemptive self-defence tend to fall into four different schools of thought.

1.The Strict-Constructionist School :

This school begins with the proposition that Article 2(4) of the U.N. Charter contains a broad prohibition on the use of force. The term “use of force” in Article 2(4)-as opposed to the term “war,” as used in the Kellogg-Briand Pact of 1928 -reflected a desire to prohibit transnational armed conflicts generally, not just conflicts arising from a formal state of war. As such, this school emphasizes that Article 2(4) is “ best viewed as outlawing any transboundary use of military force, including force justified by reference to the various doctrines developed in the pre-Charter era of forcible self-help, reprisal, protection of nationaland humanitarian intervention.” The strict constructionist school acknowledges that the U.N. Charter provides two express exceptions to this broad prohibition. First, the Security Council may authorize a use of force under Chapter VII of the Charter, which would require an affirmative vote of nine of its fifteen Members and the concurrence or abstention of its five permanent Members (China, France, Russia, United Kingdom and United States). Some strict constructionists might challenge the authority of the Security Council to authorize Member States, especially if operating under national military command, to engage in preemptive self-defense, but the debate over preemptive self-defense to date has not related to potential Security Council authorization. Second, states may use force in self-defense pursuant to Article 51 of the Charter. Article 51 states that the Charter does not impair the “inherent right” of self-defense “if an armed attack occurs” against a U.N. Member.  In considering the legality of preemptive self-defense, the strict constructionist school hews closely to the language of Article 51. Because Article 51 only contemplates an act of self-defense “if an armed attack occurs,” the strict constructionist maintains that neither anticipatory self-defense nor preemptive self-defense can be lawful because such forms of selfdefense envisage action prior to an armed attack actually occurring.

2.The Imminent Threat School Proponents of the “imminent threat” school accept that the language of Article 51 speaks of self-defense in response to an armed attack, but they employ three lines of argument to advance a norm favoring a right of anticipatory self-defense, but not preemptive self-defense.  First, they say that Article 51 speaks of the Charter not diminishing an “inherent right” of self-defense, meaning that Article 51 does not create a right of self-defense but instead preserves a right that pre-existed the Charter.As such, adherents to this school note that the customary international law of self-defense prior to 1945 recognized the ability of a state to defend against not just an existing attack, but also against an imminent threat of attack. According to Sean.D Murphy, “The principal precedent relied upon is the Caroline incident, an 1836 clash between the United States and the United Kingdom in which U.S. Secretary of State Daniel Webster stated that self-defense is confined to “cases in which the ‘necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” For advocates to the imminent threat school, this inborn fight to defend against an imminent threat was preserved in Article 51. A second line of argument “employed by this school is to expand the meaning of the term armed attack.” Thus, when a state begins accumulating an army in an attack configurating along the border of another state, the first state starts the initial step of a multi-step armed attack, and the second state may respond in selfdefense. Third, this school focuses on state practice since 1945, which purportedly exhibits an acceptance of self-defense by states when an attack is imminent and unavoidable. In this regard, repeated references are made to certain key incidents, such as: the 1962 “quarantine” of Cuba by the United States; the 1967 Arab-Israeli war; the 1981 Israeli attack against an Iraqi nuclear facility; and the 1986 U.S. bombing raids against Libya.46 For each incident, according to this school, a state may be seen undertaking an action purportedly in self-defense that precedes an armed attack.

3.The Qualitative Threat School Adherents to the qualitative threat school agree with the imminent threat school that a state need not await an actual armed attack, but believe that the latter school’s requirement of an imminent threat is misplaced. For the qualitative threat school, the world has changed significantly since 1945, particularly with the advent of WMD and the rise of global terrorism. Adhering to the strictures of the Caroline standard in a contemporary world is a recipe for paralysis in the face of grave threats.

4. The “Charter-Is-Dead” School

Finally, “there is a school of thought that sees the rules on the use of force embedded in the Charter as completely devoid of any legally significant normative value”. In 1945 these rules might have had some cachet, but the practice of states over the course of the past sixty years can only lead to a conclusion that states do not adhere to the U.N. Charter in any legally meaningful way and, therefore, the rules have fallen into desuetude. States may say that the rules exist and that they are adhering to them, but this is simply empty rhetoric, a public relations ploy designed mask the reality of states simply pursuing their political interests.

