During the spring semester 2008, I taught international law and human rights at Hongik University College of Law in Seoul, South Korea, as a visiting professor. During the semester, Professor Lyou Byang Woon organized a conference on various aspects of the laws of war and asked participants to contribute an article to Hongik's law review. This article was the result.
Ever since the administration of former U.S. President George W. Bush announced the “preemption” doctrine as one of what was to become many attempts to justify the U.S. invasion of Iraq, I had been surprised that virtually all, if not all, of the criticisms of preemption had, nevertheless, accepted the doctrine of anticipatory self-defence. I have never been happy with anticipatory self-defence for all of the usual reasons:
► It doesn’t comport with the language of Article 51 of the Charter of the United Nations, which states:
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.
► I don’t believe the Caroline doctrine (prior IntLawGrrls posts) in fact accepts anticipatory self-defence.
► I don’t think that Article 51's reference to the “inherent” right of self-defence was meant to incorporate anticipatory self-defence into the Charter.
► The doctrine cannot satisfy necessity or proportionality requirements of self-defence.
… And so on.
But more than all of these well-worn arguments, I had become convinced that the decisions of the International Court of Justice (logo at left) in the Nicaragua, Oil Platforms, and DRC cases, although not discussing anticipatory self-defence, practically ruled it out by implication. Those three cases all interpreted Article 2(4) of the Charter, which states: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.
In each case the ICJ held that even if a state suffers an illegal use of force against it by another state that violates Article 2(4), the victim state does not get a right of self-defence unless the use of force reached a certain level in gravity and scale. In other words, even suffering low-level uses of armed force doesn’t give rise to a right to self-defence.
If that is so, I thought, how could a state that had not yet suffered any use of force against it possibly have a right of self-defence?
This logic led me to investigate language of the Charter and the commentary of scholars contemporary with its drafting. I was not surprised to discover that most of them were quite clear that the Charter meant to prohibit anticipatory self-defence.
The article examines the pre-Charter law on the use of force; the drafting and language of the Charter and the international legal cases that address self-defence. I conclude that international law prohibits anticipatory self-defence, and thus leaves no doubt that the use of preemptive force is illegal.
