Two Sides of The Same Coin: From Bush’s Doctrine of Pre-

emptive Self-Defence to Obama’s Preventive Action

Kevwe Mary Omoragbon

Abstract

Following the 9/11 terrorist attacks in the United States, President Bush put the

war of terror on the offensive. On the face of it, this can be seen as an opposition

to the concept of self-defence which is a justification for such attacks under the

UN Charter.

Following on from this, President Barrack Obama during his inauguration referred

to his use of preventive self-defence and re-affirmed the US commitment to the

Geneva conventions.

This article explores the scope of the rules of international law regulating the right

to use force which is the jus ad bellum. It will consider the extent to which the

United States foreign policy in this regard has complied with the provisions of the

UN Charter in light of the rise in terrorist activities. This will be done by examining

both concepts of pre-emptive and preventive self defence and the extent of their

conformity with the UN charter.

Introduction

The prohibition on the use of force can be traced to the end of the First World

War when the League of Nations was established in 1919. Although there was

no express prohibition in the League Covenant, Article 10 encourages States not

to attack one another. It provides that,

Kevwe Mary Omoragbon is a lecturer in the Department of Public and International Law, University of Ibadan, Ibadan, Nigeria.

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The Members of the League undertake to respect and preserve as against

external aggression the territorial integrity and existing political

independence of all Members of the League. In case of any such

aggression or in case of any threat or danger of such aggression the

Council shall advise upon the means by which this obligation shall be

fulfilled. 1

Another attempt was made in the 1928 Kellogg-Briand Pact by fifteen states

which stated that,

The High Contracting parties solemnly declare in the names of their

respective peoples that they condemn recourse to war for the solution of

international controversies, and renounce it, as an instrument of national

policy in their relations with one another.2

Again here, there is no express prohibition on the use of force and the pact only

condemns recourse to ‘war’ and not to ‘force’.3 In other words, it allowed the use

of other types of force so long as it does not constitute a war.4 These two earlier

attempts failed as there was ‘no’ express prohibition on the use of force. They

also failed to provide for the right to self-defence and there were no sanctions

against defaulters. The failure can be attributed to the fact that the US amongst

other states did not ratify the League of nations and only ratified the Kellogg-

Brand pact after making reservations and noting that the US participation did not

limit its right to self-defence or require it to act against signatories breaking the

agreement5.. Abbas has argued that the non-participation of powerful states like

1 Article 10 of 1919 League Covenant2 Article 1 of 1928 Kellogg-Briand Pact3 Martin Dixon, Textbook on International Law (6th edn OUP, Oxford: 2007) 3114 Heiko Meiertons, The Doctrines of US Security Policy (CUP, Cambridge: 2010) 925 The Kellogg-Briand Pact 1928 viewed from site http://history.state.gov/milestones/1921-1936/Kellogg and accessed on 10 September, 2013

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the US and the Soviet Union in an effort to regulate the use of force would not

achieve desired results.6

US Historical Approach To The Use Of Force

The US policy on the use of force was further exacerbated during the cold war

era when it supported Greece and Turkey with funding and military personnel in

1943-7. President Harry Truman’s speech indicated that the US seeks not only to

help other nations but to also give effect to the UN Charter as its ‘custodian’.7 He

stated that:

I believe that it must be the policy of the United States to support free

peoples who are resisting attempted subjugation by armed minorities or by

outside pressures.8

President Eisenhower in 1957 similarly saw the use of force as intervention upon

invitation or the exercise of self-defence as being in accordance with the UN

Charter and stated that,

It would… include the employment of the armed forces of the United

States to secure and protect the territorial integrity and political

independence of such … nations, requesting such aid, against overt

armed aggression from any nation controlled by international

communism.9

After the Cold War, President Ronald Reagan upheld Truman’s principles and

stated that support for freedom fighters is self-defence in line with the UN

Charter. President George Bush senior and President Clinton adopted similar

doctrines on the use of force though each doctrine varied in its scope of

6 Ademola Abass, International Law: Text, Cases, and Materials (OUP, Oxford: 2012) 3507 M. reisman, ‘The United States and International Institutions’, (2000) 41 Survival, 63-80 in Heiko Meiertons, The Doctrines of US Security Policy (CUP, Cambridge: 2010) 1078 Department of State Bulletin, 19 (1947), Suppl., p.8319 Public Papers of The presidents, Dwight D. Eisenhower, 1957, vol. V, p.13

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intervention. President Bush also made reference to the Truman doctrine in his

speech on May 1, 2003 when he declared that the war with Iraq was over.

