Pre-emptive self-defence and US-led action in Afghanistan and Iraq

Is there a right to pre-emptive self-defence in international law and how far can it be extended? Discuss with reference to the US-led military actions in Afghanistan and Iraq.

Introduction

International law clearly emphasises respect for state sovereignty. Article 2 (4) of the United Nations (UN) Charter prohibits the use of force in international relations. Article 2 (4) states that: “All member states shall refrain in their international relations from the threat of force 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”. However, Article 51 of the UN Charter and Chapter VII of the Charter are the exceptions to the use of force in international relations. The UN Security Council, under Chapter VII of the Charter, can authorise the use of force such as “may be necessary to maintain or restore international peace and security”. Article 51 of the UN Charter permits the exercise of “the inherent right of individual or collective self-defence if an armed attack occurs…. until the Security Council has taken measures necessary to maintain international peace and security”. Article 51 has stirred much debate over the continuing validity of anticipatory self-defence under the Charter in the absence of an armed attack. The right to anticipatory self-defence assumes that an aggressor is poised to strike, and that one acts defensively in anticipation of the attack rather than waiting for the attack to occur.

This essay will look at the status of pre-emptive self-defence in international law and how far it extends, with reference to the US-led military actions in Afghanistan and Iraq.

Self-defence under international law

Article 51 of the United Nations Charter deals with the issue of self-defence under international law. Article 51 states that “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 takes measures necessary to maintain international peace and security”. On the face of it, the wording of the Charter makes it clear that the use of force is only allowed when an attack occurs and not before an attack. However, a number of commentators have stated that the fact that Article 51 talks of an “inherent right” of self-defence means that the right of self-defence that existed in customary international law before 1945 might still apply and co-exist with the UN Charter.

The Caroline dispute, which arose in 1873 between the United States and Great Britain, is the case cited most often for the proposition that a state has the right to resort to force when it faces an imminent threat that is otherwise avoidable. The British destroyed the Caroline steamer that was used by private citizens in the United States to ferry aid and supplies to Canadians rebelling against British rule. The then United States Secretary of State, Daniel Webster challenged the then British Foreign Office Minister, Lord Ashburton to show “a necessity of self-defence, instant, overwhelming, leaving no chance of means and no moment for deliberation” and he also stated that “the action taken must not be unreasonable or excessive”. Imminence and necessity, along with the traditional requirement that an exercise of self-defence should be proportional have become critical factors in assessing claims of anticipatory self-defence.

Article 51 of the UN Charter has generated much debate over the continuing validity of anticipatory self-defence under the Charter in the absence of an armed attack. Some commentators have argued that Article 51 of the UN Charter should be construed strictly, stating that the aim of the Charter is to create a strict standard by totally outlawing force and only allowing force to be used in the most narrow of circumstances, and that is when an armed attack has occurred. Other commentators have argued that the right of self-defence articulated in the UN Charter “should be read rationally against the useful purpose of the rule it is intended to serve”. They have also argued that a state might be entitled to use force against another state if a state feels that its sovereignty and independence is threatened by the actions of another state, even if the state’s hostile action has not risen to the level of an actual armed attack. An international law expert, Thomas Franck, Director of the Center for International Studies at NYU Law School has argued that a state might be entitled to use force “where there is very clear evidence that an armed attack, having not yet occurred, is nevertheless imminent and would be overwhelming, and would make the awaiting of the armed attack disastrous for the attacked country”. Some international law experts argue that a state does not have to wait for a possibly devastating attack before it can act, especially in this era when weapons that can cause severe mass destruction can be assembled and delivered easily and literally within seconds. They also argue that the language of Article 51 does not alter a state’s inherent right of self-defence as defined by customary international law. Judge Schwebel of the International Court of Justice in the Nicaragua case disagreed with a reading of Article 51 of the Charter that would mean “if, and only if, an armed attack occurs”.The International Court of Justice in the Nicaragua case stated that the right to self-defence was a right under customary international law.

