3003 words (12 pages) Essay in Criminal Law

02/02/18 Criminal Law Reference this

Last modified: 02/02/18 Author: Law student

Disclaimer: This work has been submitted by a student. This is not an example of the work produced by our Law Essay Writing Service. You can view samples of our professional work here.

Any opinions, findings, conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of LawTeacher.

Under what circumstances, if any, does a state’s inherent right of self-defense allow it to take lawful military action before it has been subject to an armed attack? To what extent, if any, should the right of self-defense be reinterpreted to do so?

Since the Geneva Convention in 1949, the world has developed its technologies considerably, and the scope of the right of a nation to use force as an act of ‘self-defense’ is expanding (Antonopoulos, 2008).

War should be limited unconditionally to ‘self-defense’ and not for the purpose of expansionism. But when does active ‘self-defense’ legitimately start? And what does ‘self-defense’ actually mean these days?

It is enshrined in the Just War Doctrine and under the Charter of the United Nations that it is a state’s inherent right to act in self-defense when a state is subject to an armed attack (Charter UN, 1945). This thus raises some controversy about what is meant precisely by an ‘armed attack’ in Article 51. An armed attack is “the use of force of one state against the sovereignty, territorial integrity, or political independence of another state”. This includes, “invasion, bombardment, blockade of seaports”, or allowing your territory to be used for perpetrating an act of aggression against a third state” (Charter UN, 1974).

With the world ensnared in modern technology the preparation for an attack by one nation against another, and indeed an ‘imminent’ attack, could well be under way from far outside state borders. A threat is no longer limited to the amassing of malevolent forces just outside national boundaries (Sands, 2005). The reach of aggression has been growing a longer arm, an inter-continental arm, and many of the players are now so camouflaged they have become indiscernible from the civilian population.

In War ‘timing’ is of the essence, which has recently acquired the strategy of the ‘pre-emptive’ attack as a form of ‘self-defense’. The Bush Administration’s use of the term ‘pre-emptive’ attack as a justification for the invasion of Iraq in March 2003 is still ringing in our ears (Ackerman, 2003), and may be providing a dangerous precedent for all nations with an eye to military, political or psychological advantage, legal or otherwise.

First and foremost, as in many political and judicial discourses, it is important to come to a general understanding, in this case of ‘pre-emptive’, ‘preventive’ and ‘anticipatory’ self-defense. What does ‘pre-emptive’ actually mean? Essentially – ‘to appropriate beforehand’, ‘to pre-engage’ (The Shorter Oxford English Dictionary on Historical Principles, 1975). The complications arise through the alternative terminologies: ‘preventative’, ‘anticipatory’, and ‘interceptive’ self-defense.

Dinstein’s (2005) “Interceptive’ is clearer to comprehend than ‘pre-emptive’, ‘preventative’ and ‘anticipatory’. ‘Interceptive’ indicates that action has already been taken by the assailant; in The Shorter Oxford English Dictionary on Historical Principles (1975, p.1092) it refers to this in terms of medical usage as “the interruption of the motion or passage of …”. The very point of the presence of ICBM’s (intercontinental ballistic missiles) in any worthwhile arsenal is for the interception and destruction of missiles already launched by the enemy from thousands of miles away. This puts ‘interceptive’ into a different category from ‘preventative’ and ‘anticipatory’.

What is ‘anticipatory’ action? It can be ‘a prior action that prevents or precludes the action of another’ (The Shorter Oxford English Dictionary on Historical Principles, 1975, p. 81). This means to take action before the action of another. Isn’t that how ‘pre-emptive’ has been described? Essentially – ‘to appropriate beforehand’, ‘to pre-engage’. Gray (2000) hence doesn’t distinguish between pre-emptive and anticipatory.

Now we come to “preventative”. Any decent dictionary will tell you it can mean ‘anticipates in order to ward against; that acts as a hindrance or obstacle and closer to home, ‘a just fear of an invasion’. N.B. the word ‘just’ (The Shorter Oxford English Dictionary on Historical Principles, 1975, p. 1666).

However, Kennedy (2006) highlights the problem of the use and manipulation of language. It is the discourse of language that is often purposely confusing the definitions and difference of pre-emptive and preventive use of force in self-defense.