The UN Charter on the Use of Force

The United Nations Charter in its Article 2(4) expressly prohibits the use of force

by States. It 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 any other manner inconsistent with the purposes of the United

Nations.

Some States have attempted but failed to justify their use of force to recover

what they claimed to be their own territory. In 1982, Argentina invaded the

Falkland Islands in order to seize them back from the United Kingdom whose title

to the territory it rejected.10 Iraq also invaded Kuwait in 1990 based on the claims

of its pre-colonial title that the territory belonged to it.11 These invasions were

strongly condemned by the international community; the actions of Argentina and

Iraq were inconsistent with the duty under Article 2(3) of the UN Charter to settle

disputes, including territorial and boundary disputes, peacefully.12

The use of force is only lawful in two circumstances- when it is authorized by the

Security Council under Article 42 of the UN Charter and in self-defence under

Article 51. Article 42 is not contentious as it is very clear when the Security

Council gives such authorization. This paper will take a cursory look at Article 51

and how the application of self-defence has played out in practice since the 9/11

terrorist attacks in the US.10 1982 UNYB 132011 1991 UNYB 18912 Christine Gray, ‘The Use Of Force And The International Legal Order’ in Malcolm D. Evans, International Law (3rd edn OUP, Oxford: 2010) 618

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Article 51 of the United Nations Charter and provides as follows:

Nothing in this present Charter shall impair the inherent right of individual

or collective self-defence 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 the Members in the exercise of this right of self-defence shall be

immediately reported to the Security Council and shall not in any way

affect the authority and the responsibility of the Security Council under the

present charter to take at any time such action as it deems necessary in

order to maintain peace and security.

The wordings of Article 51 show that self-defence is only lawful during an armed

attack. The 1987 Declaration on the Non-Use of Force also states that ‘States

have the inherent right of individual or collective self-defence if an armed attack

occurs, as set forth in the Charter of the United Nations’. 13

Over the years, States who have used force against another State have always

asserted that it has been the victim of an armed attack and claimed the right to

self-defence. The controversy centres on the questions of fact as to whether

there has been an armed attack and, if so, which state was the victim. This

difficulty was very evident in the ICJ cases, Cameroon V. Nigeria14 and Iranian

Oil Platforms15.

The former case involved a boundary dispute between Cameroon and Nigeria.

Cameroon claimed that Nigeria had illegally used force against it, and invaded

the Lake Chad area and the Bakassi peninsula thereby violating Article 2(4) of

the UN Charter and the principle of non-intervention. Nigeria replied that it was in

13 Christine Gray, ‘The Principle of Non-Use of Force’ in Lowe and Warbrick (eds), The United nations and the Principles of International Law 1994, 33 at 38.14 ICJ Reports (2002) para 308-24.15 ICJ Reports (2003)

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peaceful possession of the disrupted territory and that any use of force had been

in self-defence. The Court held inter alia that Nigeria was under an obligation

expeditiously and without condition to withdraw its forces from the area which the

court had determined to be Cameroonian territory. The court however, avoided a

decision on the use of force in self-defence as it refused to order Nigeria to make

guarantees of non-repetition claiming that it ‘cannot envisage a situation’ where

either party would fail to respect the territorial integrity of the other.16

Scope of Self-Defence

The scope of self-defence is the subject of disagreement between States as well

as debates between various writers. This largely relates to whether anticipatory

or ‘pre-emptive’ self-defence and protection of nationals are lawful, and the

debates date back to the creation of the United Nations.17

There have been debates on whether Article 51 is an exhaustive statement of the

right of self-defence or whether there is a wider customary law right of self-

defence going beyond the right to respond to an armed attack. Supporters of the

latter view argue that the reference to ‘inherent right’ in Article 51 preserves a

customary law right of self-defence and that such a customary law right is wider

than Article 51 and allows self-defence other than against an armed attack.18

This school of thought argues for a right of anticipatory self-defence and of

protection of nationals abroad. Those against the wide view argue that Article 51

imposes restrictions on the right of self-defence in response to armed attack.