Three events are often cited as demonstrating the legitimacy of anticipatory self-defence under the Charter in the absence of an armed attack, notwithstanding the adoption of the Charter. In 1967, Israel launched a pre-emptive war against a coalition of Arab states led by Egypt, as the Egyptian army was massing men on its borders, preparing to attack Israel. It should be noted that no actual attack had been initiated by Egypt. However, Israel justified its attack, stating that lining troops along its borders showed preparation for war and that that action constituted an armed attack. This case is frequently cited as the classic modern case of legitimate anticipatory self-defence<. In 1981, Israel attacked a nuclear facility in Osirak, Iraq. The Security Council unanimously condemned Israel’s action and a number of states including the United States criticised the action, arguing that there was no right to anticipatory self-defence and that Israel had failed to exhaust peaceful measures. However, other states supported Israel, arguing that Israel had the right to anticipatory self-defence. Israel’s ambassador to the UN argued that Israel has an inherent right of self-defence and was exercising its right. In 1962, the United States imposed a blockade of Cuba to forestall any attack from the Soviet Union or Cuba, after it had emerged that the Soviet Union was planning to place nuclear missiles in Cuba and to use Cuba as a base to launch attacks against the United States. The then president of the United States, President Kennedy told the American people: “We no longer live in a world where only the actual firing of weapons represents a sufficient challenge to a nation’s security to constitute maximum peril”. It should be noted that President Kennedy rejected more forceful options, such as a strategic strike or full-scale invasion. However, the action of the United States towards Cuba was severely attacked by a number of states at a Security Council debate on the issue. They argued that the United States could not invoke the provisions of Article 51 of the United Nations Charter to justify its quarantine of Cuba.

The world has changed greatly since 1945, when the United Nations came into being. Weapons capable of causing mass destruction can be obtained, assembled and moved easily to any part of the world in a short time. It would not be reasonable today for a state that believes that its security is at risk to do nothing and wait until it is attacked. This does not mean that states should take the law into their own hands and use force based on the mere suspicion that a state wants to attack them or simply because they can. Article 51 of the UN Charter is a universal document that should be accepted and respected by all nations, therefore for the Article to remain relevant, it must be flexible enough to adapt to changing circumstances. The better argument in the debate appears to be to support a cautious view of anticipatory self-defence, with recognition that the concept must be interpreted consistently with the Charter’s goal of limiting force.

The next issue to be considered, now that I have established that some right of pre-emptive self-defence might exist in international law, is to look at how far it can be extended.

How far can the right of pre-emptive strike be extended?

The wording of Article 51 of the UN Charter gives states the power to take action to defend themselves if there is an armed attack against them, until the UN Security Council takes any action it deems necessary to maintain or restore international peace and security. Some leading international law experts have argued that if a right to pre-emptive self-defence exists, then such a right only exists when the affected state is under such an overwhelming and imminent threat that not taking any action will lead to catastrophic consequences. They also argue that the extent of the pre-emptive strike taken by the state under imminent threat should be justified by the necessity of self-defence and must not be unreasonable or excessive. In order words, the state invoking the provisions of Article 51 should employ only the force needed to contain the imminent threat that it is facing. Michael Byres, Associate Professor at Duke University School of Law has argued that “you have the right of self-defence until such time as the Security Council takes action. And therefore it is implied that if you have time to deliberate and go to the council before you take pre-emptive action, then you have to go to the Council”.

The right to pre-emptive self-defence can also be extended in a situation whereby the Security Council fails to take adequate action to protect a state against an imminent and overwhelming threat. A state can still take pre-emptive action to defend itself if its security continues to be at risk. It is important to point out that a state should always exhaust all other means of ending a dispute before embarking on military action in order to prevent the threatened attack. This will help to convince the international community that you acted reasonably.

