Self-defence, Anticipatory Self-defence and Pre-emption: International Law's Response to Terrorism

The war against vague threats: The redefinitions of imminent threat and anticipatory use of force

“…that the attack or threat of attack is continuing’. Shah stated that an imminent threat ‘should be real, verifiable’ (2007: 103) and must be ‘identified credibly, specifically, and with a high degree of certainty’ (2007: 118). The available literature provides several examples of immediate and concrete threats, such as the visible mobilization of the enemy’s armies, navies and air forces preparing to attack (The White House, 2002: 15; IIFFMCG, 2009: 254).…”

“…Since the Caroline incident, the anticipatory use of force in self-defence operations had to be subjected to two fundamental limitations, that is, the principles of necessity and proportionality (Jennings, 1938: 89–90; Shah, 2007: 95). One of the problems that emerged with the introduction of the above-examined redefinitions of imminent threat was that the new concepts prevented the application of those two key principles governing the use of military force.…”

“…In jus ad bellum , the principle of proportionality requires that any use of military force in self-defence must be proportionate to the armed attack or the threat of an imminent armed attack (Van den hole, 2003: 103–104; Shah, 2007: 123). When evaluating whether a military response against an armed attack or a threat of an attack is proportionate, we have to take into consideration two criteria: first, we have to evaluate whether the degree of the armed force used in self-defence was proportional in terms of intensity and magnitude (Gardam, 2004: 156); and, second, we have to determine if the duration of the attack was limited to the removal of the threat (Shah, 2007: 123). Many scholars have argued that it is possible to determine whether those two criteria are met only if an armed attack, or a series of attacks, against the defending state have already taken place (Roberts, 1987: 282; Beck and Arend, 1993: 206–207).…”

“…As the majority of legal scholars pointed out, Article 51 allows a state to invoke the right to self-defence only after an armed attack has taken place (Kunz, 1947: 877–878; Higgins, 1963: 197–203; Kelsen, 2000: 797–798; Glennon, 2002: 546–547; Rostow, 2009: 550–551; Simma et al, 2012: 1041–1043). Despite the clear wording of Article 51, many scholars refused to abandon the idea of anticipatory self-defence by insisting that the inherent right to self-defence formulated in Article 51 includes the right to use military force even before an armed attack has taken place, that is, when conclusive evidence indicates a real and imminent threat of an armed attack (Bowett, 2008: 187–192; Schachter, 1984: 1633–1634; Franck, 2002: 98; Shah, 2007: 98–101). Bowett (2008: 187–192), for example, argued that Article 51 did not restrict but safeguarded the traditional right of self-defence, which included anticipatory self-defence.…”

Towards Global Justice: Sovereignty in an Interdependent World

“…The negotiation of the Anglo-American bilateral treaty Webster-Ashburton (1843) established the anticipatory self-defence principle. 105 Duncan 2003Shah 2007;Schmitt 2003. A number of eight Israeli F-16 fighter planes backed by six F-15 planes bombed the Iraqi reactor Tammuz 1/Osirak (French manufacturing) on the 7th of June 1981-Operation Opera.…”