16 ICJ Reports (2002) para 318-917 Christine Gray, International Law and the Use of Force 2nd Ed.2004 Oxford University Press New York18 Id.

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They hold that as the right of self-defence is an exception to the prohibition on

the use of force, it should be narrowly construed.19

Anticipatory self-defence is justified where a state is threatened by another

hostile state and the defensive action taken is proportional to the imminent

danger.20 O’Connell has distinguished between anticipatory and pre-emptive self-

defence21. She argues that while the former is a narrower scope which refers to

response to attacks that are on the verge of occurring while the latter refers to

the use of force to prevent the possibility of an attack. Anticipatory self-defence

has been historically supported from the 1837 Caroline incident to the Tokyo

Military Tribunal in 1941 involving ‘a credible imminent threat and the exhaustion

of peaceful remedies’.

Michael Byers takes a very narrow view point on this issue, and argues that

customary law traditionally recognized a limited right of pre-emptive self-defence

according to that laid down in the “Caroline criteria”22. Under the wordings of

Article 51, Byers argued that “you have the right to self-defence until such time

as the Security Council takes action. And therefore it’s implied that if you have

time to deliberate and go to the Council before you take pre-emptive action, then

you have to go to the Council”. In other words, Byers position is that pre-emptive

self-defence which allows for a right to take pre-emptive action against potential

threats, makes future threats is illegal. He went on to say that in the cases

19 Brownlie 1963 p.25120 Rebecca M. M. Wallace and Olga Martin-Ortega, International Law (6th edn Sweet & Maxwell, London: 2009) 29821 Mary Ellen O’Conell, ‘Lawful Self-Defense To Terrorism’ (2002) 63 U. PITT. L. REV 889-892.22 Michael Byers, War Law: Understanding International Law And Armed Conflict (Grove Press, New York: 2005) 58-60

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envisaged by the Bush doctrine, there is time for deliberation and most

importantly, there is time to go to the UN Security Council.

He further argues that the United States created Chapter VII and the reason that

there’s a limited exception for self-defence is political pragmatism23. He holds the

position that the US constructed a system that was based upon a realisation of

just how serious the consequences of slipping down a slippery rope can be. They

were motivated by the Second World War, by Hiroshima and Nagasaki, by

trenches of the First World War- threats and horrors as big if not bigger than

anything we are facing today. The Charter constraints on the use of force was

the solution they came up with and although you can’t prove it empirically, there

hasn’t been a major interstate war for about sixty years- a remarkable

achievement given the proliferation of arms in the world and the kind of

instabilities that have developed.

Dixon also argues that Article 51 supersedes the old customary rule of

anticipatory self-defence which inevitably permits self-defence only ‘if an armed

attack occurs’.24

Opposed to a narrow interpretation are those who adopt a broader view. A closer

look at the phrase in Article 51 ‘impair the inherent right of self-defence’ has been

said to be an attempt to codify the customary law right to anticipatory self-

defence.25 This broad view goes beyond an imminent attack a futuristic attack

that may only le in the contemplation of the country acting in self defence.

Requirements of Self-Defence

23 ibid24 Martin Dixon, Textbook on International Law (6th edn OUP, Oxford: 2007) 31625 Mary Ellen O’Connell, The Power and Purpose Of International Law (OUP, Oxford: 2008) 173

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Although there is disagreement on the scope of self-defence, all schools of

thought are agreed on its requirements which are: necessity and proportionality.

