Anticipatory Self-Defence and International Law–A Re-Evaluation

View my article, Anticipatory Self-Defence and International Law—A Re-Evaluation, published in the Journal of Conflict & Security Law.

Abstract

Traditional state v. state war is largely a relic. How then does a nation-state defend itself—preemptively—against an unseen enemy? Existing international law—the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373—do not provide sufficiently clear guidelines regarding when a state may take preemptive or anticipatory action against a non-state actor. This article proposes rearticulating international law to allow a state to act earlier provided sufficient intelligence is available. After examining international law this article proposes a process-based “strict-scrutiny” approach to self-defense. Under this approach, the executive will have to convince a court, based on relevant, reliable, viable and corroborated intelligence, that preemptive action is appropriate. This process leads to a check on the power of the executive by placing a judicial check on preemptive action, consequently establishing objective legal criteria for operational counterterrorism.

View a response written by Muge Kinacioglu, Department of International Relations, Bilkent University, Turkey, A Response to Amos Guiora: Reassessing the Parameters of Use of Force in the Age of Terrorism: Pre-emptive Action and International Law.

View another response written by Tarcisio Gazzini, Faculty of Law, VU University, Amsterdam, A Response to Amos Guiora’s Article on Pre-Emptive Self-Defence Against Non-State Actors.

Cross-posted on National Security Advisors.