The Bush Doctrine of pre-emptive self-defence and US-led military action in Iraq and Afghanistan

Terrorist groups attacked the United States on 11 September 2001. Terrorist groups are very difficult to detect and close down before they strike. The rules that apply to states in international law do not apply to terrorist groups. The United States embarked on a global ‘war on terror’, vowing to track down terrorists and to attack any state found harbouring or giving them support before they could attack the United States. A National Security Strategy (NSS) was issued by President George W. Bush in September 2002. The NSS rests upon a standard doctrine of anticipatory self-defence and explores the question of when an attack is imminent. The NSS on the face of it does not seek to change the rule relating to anticipatory self-defence, rather its aim is to explore how the rule and its underlying purpose can be applied in particular situations not existing in the past. The UN Charter was drawn up in 1945 and the world has changed since then. The provisions of the Charter do not adequately cover many situations existing today, such as terrorism and the proliferation of weapons of mass destruction. The United States led by the Bush administration announced a new strategic doctrine of pre-emptive use of force in respect of weapons of mass destruction and terrorism. The military operations carried out by a coalition of willing states led by the United States in Iraq and Afghanistan without the explicit authorisation of the Security Council are covered by this doctrine of pre-emptive self-defence also known as the ‘Bush Doctrine’. The legal basis for the doctrine of pre-emptive self-defence is stated by President Bush in his NSS when he says that “for centuries international law recognised that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack”.

President Bush went further to state that “the notion of pre-emption is inherent in the right of self-defence, recognising the need to adapt the concept of imminence to the capabilities and objectives of today’s adversaries .The use of force pre-emptively in self-defence is the right of each state and does not require Security Council action… it would be irresponsible to ignore that these adversaries rely on acts of terror and potentially weapons of mass destruction that can be easily concealed, delivered covertly and used without warning”.

The United States led a coalition of other willing states and invaded Iraq in March 2003 without the authorisation of the Security Council. One of the reasons given by the United States to justify its invasion of Iraq was pre-emptive self-defence .The other reasons given by the United States to justify its invasion includes a continuation of lawful collective self-defence stemming from Iraq’s 1990 attack on Kuwait, the naked aggression by Iraq against its neighbours, its efforts to obtain weapons of mass destruction, its record of having used such weapons, Security Council action under Chapter VII of the UN Charter and continuing Iraqi defiance of the Security Council’s requirements.

The Bush administration argued that with the proliferation of weapons of mass destruction coupled with the ease with which such weapons can be moved around and used, the United States could suffer catastrophic consequences if those that produced or harboured such weapons were not closed down and cut off before they could launch attacks against the United States. They argued that a proper understanding of the right of self-defence should extend to authorising pre-emptive attacks against potential aggressors. Iraq was known to have continuously defied Security Council resolutions. Iraq had a dictator who had earlier invaded Kuwait, a sovereign state, and who had been known to use weapons of mass destruction against his own people. The Iraqi regime continuously refused to allow weapon inspection in line with Security Council resolution 687, which was adopted in April 1991 at the end of the Gulf War. Notwithstanding all of the above, the issue is, what is the status of the pre-emptive strike in international law and is the United States’ military action against Iraq and Afghanistan is legal within the orbit of international law? The wars in Iraq and Afghanistan have greatly divided the international community. International law commentators have argued that the Bush doctrine of pre-emptive strike has raised fundamental questions about the nature of international law.

Opponents of the US-led military action in Iraq have criticised the war and President Bush’s doctrine of pre-emptive self-defence as being clearly illegal .The wording of Article 51 of the UN Charter states that “states have the right to self-defence, until the Security Council has taken measures to maintain international peace and security”. Some commentators have argued that this provision implies that if you have to deliberate and go to the Security Council before you take pre-emptive action then you have to go to the Council. In the case of Iraq, there was nothing to show that an overwhelming, instant threat was emanating from Iraq or that Iraq was going to attack the United States within a matter of days, therefore the United States had time to take the matter to the Security Council and not usurp the powers of the Security Council. This action by the United States, it is argued, does not augur well for international law and international relations. The action of the United States is contrary to Articles 2 (4) and 51 of the UN Charter. The United States has also been criticised for using unreasonable and excessive force in Iraq and Afghanistan and for extending the right of pre-emptive self-defence.