No action should be taken unless it is necessary to give effect to the right of self-

defence. In other words, if there is no threat of attack and no likelihood of it

occurring it would be demonstrably illegitimate to respond with either force or the

threat of its use using self-defence as a justification. It would be illegitimate

therefore, for a state to threaten to use nuclear weapons against another

particular state if that state was not posing a threat to it.26

The requirements of necessity and proportionality are often traced back to the

1837 Caroline incident, involving a pre-emptive attack by the British forces in

Canada on a ship manned by Canadian rebels, planning an attack from the USA.

In 1837 British troops under the cover of night attacked and sank an American

ship, the ‘Caroline’, in US waters because the ship was being used to provide

supplies to insurrections against British rule in Canada headquartered on an

island on the Canadian side of the Niagara River. The US immediately protested

this “extraordinary outrage” and demanded an apology and reparations. The

dispute dragged on for several years before the British conceded that they ought

to have immediately offered “some explanation and apology”. But in the course of

diplomatic exchanges, Secretary of State Daniel Webster articulated two

conditions essential to the legitimacy of the pre-emptive use of force under

customary international law. In one note he asserted that an intrusion into the

territory of another state can be justified as an act of self-defence only in those

26 Steven Haines ‘Nuclear Deterrence: A Legitimate Strategic Option” Opening the Debate on Trident Replacement: Reasons for and against retaining British Nuclear Weapons, Current Decisions Report No.28, Oxford Research Group November 2005

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“cases in which the necessity of that self-defence is instant, overwhelming, and

leaving no choice of means and no moment for deliberation”27

In another note he asserted that the force used in such circumstances has to be

proportionate to the threat:

It will be for {Her Majesty’s Government} to show, also, that the local

authorities of Canada, even supposing the necessity of the moment

authorized them to enter the territories of the United states at all, did

nothing unreasonable or excessive; since the act, justified by the

necessity of self-defence, must be limited by that necessity, and kept

clearly within it.28

These are customary law requirements which were reaffirmed in the Nicaragua

case and in the Nuclear Weapons Advisory Opinion.29

Delineation of Armed Attack

Article 51 provides that self-defence is permissible in response to an armed

attack. The definition of armed attack is not defined in the Charter and is left to

customary international law. Historically, armed attacks were commonly carried

out through regular state armies. In the Nicaragua case, the ICJ considered that

irregular forces such as armed bands and rebel groups can also carry out armed

attacks against a state.30 In the Nicaragua case, the ICJ used the Definition of

Aggression paragraph 3 (g) to help interpret the meaning of armed attack in

customary international law. It held that an armed attack must be understood as

27 Letter from Secretary of State Daniel Webster to Lord Ashburton of August 6, 1842, set forth in Moore, John Bassett, “A Digest of International Law”, Vol. II (1906),p.41228 Letter from Mr. Webster to Mr. Fox of April 24, 1841, 29 British and Foreign State Papers 1129, 1138 (1857), quoted in Damrosch, Lori, International Law: Cases and Materials (2001) p.92329 Military and Paramilitary Activities In and Against Nicaragua (Nicaragua V. United States 1986 ICJ 14) and Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para14130 Ademola Abass, International Law: Texts, Cases, and Materials (OUP, Oxford: 2012) 365

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including ‘the sending by or on behalf of a state of armed bands, groups,

irregulars or mercenaries, which carry out acts of armed force against another

state of such gravity as to amount to an actual armed attack, or its substantial

involvement therein’.31 However, the court did not believe that armed attack also

included assistance to rebels in the form of provision of weapons or other forms

of logistical support. 32

There are various debates on what constitutes an armed attack, who is entitled to

use the right to self-defence and what point can it be said that an armed attack

has occurred. A literal consideration of the provisions of Article 51 shows that

self-defence does not cover an attack that is likely to occur. However, it can be

argued that if a state waits until an armed attack occurs before defending itself, it

may be too late. A closer look at Article 2(4) shows the prohibition of both the

threat and the use of force. As the exceptions in Article 51 do not include threat,

it can be said that exceptions to the use of force were not intended to cover

threats but actual attack.