The essay’s title stresses- “lawful military action before it has been subject to an armed attack”. But there are some profound moral and legal controversies around the doctrine of self-defense, and more precisely about the notion of preventive self-defense (Rodin, 2006). Preventative self-defense is the very paradox of what the charter, international law, and customary law would ever argue for, despite the above dictionary’s description that in War the term ‘preventative’ is ‘a just fear of an invasion’.

The issues are clouded as we are not speaking of the traditional form of self-defense, as we know it in international law and in the UN Security Council. The world is now open to varying interpretations, invariably to the advantage of the powerful nations, exemplified by the claim of ‘self-defense’ by the US in the war on Iraq.

The vagaries of interpretation not only create a legal dilemma, they also constitute a moral problem, which many academics have highlighted in the past years, especially following the Iraq invasion, and the continuing debates on Iran.

The general consensus requires a clear imminent threat, for it to be considered as justifiable pre-emptive self-defense (Kaufman 2006, Dinstein 2005). As mentioned above, the important characteristic of self-defense amongst others is imminence (Crawford, 2003). Thus where there is no clear imminent threat, the use of self-defense (pre-emptive) is not a lawful military action. The importance of the element “imminence” presents a requirement for it to be permissible even under the law of Article 51 (Charter UN).

Nevertheless the question remains how to measure imminence? “The concept of imminence must be flexibly interpreted in an age in which technology allows great devastation to be wrought in a very short period of time” (Sands, 2005).

Webster has drawn on the necessity of imminence in the Caroline Incident 1837 (Stevens, 1989). In this incident he states that imminence describes the situation where there is no time for alternative possibilities to halt the threat. Where a threat is not yet shaped but it does present a possible future threat, the use of self-defense is not permissible. The notion of preventive self-defense is contradictory in itself (Kaufman, 2006). Using force to stop possible attacks is the opposite of the very nature of defense, and is in a sense offensive.

Nevertheless to differentiate between the concept of a clear imminent threat and pre-emption one can draw on the Six Day War in 1967, fought as a ‘justification’ for a pre-emptive use of force. Israel saw Egypt as an imminent threat and thus attacked Egypt first, while the planes of the Egyptian air force were gathered on the runways waiting for the next day’s imminent attack on Israel. Israel’s Intelligence knew this (Dinstein, 2006). However, in 1981 Israel attacked Osiraks (Iraq) reactor that was still under construction at that time (Cohen, 1995). Israel used the justification of pre-emption which has since been widely dismissed, as the reactor didn’t pose an imminent threat. The latter case is pre-emptive or anticipatory, and thus illegitimate.

Waltzer (2006) argues that one shouldn’t solely concentrate on the imminence of a threat, but on whether the threat is sufficient (p.81). This is surely dependent on reliable intelligence gathering systems. This may be facilitated through more sophisticated technology, or it may well be hampered by the very use of jungles of intelligence data bases, dependent on fallible software, and run by bureaucratic departments in environments remote and alien from the very arenas they are attempting to penetrate.

Furthermore, how much data needs to be gathered to provide evidence to initiate a pre-emptive or even a preventative strike? Although these questions are of course crucial, there are factors which depend on the very nature of the situation. Finding an answer to this demands a discussion balanced between strategy and moral issues (Walzer, 2006). One cannot exclude the other.

Drawing on the Caroline incident again, Webster adds that the force used in ‘self-defense’ to the threat must be proportional (Stevens, 1989). Also the Nicaragua case (1986) sets both the requirement of necessity and proportionality. These requirements are not present in the charter, but are however present in customary law.

U.S.’s military reaction to the 9/11 attack may be justified. And a military reaction by Israel to Hamas’ rocket attacks from Gaza may be justified. But is there not a moral consideration for the brutal over-reaction? i.e. asymmetrical response, i.e. disproportional response? This raises the consequentialist argument, approximately 3000 dead from the 9/11 attack versus un-quantified civilian fatalities in Iraq and Afghanistan as USA’s asymmetrical response. The proportionality requirement raises questions around justifying any preventative use of force as planned use of force is usually measured against attacks that have already occurred, but in the case of preventative intervention this is impossible (O’Connel, 2002).