The legality of the action of the US-led military intervention in Iraq and Afghanistan cannot be justified even if the overthrow of Saddam Hussein’s regime and the Taliban regime produced good consequences for the people in those countries or the region. The United States and its allies could not convince the international community that Iraq posed a serious threat to its security in order to justify a pre-emptive strike. The then French President, Jacque Chirac and the then German Chancellor, Gerhard Schroder were against the United States and the coalition of the willing for attacking Iraq under the notion of pre-emptive strike without the approval of the Security Council. It is essential to the international system to have a clear principle that “no single country has the capacity to make a judgment over the intentions of another country”. Article 51 will not authorise a military strike if there is no imminent danger and there is time for peaceful resolution of the conflict.

Despite the criticisms directed against the United States and its allies for the military action in Iraq, some commentators have argued that the military action in Iraq can be justified because the United States and its allies were exercising their inherent right of self-defence as permitted under Article 51 of the Charter. Saddam Hussein had acquired and used weapons of mass destruction in the past against Iranians and against his own people. The Security Council in 1992 indicted Iraq on its record of arbitrarily using weapons of mass destruction and ruled that the proliferation of weapons of mass destruction was a threat to international peace and security. The prospect of Saddam Hussein acquiring weapons of mass destruction was sufficiently grave that a pre-emptive strike by the United States would be legitimate. Some international law experts argue that the wording of the UN Charter does not extinguish a state’s inherent right of self-defence as defined by customary international law, neither does it say that a state should wait for a possibly catastrophic attack before taking action, especially in this era when weapons of mass destruction can be delivered more rapidly.

The UN General Assembly and the Security Council passed unanimous resolutions after the terrorist attack against the United States on 11 September 2001. The Security Council passed resolutions 1368 and 1373, restating the right of self-defence under Article 51 in respect of terrorist attack. The Al-Qaeda terrorist organisation led by Osama Bin-Laden was responsible for a devastating terrorist attack against the United States. The Taliban regime in Afghanistan was providing support to the Al-Qaeda terrorist organisation. Al-Qaeda had training camps in Afghanistan and had extensive operational bases in the country. The United States launched an extensive military operation against Afghanistan with a view to removing the Taliban government that was providing support to the terrorist organisation and to shut down the training camps in the country, before Al-Qaeda could strike the United States again. The strike against Afghanistan was undertaken by a coalition of the willing led by the United States rather than by the UN. The Security Council did not authorise the strike. The Bush administration defended its action, arguing that it was exercising its inherent right of self-defence. It should be noted that President Clinton’s administration attacked four terrorist camps in Eastern Afghanistan on 2 August 1998. President Clinton justified the attack as self-defence. The military strike against Afghanistan, just like the strike against Iraq by the coalition of the willing, led to a lot of questions and debate in the international community. Many international law scholars asked if the strike was a necessary and proportionate response by the United States and its allies. Some commentators argued that the action of the United States was clearly illegal as the Security Council did not authorise it and that the United States could not claim that it was acting under self-defence, as the Taliban government of Afghanistan had not attacked it. Some commentators, however, argued that the United States was exercising its inherent right of self-defence when it attacked Afghanistan. They argued that the terrorist attack against the United States was an act of aggression and an armed attack, and that the United States had a right to defend itself against further attacks. They argued that since the Taliban administration was giving support to Al-Qaeda and allowed the organisation to have training camps and operational bases in the country, they were effectively supporting devastating armed attacks against the United States and the United States had a right to defend itself and prevent such a regime from sponsoring terrorism that was threatening the United States. Terrorists have been described as criminals acting on a global scale and as having no interest in upholding the acknowledged rules of international law as states do and, as such, they are not inhibited in any way by the prohibition of the use of force in international law, therefore a state can launch a strike against a terrorist organisation if there is concrete evidence that they are planning an attack against a state, even before they deliver the first strike.