Others contend that Article 51 should not be construed so narrowly and that “it

would be a travesty of the purposes of the Charter to compel a defending state to

allow its assailant to deliver the first, and perhaps fatal blow… .”33

To read Article 51 literally, it is said, “is to protect the aggressor’s right to the first

strike.”34 Consequently, to avoid this result, some assert that Article 51

31 Military and Paramilitary Activities In And Against Nicaragua (Nicaragua V. USA), Merits, Judgement, ICJ Reports 198632 Id paragraph 19533 Statement by Sir Humphrey Waldock, quoted by Guy Roberts in “The Counterproliferation Self-Help Paradigm: A Legal Regime for Enforcing the Norm Prohibiting the Proliferation of Weapons of Mass Destruction”, 27 Denver Journal of International Law and Policy 483, 513 (1999)34 Id paragraph 195

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recognizes the “inherent right of individual and collective self-defence” as it

developed in customary international law prior to adoption of the Charter and

preserves it intact.35

Those in support of this view argue that the literal construction of Article 51

simply ignores the reality of the Cold War and other political considerations have

often paralyzed the Security Council. In practice, states have continued to use

force pre-emptively at times in the UN era and the international community has

continued to elevate the legitimacy of those uses under Article 51 by the

traditional constraints of necessity and proportionality.

Martti Koskenniemi, Director of the Erik Castren Institute of International Law and

Human Rights at the University of Helsinki in Finland, said that the right of self-

defence articulated in the UN Charter “should be read rationally against the

useful purpose the rule is intended to serve”36. Koskenniemi argued that the

purpose of Article 51 was to protect the sovereignty and independence of the

state”.37 Therefore that a state that felt its sovereignty and independence to be

threatened by the actions of another country, might be entitled to use force

against that country, even if the country’s hostile actions had not yet risen to the

level of an actual armed attack.

This concept of armed attack requires a significant degree of government

involvement. But the 11 September 2001 terrorist attacks on the World Trade

35 See Generally Waldock, ‘The Regulation of the Use of Force by Individual States in International Law’, 81 Collected Courses (1952–11) 451, at 496–497; D.W. Bowett, Self-Defense in International Law (1958)36 Martti Koskenniemi, ‘Iraq And The “Bush Doctrine” of Pre-emptive Self-Defence’ Crimes Of War Project, August 20, 2002, viewed from site http://crimesofwar.org/expert/bush-koskenniemi.html accessed on September 10, 201337 ibid

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centre and Pentagon have arguably further expanded the notion of armed attack

to cover force by terrorist organizations.38 However, the Security Council only

pronounced the terrorist attack as a ‘threat to the peace’ not an ‘armed attack’.

Prior to 11 September 2001, the use of force in response to terrorist attacks on

nationals abroad had been controversial. The attack on the World trade Centre

and the Pentagon on 11 September brought a revolutionary challenge to the

doctrine of self -defence and a reassessment of the law in this area.39

Bush’s Doctrine of Pre-emptive Self-Defence

In situations where a state is not directly involved in an attack, this will still satisfy

the requirement of an armed attack going by the 1974 definition of aggression by

the General Assembly which states that,

Any of the following acts qualify as an act of aggression:… (g) The

sending by or on behalf of a state of armed bands, groups, irregulars or

mercenaries, which carry out acts of armed force against another state of

such gravity as to amount to the acts listed above (i.e. acts of transborder

military force by state organs), or its substantial involvement therein.40

The response to this new form of aggression by the terrorist attacks on the 11 th of

September 2001 led to the Bush Doctrine of pre-emptive self-defence. Byers puts

it succinctly that state sponsored terrorism of this magnitude constitutes an

armed attack.41 In departing from literal construction of Article 51, President Bush

on June 1, 2002 laid down his doctrine when he stated,

38 Dinstein, 2001 p.192 as cited by Malcolm D. Evans, International Law 2003 Oxford University Press New York39 (2002) 96 AJIL 237, and editorial comments in (2001) 95 AJIL 83340 Definition of Agression by The United Nations General Assembly Resolution 3314 (XXIX) 197441 Michael Byers, ‘Terrorism, the Use of Force and International Law after 11 September’ (2002) 51 International Comparative Law Weekly 401

