Terrorism Prevention and the Right of Preemptive Self-Defense

• Author: Jaemin Lee
• Position: Associate Professor of Law, Hanyang University, Seoul, Korea. LL.B./ Ph.D. (S.N.U.)
• Pages: 291-310

Page 291

1. Introduction: Right of Preemptive Self-Defense in the Era of Surging International Terrorism

The concept of right of self-defense has long been recognized under international law. In general, its legitimacy and necessity have been rarely challenged and almost universally accepted by states. The actual application of the concept to a specific situation, however, almost always has led to fierce confrontation among interested parties regarding whether the international situation at issue indeed warrants exercise of the right of self-defense. This is mainly caused by a fact-specific and case-specific nature of the concept. Therefore, when a "prospective element" is added to this already laden and fiercely debated concept, and thus when the debate is about whether an uncertain future event may authorize the exercise of the right of self-defense, the issue inevitably invites further complication.

Apparently, this seems to be what is going on with respect to the concept of so-called "preemptive self-defense." The preemptive self-defense (or anticipatory self-defense) is generally understood to be an expansion of the traditional right of self-defense. It appears that the issue of preemptive self-defense first appeared in 1967, when Israel initiated military operation against Egypt based on intelligence that its Arab neighbors were allegedly planning to attack Israeli military positions. Israel again resorted to preemptive self-defense in 1981 by raiding and destroying a nuclear power facility in Iraq, also based on the information that Iraq was allegedly engaged in the development of nuclear weapon that could be used against it. Given the fact that the 1981 raid was not triggered by the information of imminent attack as shown in 1967, the aerial raid Page 292 fomented more controversy over the issue of preemptive self-defense and its scope.

Similar logic was also adopted by the United States when it was contemplating an invasion of Iraq in 2003.¹ On March 20, 2003, the Bush administration initiated a military operation against Iraq by asserting Iraq's alleged possession of Weapons of Mass Destruction ("WMD") and its future threat to the security of the United States. By going forward with the concept of preemptive self-defense, the Bush administration apparently tried to keep the U.N. Security Council at bay, and resorted to unilateral military operation against Iraq.² Basically, the United States argued that the invasion was critical to protect its people and interest both at home and abroad, before an actual wave of attacks reaches the U.S. borders, which was then known as the "Bush Doctrine."³ Despite the failure to locate a WMD and waning support for the war, this doctrine (or its equivalent) seems to be still maintained by the United States.⁴ In any event, the U.S. action in Iraq and the underlying doctrine in the post-September 11 era have triggered more debates in the international community on the issue of right of preemptive self-defense. In spite of the importance to build and maintain international consensus on this issue, unfortunately there does not seem to be a reliable guideline for states on this issue.⁵ Page 293

Worse yet, the issue of preemptive self-defense is getting more complex as it stands currently; the preemptive self-defense is now being discussed in the context of terrorism prevention, which invites another layer of volatility and political sensitivity among various countries. It is imperative that the international community should come up with a cooperation network to cope with the surging international terrorism, and that individual states' right to protect themselves from terrorism should be permitted within the ambit of international law. Due to the unique characteristics of threats posed by terrorism and the lack of legal coherence in defining and identifying terrorism, however, preemptive self-defense in the context of terrorism prevention apparently implicates more elements to consider and probably requires a different approach. It is well known that various international organizations, including the United Nations, have been mobilizing collective efforts to deal with the surge of international terrorism.⁶Nonetheless, it is also incumbent upon the international jurists to contemplate relevant legal issues arising from preemptive self-defense, coupled with its unique characteristics, in the course of terrorism prevention.

Furthermore, this issue is not merely confined to U.S. global counter-terrorism effort or Middle East policy. Given that terrorism also stands ready to be spread in some regions of Asia and that preemptive self-defense has been indeed mentioned in the context of recent conflicts in the region,⁷ this issue could be easily raised in the backyard of Asia as well.

In a sense, the concept of right of preemptive self-defense in the context of international terrorism is bound to be complex; as both preemptive self-defense and international terrorism are loaded with volatility and political sensitivity on their own, it becomes further complicated when the two are combined. With these issues in mind, this paper attempts to briefly examine relevant issues of preemptive self-defense in the context of terrorism prevention and to offer a guideline in approaching this issue.

2. The Framework under the U N. Charter

International law has divided situations surrounding a war into three categories: jus ad bellum (addressing the right to use force), jus in bello (addressing how to use force during a conflict), and jus post bellum (addressing cessation and postludes to war).⁸ Page 294

Among these, self-defense is related to the first category, where the core issue is whether a war at issue is legitimate or just. With the danger of over-simplification, an argument could be made that a state's military operation adopted only for the purpose of coping with terrorist attacks and confined only to the boundary to protect its people and property may fall under one of the situations of a legitimate or just war.⁹ If that is the case, one could further argue that a state or an entity that supports or sponsors such terrorist attacks could become a legitimate target of self-defense to the extent the exercise of the right is limited to the specific threat thus identified. The general characterization as such may be able to get consensus easily, but the actual application of the concept in a particular context is far from simple.

Right of Self-Defense under Customary International Law The right of self-defense has long been recognized under customary international law.¹⁰As is well known, the Caroline case provides a classic guideline for the right of self- defense under customary international law. This case arose from a dispute between the United States and Great Britain over an 1837 incident, where British forces, claiming self-defense, seized an American steamboat transporting supplies to a Canadian rebel group, and destroyed it. The self-defense jurisprudence established from this case is to the effect that exercise of self-defense is limited to instances in which the "necessity of self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation."¹¹ In other words, any use of force in self-defense must respect the principles of necessity and proportionality; necessity restricts the use of military force to the attainment of legitimate military objectives,¹² and the proportionality requires the countermeasure adopted to be proportional to the threat posed.

This jurisprudence has been widely accepted as a guideline in examining a dispute over self-defense. One could thus argue that that the Caroline formula has established itself as customary international law. The Caroline formula is also believed to have been reflected in the letter and spirit of the U.N. Charter, where the right of self-defense is explicitly provided for the member states.¹³ Thus, it appears that any discussion on the issue of self-defense should be based on the Caroline formula. Page 295

U.N. Charter The U.N. Charter imposes a strict rule against the use of force by member states. As the International Court of Justice ("ICJ") in Nicaragua v. United States articulated, the U.N. Charter is based on the fundamental principle outlawing the use of force in international relations except in rare circumstances.¹⁴ As such, Articles 2(4) and 51 of the U.N. Charter were introduced to prohibit the use of military force except when necessary to repel an "armed attack." Although the use of military force with the authorization of the Security Council under Chapter VII of the U.N. Charter also constitutes an exception, as far as a state's unilateral decision and action for military operations is concerned, Articles 2(4) and 51 are the two relevant provisions in the U.N. Charter. To begin with, Article 2(4), as one of the principles of the U.N. Charter, provides that:

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. (emphasis added)

Although Article 2(4) does not contain an exception in the provision itself, a critical one is provided in Article 51 of the U.N. Charter, which provides that:

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. Measures taken by Members in...