Conclusion

The US-led military action in Iraq and Afghanistan has been criticised as being unlawful. However, the proliferation of weapons of mass destruction, Iraq’s persistent defiance of Security Council resolutions, the September 11 attack against the United States masterminded by Al-Qaeda, terrorist camps and operational bases in Afghanistan and the Taliban’s support for terrorists were sufficient threats that had to be dealt with. It would be catastrophic to wait for an armed attack before taking any action, as the attacks in New York and Washington have shown.

There is no doubt that some right to a pre-emptive strike exists under international law. There is no explicit mention of any prohibitions in the Charter of the United Nations that states have the right to act if they have concrete evidence that their security is at risk. It is generally accepted that a pre-emptive strike can be launched irrespective of a prior armed attack. Different interpretations have been given for what constitutes imminent threat and there is no universally accepted explanation or justification for a pre-emptive strike.

Saddam Hussein presented a genuine threat to the United States because he had the prospect and capacity to acquire weapons of mass destruction and use them, given his track record, therefore a pre-emptive strike by the United States was legitimate, even without the express authorisation of the use of force by the Security Council. A state can still exercise its inherent right of self-defence if the Security Council fails to take sufficient action to meet the threat the state is facing and the security of the threatened state continues to be at risk. The threats to security have changed drastically since the UN Charter was drawn up and even more so since the Caroline doctrine standard emerged a century before that. Weapons of mass destruction can be obtained easily and used with catastrophic consequences, and various terrorist organisations such as Al-Qaeda have emerged and are not bound by the rules of international law, therefore the Caroline principles formulated by the then United States Secretary of State, Daniel Webster coupled with the provisions of Article 51 should be read and construed in the light of events occurring in the world today.

Finally, the United States can equally justify its pre-emptive use of force in Iraq as being consistent with Security Council resolutions, including resolutions 678, 687 and 1441. Iraq had persistently breached the cease-fire terms established in April 1991, after the allied forces drove Iraqi forces out of Kuwait. The pre-emptive action against Iraq is lawful as one episode in a conflict initiated by Iraq and in the context of Iraq’s ongoing defiance of Security Council resolutions.

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See Article 2 (4) UN Charter

See Chapter V11 UN Charter.

Miriam Sapiro, American Journal of International Law, Vol. 97, No. 3 (Jul. 2003) p. 601.

Ibid p. 601.

CDI Research Analyst, Steven C. Welsh, “Pre-emptive War and International Law”, Dec.5, 2003, can be accessed at http://www.cdi.org/news/law/preemptive-war.cfm, accessed on 21/12/06.

See Article 51 UN Charter.

Miriam Sapiro, American Journal of International Law, Vol. 97, No. 3 (Jul. 2003) p. 600.

Letter from Daniel Webster to Lord Ashburton (August 6th 1842), quoted in 2 JOHN BASSTT MOORE, A digest of international law 412 (1906).

Miriam Sapiro, American Journal of International Law, Vol. 97, No. 3 (Jul. 2003) p. 600.

Ibid p. 601.

Martti Koskenniemi, Director of the Erik Castren Institute of International Law and Human Rights at the University of Helsinki in Finland, can be accessed at http://www.crimesofwar.org/expert/bush-intro.html, accessed on 2/01/07.

Martti Koskenniemi, Director of the Erik Castren Institute of International Law and Human Rights at the University of Helsinki in Finland, can be accessed at http://www.crimesofwar.org/expert/bush-intro.html, accessed on 2/01/07.

Thomas Franck ,Director of the centre for International Studies at NYU Law School can be accessed at http://www.crimesofwar.org/expert/bush-intro.html, accessed on 2/01/07.