Since 9/11 some nations question whether the State can defend itself against unforeseeable threats. As Guiora (2008) argues, a struggle of the future, particularly if the attackers may not represent a nation. In the case of 9/11, the assailants were from neither Iraq nor Afghanistan which were the two nations USA decided to retaliate against. The assailants came primarily from Saudi-Arabia and Egypt (USA’s staunchest allies in the Middle East) and Yemen. Were these terrorists’ nationalists or solely representing an ideology? In their case it appears they were not representing a specific national government. Hence the attacked nation (USA) cannot be justified in a retaliation of ‘pre-emptive self-defense’ against an entire nation or state (Afghanistan and Iraq).

This brings us to a crucial question surrounding ‘pre-emptive’ attacks. What is the motive? Was the Bush administration exploiting the tragedy of 9/11 as a motive for expansionism? In such a case, any claims for justifying an attack on a nation as ‘pre-emptive self-defense’ is unallowable. McMahan (2006) stated that the absence of a motive and thus a legitimate target “…seem to imply the absence of a just cause” which automatically presents the notion that a preventive self-defense is unlawful (p.178). USA justified its preventive war on Iraq as a pre-emptive war, which didn’t meet the requirements of a pre-emptive war (Chomsky, 2003). One can not justify a war on something that a state has not done (Walzer, 2006).

Moreover, Walzer’s (2006) analysis in a rule-consequentialist approach questions whether preventive use of force, if not legally, is morally justifiable. The answer is “no”, allowing preventive war as stated above, would give permission to too many wars in future (Luban, 2003). Walzer (2006) agrees, even if trying to argue from a consequentialist point of view, it would be better not to fight a preventive war, since one has to take “every” consequence into consideration such as the undeniable consequence of justifying one preventive war, which would lead to justifying numerous other wars. O’ Connell (2002) argues this would lead to justification for “Pakistan to attack India, for Iran to attack Iraq, for Russia to attack Georgia, for Azerbaijan to attack Armenia, for North Korea to attack South Korea, and so on” (p.19). One case would create a precedent both legally and morally for other states to follow.

In historical context, de Vattel(…..) and Grotius argued in favour of preventive war in order to react to the threat of imbalance of power, which represents a very utilitarian point of view. However, Walzer (2006) states that a consequentialist would allow lawful military self-defense before it has been subject to an armed attack if the balance of power is threatened and thus civilians liberties, secondly- that if one fights early, before such balance has occurred- it will result in less negative consequences than if one waits until the threat is crossing a states border. This argues that the Bush administration was justifying its use of force in self-defense.

Subsequently a nation should not use military force against another state if there is only a hypothetical belief of an attack, if it is not yet fully produced, even if nuclear weapons are concerned we should not use preventive measures in whatever circumstances (Mook, 2004). While undesirable, it is understandable that more nations wish to own nuclear weapons, to be strong enough to negotiate at the ‘nuclear club’ (Mills, 2005). This trend towards the proliferation of ‘nuclear nations’ (China to counter-balance USA, Britain, Russia and France; Russia to counter-balance USA, Britain, France and China; India and Pakistan to counter-balance each other; Israel and Iran to do likewise) is a direct consequence of the value attached to nuclear weaponry in the first place. Ironically, the above Nuclear ‘poker game’ can be described as a form of ‘preventive self-defense’. One can only hope that Svarc’s (2006) warning will not materialise: preventative action would promote paranoia and eventually aggression.

A final point, and maybe the most pertinent, is that it all comes down to power.

Why didn’t USA attack USSR during the Cold War despite knowing that USSR was building up stockpiles of nuclear warheads to defend itself against the USA and its Western allies? Why hasn’t the USA attacked North Korea with its nuclear programme? As mentioned before one has to see the strategic argument as well, and in the North Korean case strategy implies that an attack would aggravate a powerful nation such as China (Moon and Bae, 2003). The straightforward explanation would be: power versus power.

