Anticipatory Self-Defense: The Terrorism Exception

Current History

Volumn 102, Issue 664, 2003, Pages 222-232

  Nabati, Mikael F ^a  

^a MIT Sloan School of Management   (United States)

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EID: 85180354834     PISSN: 00113530     EISSN: 1944785X     Source Type: Journal    
DOI: 10.1525/curh.2003.102.664.222     Document Type: Article

References (18)

1. Article 51 reads 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 United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
2. Article 2(4) reads: “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.”
3. In the context of the 1991 Iraqi invasion of Kuwait, some commentators have argued that once the Security Council was seized of the matter and imposed sanctions on Iraq under Chapter 7 of the charter, Kuwait, the United States, and the United Kingdom were barred from the use of force in self-defense under Article 51, unless authorized by the Security Council.
4. See Timothy Kearley, “Raising the Caroline,” Wisconsin International Law Journal, vol. 17 (1999), pp. 325, 329.
5. Michael J. Glennon, “Preempting Terrorism: The Case for Anticipatory Self-Defense,” The Weekly Standard, January 28, 2002.
6. Besides the ICJ definition of an “armed attack” under Article 51 in Nicaragua v. United States, the UN General Assembly has defined an “aggression” as including the “sending by or on behalf of a state of armed bands, groups, irregulars, or mercenaries which carry out acts of armed force against another state.”
7. See UN General Assembly Resolution 56/1, 56th Session, General Assembly Official Records, September 2001 . Note that the language of the resolution suggests that the September 11 actions were regarded more as conventional criminal acts, subject to prosecution under the international “terrorist” conventions.
8. Under common law a nonaggressor is justified in using force on another if he reasonably believes that such force is necessary to protect himself from imminent use of unlawful force.
9. Oscar Schachter, “Self-Defense and the Rule of Law,” American Journal of International Law, vol. 83, no. 259 (1989).
10. Quoting Thomas Erlich and Mary Ellen O’Connell. Gregory M. Travalio, “Terrorism, International Law, and the Use of Military Force, Wisconsin International Law Journal, vol. 18 (2000).
11. Thomas M. Franck, “Iraq and the ‘Bush Doctrine’ of PreEmptive Self-Defence,” Crimes of War Project, Expert Analysis, August 2002 .
12. Hans Kelsen, General Theory of Law and State, Anders Wedberg, trans. (Cambridge: Harvard University Press, 1945), p. 441.
13. See Bruce Ackerman, “But What’s the Legal Case for Preemption?” Washington Post, August 18 2002.
14. See William A. Galston, “Why a First Strike Will Surely Backfire,” Washington Post, June 16, 2002. See also Michael Byers, “Iraq and the ‘Bush Doctrine’ of Pre-Emptive Self-Defence,” Crimes of War Project, Expert Analysis, August 2002 .
15. See Ryan C. Hendrickson, “Article 51 and the Clinton Presidency,” Boston University International Law Journal, vol. 19 (2001), pp. 207, 228.
16. Galston, “Why a First Strike Will Surely Backfire.”
17. Thomas M. Franck, “Editorial Comments: Terrorism and the Right of Self-Defense,” American Journal of International Law, vol. 95 (2001), p. 839.
18. Beth M. Polebaum, “National Self-Defense in International Law: An Emerging Standard for a Nuclear Age,” New York University Law Review, vol. 59 (1984), pp. 187, 188.