Nicaragua V.U.S, Merits, 1986.ICJ REP.14, 94 (June 27) p. 337.

Miriam Sapiro, American Journal of International Law, Vol. 97, No. 3 (Jul. 2003) p. 601.

Ibid.p.601.

Security Council Resolution 487 (June 19, 1981).

Radio and Television Report to the American People on the Soviet Arms Build-up in Cuba, 485 Public Papers 806, 807 (October 22,1962).

Miriam Sapiro, American Journal of International Law, Vol. 97, No. 3 (Jul. 2003) p. 601.

Ibid p. 602.

Ibid p. 601.

Michael Byres, Associate Professor at Duke University School of Law can be accessed at http://www.crimesofwar.org/expert/bush-intro.html, accessed on 4/1/07.

Eyal Benvenisti, Director of the Minerva Centre for Human Rights at the Hebrew University of Jerusalem can be accessed at http://www.crimesofwar.org/expert/bush-intro.html, accessed on 4/1/07.

CDI Research Analyst, Steven C. Welsh, “Pre-emptive War and International Law”, Dec.5, 2003, can be accessed at http://www.cdi.org/news/law/preemptive-war.cfm, accessed on 21/12/06.

Ibid.

Lori Fisher Damrosch & Bernard H. Oxman, American Journal of International Law, Vol. 97, No. 3 (Jul. 2003) p. 554.

THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA 15 (September 17th, 2002) available at http://www.whitehouse.gov/nsc/nss.pdf, accessed on 7/01/07.

Ibid.

Lori Fisher Damrosch & Bernard H.Oxman, American Journal of International Law, Vol. 97, No. 3 (Jul. 2003) p. 555.

William H.Taft IV & Todd F.Buchwald, American Journal of International Law, Vol. 97, No. 3 (Jul. 2003) p. 558.

Anthony Dworkin, Iraq and the “Bush Doctrine” of pre-emptive self-defense can be accessed at http://www.crimesofwar.org/expert/bush-intro.html, accessed on 22/12/06.

http://www.crimesofwar.org/expert/bush-intro.html, accessed on 22/12/06.

Article 51of the United Nations Charter.

Michael Byres, Associate Professor at Duke University School of Law can be accessed at http://www.crimesofwar.org/expert/bush-intro.html, accessed on 4/1/07.

Lori Fisher Damrosch & Bernard H. Oxman, American Journal of International Law, Vol. 97, No. 3 (Jul. 2003) p. 556.

Eyal Benvenisti, Director of the Minerva Centre for Human Rights at the Hebrew University of Jerusalem can be accessed at http://www.crimesofwar.org/expert/bush-intro.html, accessed on 4/1/07.

Terence Taylor, Deputy Director of the International Institute for Strategic Studies, and formerly a Chief Inspector for the UN Special Commission on Iraq can be accessed at http://www.crimesofwar.org/expert/bush-intro.html, accessed on 4/1/07.

http://san.beck.org/us-missilestrike.html accessed on 8/01/07.

Eyal Benvenisti, Director of the Minerva Centre for Human Rights at the Hebrew University of Jerusalem can be accessed at http://www.crimesofwar.org/expert/bush-intro.html, accessed on 4/1/07.

http://www.ipcs.org/new/pcspublications.jsp?status=publications&status1=issue&mod=d&check=10&try=true accessed on 9/01/07.

Ibid.

Martti Koskenniemi, Director of the Erik Castren Institute of International Law and Human Rights at the University of Helsinki in Finland, can be accessed at http://www.crimesofwar.org/expert/bush-intro.html, accessed on 2/01/07.

President George W.Bush address to the Nation on Iraq, Mar. 18, 2003, 39 WEEKLY COMP. PRES. DOC.342,343 (Mar. 24, 2003).

Lori Fisher Damrosch & Bernard H. Oxman, American Journal of International Law, Vol. 97, No. 3 (Jul. 2003) p. 555.