                                                                  CONCLUSION

According to Murphy, “To the extent that the intervention in Iraq in 2003 is regarded as an act of preemptive self-defense, the aftermath of that intervention may presage an era where states resist resorting to large-scale preemptive self-defense”. “The intervention in Iraq posed considerable policy difficulties with the resort to preemptive self-defense: an inability to attract allies; the dangers of faulty intelligence regarding a foreign state’s weapons programs and relations with terrorist groups; the political, economic and human costs in pursuing wars of choice; and the resistance of a local populace or radicalized factions to what is viewed as an unwarranted foreign invasion and occupation”. Preemptive self-defense may continue to be used by powerful states, however, especially on a smaller scale, such as missile attacks against weapons facilities or terrorist camps in “rogue” states. Resort to such force is “channeled and disciplined by the notions that members of a society share about when force is legitimate and what kinds of goals it can achieve.”191 In part, those notions are captured by thenorms of international law because, over time, war has become perceived not as an honorable undertaking by states, but as a necessary evil, one to be avoided except as a matter of last resort and one that is now circumscribed by legal and multilateral frameworks.192 Policy-makers considering a resort to preemptive self-defense want to know whether such force will be regarded as internationally lawful as a means of predicting its costs, and may avoid or at least shape the action to minimize those costs. Unfortunately, the views of international lawyers are fractured on whether preemptive self-defense is lawful. Numerically, most international lawyers appear to fall into the schools of thought that reject preemptive self-defense, but the debate is robust and will no doubt continue.

Matthew WaxmanThe ‘Caroline’ Affair in the Evolving International Law of Self-Defense, Tuesday, August 28, 2018, 2:26 PMhttps://www.lawfaremedia.org/article/caroline-affair

Legality of the Threat or Use of Nuclear Weapons, ICJ, https://www.icj-cij.org/case/95

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See U.N. CHARTER art. 2, para. 4 (“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 other norms of international law prohibiting the use of force, such as norms embedded in regional charters. See, e.g., Charter of the Organiza tion of African Unity, done May 25, 1963, preamble, arts. II-III, 479 U.N.T.S. 39, available at http://www.africa-union.org/home/Welcome.htm (asserting that key principle of African Union was respect for sovereignty of each state and non-interference in their affairs). The OAU Charter was recently superseded by Charter of the African Union. In the Nicaragua case, the ICJ identified additional, related norms under customary international law in the form of a prohibition on the violation of a state’s sovereignty and a prohibition on intervention in the affairs of another state. See Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 106-09, 111, 212 (June 27) (discussing non-intervention principle in customary international law); IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 26-49 (Oxford Univ. Press 1963) (looking at justifications for historical examples of nations resorting to war and examining customary reasons for using force under international law); HENRY WHEATON, ELEMENTS OF INTERNATIONAL LAw § 290 (A.C. Boyd ed., Stevens & Sons 1889) (describing circumstances under which it is acceptable for states to resort to force for redress, including embargoes and taking forcible possession of “things in controversy”).

See generally EmIKA DE WET, THE CHAPTER VII POWERS OF THE UNITED NATIONS SECURITY COUNCIL 133-49 (2004) (discussing power of Security Council under Chapter VII and “the threshold that triggers Chapter VII action”); see also U.N. CHARTER, art. 39-51, (setting forth U.N. procedures for handling threats to peace, breaches of peace and acts of aggression, including Security Council authorization of use of force against states that aggressively threaten peace).

U.N. CHARTER, art. 51. In its entirety, the article reads: 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 the 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 securit

HANS KELSEN, THE LAw OF THE UNITED NATIONS: A CRITICAL ANALYSIS OF ITS FUNDAMENTAL PROBLEMS 797-98 (Stevens & Sons 1951) (arguing that Article 51’s allowance of use of force in self-defense applies only when nation faces actual armed attack, and therefore, no “imminent” threat of attack can justify armed aggression under Article 51); 2 LASSA OPPENHEIM, INTERNATIONAL LAw 156 (H. Lauterpacht ed., Longmans, Green & Co. 7th ed. 1952) (noting that U.N. Charter “confines the right of armed self-defence to the case of an armed attack as distinguished from anticipated attack or from various forms of unfriendly conduct falling short of armed attack”); Hans Wehberg, L’Interdiction du Recours d la Force: Le Principe et les Problmes qui se Posent, 78 R.C.A.D.I. 1, 81 (1951) (finding that self-defense under Article 51 is impermissible “en cas de simple menace d’agression”)

Sean D. Murphy, The Doctrine of Preemptive Self-Defense, 50 Vill. L. Rev. 699 (2005). Available at: https://digitalcommons.law.villanova.edu/vlr/vol50/iss3/9

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