All in all, we are in a world that has as much power with “soft” measures as it would have with coercive. One should aim for economic actions and sanctions rather than striving for the hard powers of military coercion (Svarc, 2006). Law is meant to clarify between lawful and unlawful conduct. It is meant to be uninfluenced by the whims of the temporary national leaders of the day. It is meant to rise above the sabre rattling of the military, the spin of the press, and the paranoia of the manipulated public. But, ultimately, law is powerless when it comes to basic collective fear and ‘patriotic’ retaliation. Law is only potent when acknowledged by the powerful. The USA, Russia and China will do what they wish, or more accurately, the Multi-national military-industrial complex will continue to pull the strings. Nevertheless, law’s significance is in its very existence, as a witness, and as a collective conscience. There must be rules. There must be lines not to be crossed. In this way the powerful cannot behave completely freely, even if it is to accuse each other of breaking ‘International Law’. It would therefore seem right that whenever possible, law should come down on the side of peace; and that legitimate ‘self-defense’ is only when there is a clear imminent threat against a sovereign nation’s soil, i.e. ‘interceptive’ self-defense.


Antonopoulos, C., 2008. Force by armed groups as armed attack and the broadening of self-defense, Netherlands International Law Review, 55: 159-180, Cambridge University Press

Ackerman, D.M., 2003. International Law and the Preemptive Use of Force Against Iraq, CRS Report for Congress,

Charter of the United Nations, 26 June 1945 (entered into force 24 October 1945).

General Assembly 1974, Twenty-ninth session

Agenda item 86 ,Resolutions adopted by the General Assembly,3314 (XXIX). Definition of Aggression

Kennedy, D., 2006. Of war and law, Princeton: University Press

Gray, C., 2000. International Law and the Use of Force.

Little, W.,1975. The shorter oxford English dictionary on historical principles, 3rd ed., Clarendon Press: Oxford

Rodin, D., 2006. The Ethics of Preventive War, Paper presented at the annual meeting of the International Studies Association, Town & Country Resort and Convention Center, San Diego, California, USA . 2009-05-25 from

Kaufman, W., 2006. What’s Wrong with Preventive War? The Moral and Legal Basis for the Preventive Use of Force, Ethics & International Affairs, Volume 19, Issue 3,Pages23-38

Crawford, N.C., 2003. The Slippery Slope to Preventive War, Ethics & International Affairs, Volume 17.1

Philippe Sands, International law and the use of force, Written Evidence to Select Committee on Foreign Affairs, (30 July 2005), at 15

Stevens K.R., 1989. Border Diplomacy: The Caroline and McLeod Affairs in Anglo-American-Canadian Relations 1837-1842, Tuscaloosa: University of Alabama Press

Cohen, A., 1995. The Lessons of Osirak and the American Counterproliferation Debate’, in Mitchell Reiss and Harald Müller (eds.), International Perspectives on Counterproliferation, Woodrow Wilson International Center for Scholars p. 73-102

Waltzer, M., 2006. Just and unjust wars: a moral argument with historical illustrations,

Guiora, A.M., 2008. Anticipatory Self-Defence and International Law, A

Re-Evaluation. Journal of Conflict & Security Law, Oxford: University Press

McMahan,J., 2006. Preventive War and the Killing of the Innocent, in The Ethics of War: Shared Problems in Different Traditions Richard Sorabji and David Rodin (eds.). Ashgate

Chomsky, N., 2003. Preventive War ‘The Supreme Crime’ Iraq: invasion that will live in infamy

Luban, D., 2003. Preventive War, Public Law and Legal Theory

Mook, S.C., 2004. Is anticipatory self-defence lawful? Coventry Law Journal

Moon C. and Bae, 2003. The Bush Doctrine and the North Korean Nuclear Crisis, Asian Perspective, Vol. 27, No. 4, pp.9-45



Carl von Clausewitz, On War, translated by Michael Howard and Peter Paret, Princeton:

Princeton University Press, 1984

Grotius, Hugo, The Law of War and Peace, at 1625

de Vattel, Emmerich, The Law of Nations, Vol. IV, at 3

Reference Copied to Clipboard.
Reference Copied to Clipboard.
Reference Copied to Clipboard.
Reference Copied to Clipboard.
Reference Copied to Clipboard.
Reference Copied to Clipboard.
Reference Copied to Clipboard.

Related Services

View all

DMCA / Removal Request

If you are the original writer of this essay and no longer wish to have the essay published on the UK Essays website then please:

Current Offers