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The war on terror will not be won on the defensive…. We must take the

battle to the enemy, disrupt his plans and confront the worst threats before

they emerge… If we wait for threats to fully materialize, we will have

waited too long…[O]ur security will require all Americans to be forward-

looking and resolute, to be ready for pre-emptive action when necessary

to defend our liberty and to defend our lives42.

In upholding it’s doctrine on pre-emptive self-defence, the US National Security

Strategy states,

Given the goals of rogue states and terrorists, the United States can no

longer solely rely on a reactive posture. The inability to deter a potential

attacker, the immediacy of today’s threats, and the magnitude of potential

harm that could be caused by our adversaries’ choice of weapons, do not

permit that option. We cannot let our enemies strike first.43

The US argue that it is not realistic to expect States to wait for an armed attack

before responding. Pre-emptive self-defence in this light is exercised contingent

on the mere possibility of an attack in the future.44 This has a potential for

uncertainty and abuse but it received massive support and the action was almost

universally accepted as self-defence. The massive State support for the legality

of the United States claim to self-defence could constitute instant customary

international law and an authoritative re-interpretation of the United Nations

Charter, however radical the alteration from many states prior conception of the

right to self-defence.45

42 President George W. Bush, Graduation Speech at West Point, (June 1, 2002) viewed from site http://georgebush-whitehouse.archives.gov/news/releases/2002/06/20020601-3.html accessed on September 10, 201343 National Security Strategy of the United States September 20 http://www.state.gov/document/organization/63562.pdf acccessed 4 April, 201344 M. REisman, ‘The Past and Future of the Claim Of Preemptive self Defense’ (“007) 100 American Journal of Int’l L. 52545 Malcolm D.Evans, International Law 2003 Oxford University Press New York p.604

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In response to the 9/11 attacks on the United States, the Security Council

unanimously passed Resolution 1368 on 10 September 2001 and Resolution

1373 on 28 September 2001 which expressly recognized the right of self-

defence46. Resolution 1373 provides that States shall,

(b) Take necessary steps to prevent the commission of terrorist acts,

including by provision of early warning to other states by exchange of

information;

(b) Cooperate, particularly through bilateral and multilateral arrangements

and agreements, to prevent and supress terrorist attacks and take action

against perpetrators of such acts…

The specific reference to the requirement of early warning before a State can

take action to quell a terrorist attack supports anticipatory self-defence and does

not justify a pre-emptive attack. Though many States have now accepted this

wide right to self-defence by the United States, this may be only in response to

terrorism, not a general acceptance of anticipatory or pre-emptive use of force.

The military action had to be focused on those individuals believed to be

responsible for the deaths of the nearly 3,000 United States citizens. But if the

United States had singled out Osama bin Laden and Al-Qaeda as its targets, it

would have run up against the widely held view that terrorist attacks, in and of

themselves, do not justify military responses, within the territory of sovereign

countries. The United States therefore adopted a two-pronged legal strategy.

First, it implicated the Taliban. By giving refuge to Bin Laden and Al-Qaeda and

46 UN Security Council Resolution 1368 on 10 September 2001 and Resolution 1373 on 28 September 2001 viewed from site http://www.un.org/News/Press/docs/2001/sc7158.doc.htm and accessed on 10 September, 2013

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refusing to hand them over, the Taliban was alleged to have directly facilitated

and endorsed their actions.47

Questions arise as to necessity and proportionality in the bush doctrine of pre-

emptive self-defence. The United States at the start of Operation Enduring

Freedom warned that the war against terrorism could take years and true to his

words, the bombing campaign against AlQaeda and the Taliban lasted for

several years. In a campaign to prevent future terrorist attacks, it is difficult to

identify an appropriate end to the action, but the longer it continues and the more

destruction it involves, the more difficult it is to argue that it is proportionate.48

