The Legality or Illegality of Pre-Emptive Self-Defence

Abstract: The threat or use of force in international relations has been unlawful since the UN Charter entered into force in 1945. States still had the right, though, to protect themselves in self-defence. There has, from the start, been a discussion about the extent of this right to self-defence. In UN Charter article 51 it is stated that Members have an ''inherent right of individual or collective self-defence if an armed attack occurs'' against them. The question, though, is whether this means that self-defence can only be used if an armed attack has actually occurred, or whether it is possible that self-defence can be used at an earlier stage when there is only a threat of an armed attack. In other words, is anticipatory or perhaps even pre-emptive self-defence legal according to international law? Anticipatory self-defence would be on the cards if there were an imminent danger of an armed attack, and pre-emptive self-defence gives even wider scope. In the latter there is no need for the presence of an immediate, direct threat, instead only that the situation, if left to grow, would be such that the cost of any later neutralisation action would be unacceptable. The excuse of anticipatory and even pre-emptive self-defence has been used by States numerous times, but the UN and its Members are very reluctant to recognise the legality of it. This thesis concentrates on pre-emptive self-defence, but the debate regarding anticipatory self-defence is included because of its relevance since it falls within the boundaries of pre-emptive self-defence. The customary international law, that existed before the UN Charter was created, allowed anticipatory self-defence in certain circumstances. It has therefore been argued that this pre-existing customary right still exists parallel to the UN Charter, which would mean that self-defence is allowed in the presence of an imminent threat of an armed attack. It can probably be said from the doctrine, though, that article 51 is the only right of self-defence that is available for States today. Thus pre-emptive self-defence is not lawful according to current international law. The US has in the past been opposed to the use of pre-emptive self-defence, but after the terror attacks on 11 September 2001, a change in attitude can be detected. In their 2002 National Security Strategy document they even claimed that in the future they will, if necessary, act pre-emptively to forestall or prevent attacks by their enemies. This attitude change has been brought on by terrorists, rogue States and weapons of mass destruction. Weapons of mass destruction and rogue States cannot be said to constitute a new threat, but when combined with terrorists they probably can. Terrorists as such are not a new concept, but some terrorist organisations have moved up into a different league. With more funding and better possibilities for communication, they have become greedier for power and influence. Instead of just trying to change a particular policy, they seriously threaten to destroy the structures and the values of today's world public order. Thus they have become more professional and sophisticated. Is this ''new'' threat to international peace and security of such a degree that the concept of self-defence should be extended to include pre-emptive self-defence? The risk of abuse cannot be ignored. Pre-emptive self-defence could be used as a pretext for aggression, and, instead of decreasing the risk of armed conflicts between States, it could lead to more violence. Indeed, terrorists in combination with rogue States and weapons of mass destruction pose a threat to international peace and security that has not been experienced before, but it still does not seem likely that the threat is so severe and extensive that the right to self-defence will be extended.