If the use of force proves ineffective in deterring terrorist attacks, it is also difficult

to argue that it is proportionate and necessary.49

The United States identified Iran, Iraq, and North Korea as an ‘Axis of Evil’ and

made it clear that it would be prepared to use force against them. But unless

these States can be shown to have been involved in the terrorist attacks on the

World Trade Centre or in planning future, imminent attacks, this seems to be

stretching the pre-emptive self-defence to an extreme.50

Once an armed attack has come and gone and there is no continuing or

immediate threat, there is nothing to stop the country that has been attacked

from asking the United Nations Security Council to respond. By expanding the

scope of situations where countries can use force without Security Council

authorisation, any extension to the right of self-defence necessarily decreases

the frequency with which the Security Council is called upon to act. The United 47 Id p.60648 Id p.60549 Malcolm Evans p. 60450 Id

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States by pushing for this and other extensions to the right of self-defence, not

only increases its own freedom to act, it diminishes the role of the United

Nations. A pre-emptive attack which takes place too early might be said to be an

act of aggression. It also puts itself at the risk of retaliation which will further

threaten global order.

In December 2004, UN Secretary General’s High Level Panel on threats,

Challenges and Change, a group of sixteen former prime ministers, foreign

ministers and ambassadors (including Brent Scowcroft, who served as National

Security Adviser to President George H.W. Bush), presented its authoritative

response to the US president’s claim:

The short answer is that there are good arguments for preventive military

action, with good evidence to support them, they should be put to the

Security Council, which can authorize such action if it chooses to. If it does

not so choose, there will be, by definition, time to pursue other strategies,

including persuasion, negotiation, deterrence and containment- and to visit

again the military option.

For those impatient with such a response, the answer must be that, in a

world full of perceived potential threats, the risk to the global order and the

norm of non-intervention on which it continues to be based is simply too

great for the legality of unilateral preventive action, as distinct from

collectively endorsed action, to be accepted. Allowing one to so act is to

allow all.51

51 Report of The Secretary General’s High Level Panel on threats, Challenges and Change 2004 viewed from site http://www.cfr.org/international-organizations-and-alliances/report-secretary-generals-high-level-panel-threats-challenges-change-2004/p22331 accessed on 10 September, 2013

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From Bush’s Pre-emptive to Obama’s Preventive Self-Defence

Initial steps taken within days of President Barrack Obama’s inauguration

seemed to suggest that he will depart from President Bush’s policies. He issued

Executive Orders closing the Guatanamo Bay, he re-affirmed the US

commitment to Article 3 of the Geneva Conventions and the humane treatment of

detainees as well as reviewing detention policy options.52 These Orders only

refer to the law of war not to the law which addresses when war may be waged.53

President Barrack Obama has advanced the Bush policies on pre-emptive self-

defence using armed conflict to justify its measures against terrorism. This is

evident in attacks on Al Qaeda in Pakistan and Afghanistan and the killing of

Osama bin Laden in May 2011.

Christopher argues that the absence of an imminent attack could still justify

targeted killings under self-defence. Beres also supports assassinations in self-

defence so long as it is not against the territorial integrity or political

independence of another state.54 This is contentious if there is no evidence of

future attacks that can only be prevented by killing. In the case of Osama bin

Laden, the US may argue that his death was justifiable as he posed an imminent

threat but it only opens up a can worms as his loyalists are bent on avenging the

death of their leader. Only minimal force should be used in self-defence in

52 See Executive Order No. 13,492, 74 Fed. Rg. 4897-99. See also Article 3 of the Geneva Convention on The Treatment of Prisoners of War. 53 Tai-Heng Cheng and Eduaras Valatis, ‘Shaping An Obama Doctrine of Preemptive Force’54 Lois Rene Beres, ‘After Osama Bin Laden: Assasination, Terrorism, War, and International Law’ (2010) 44 Case W. Res. J. Int’l L. 93.125

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circumstances and absolutely necessary. This minimal force will not in any way

amount to a legal right to kill.55

Before his election, President Obama stated that ‘the preventive use of force may

be necessary, but rarely’. However, he stated that he will not hesitate to use

force unilaterally if necessary, to protect the American people.56 Shortly

afterwards, vice president Joe Biden declared that, ‘we’ll strive to act

preventively, not pre-emptively, to avoid wherever possible the choice of last

resort between risks of war and the dangers of inaction’.57 It can be seen that

although the Obama administration uses the word ‘preventive’ instead of ‘pre-

emptive’, however, the outcome of his actions can be seen as advancement of

Bush’s doctrine and both concepts have the same effect.

Sofaer attempted to distinguish between preventive action and pre-emptive

action. He claimed that preventive action seeks to counter threats before they are

imminent, are less likely to occur and could be avoided through diplomacy. On

the other hand, Sofaer followed Daniel Webster’s pre-emptive action which is

taken when a government has ‘a necessity of self-defence, instant,

overwhelming, leaving no choice of means, and no moment for deliberation.’58

A cursor look at the second definition seems to suggest that an armed attack is

about to take place and is more or less anticipatory not pre-emptive. This is an

attempt to play on words and a critical look on Bush’ pre-emptive doctrine goes

55 Vaughan Lowe, ‘Clear and Present Danger: Responses To Terrorism’ (2005) 54 Int’l & Comp. L. Q. 185. 19256 Barrack Obama, ‘Renewing American leadership’, (2007) 86 For. Aff. 2-16 in Heiko meierton, The Doctrines of US Security Policy (CUP, Cambridge: 2010) 22757 Joe Biden, Speech at the 45th Munich Security Conference, 7 February 2009 http://www.securityconference.de/konferenzen/rede.php last visited April 9, 201358 Abraham D. Sofaer, ‘The Best Defense?: Preventive Force and International Security’ (2010) 89 Foreign Aff. 109,111

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far beyond this as there was no clear evidence on an imminent attack. It at best

appears that preventive and pre-emptive action seeks to counter threats in the

future and still remains two sides of the same coin. Meiertons uses the words

preventive or pre-emptive self-defence interchangeably where there is no

imminent armed attack.59 Indeed it can be seen as an American doctrine which

had been applied prior to the Bush administration.

Conclusion

Indeed the US ideology on self-defence is part of US foreign policy across

several administrations even before George Bush. They have been given

different names but it was not until the terrorist attacks of 9/11 that the doctrine of

pre-emptive self-defence received prominence under the Bush administration.

Although Obama used a different concept, his doctrine of preventive action

technically has the same effect and is more or less two sides of the same coin

with Bush’s pre-emptive action.

This paper therefore supports the position that has been put forward by writers

such Michael Byers who believe that pre-emptive or preventive self-defence is

going beyond the provisions of the UN Charter. If pre-emptive or preventive self-

defence is internationally supported and endorsed by the UN Security Council, it

will create a law that may lead to grave consequences in the near future. Many

had predicted that Obama would abandon Bush’s policies in handling terrorism.

However, recent events show that Obama has further advanced Bush’s policies

by relying on self-defence in attacks on the Taliban and Al Qaeda. Any measure

59 Heiko meierton, The Doctrines of US Security Policy (CUP, Cambridge: 2010) 183

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taken in self-defence to ward of threats must meet the requirements of necessity

and proportionality to remain legal. The international community cannot condone

the use of self-defence beyond that anticipated in the UN Charter. It may also be

high time to review the extent of the use of self-defence in light of increased

terrorism and on the concept of imminence but until then, no states can only act

within the bounds of the law. Once the United States is given permission to act in

pre-emptive self-defence, other States will attack the United States also claiming

this right of self-defence which may even lead to a Third World War. This we

cannot allow to happen. The United Nations Charter must be strictly complied

with as it overrules every other form of customary law interpretation. The UN

Security Council still remains the purveyor to which recourse must be sought to

assert self-defence.

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