Finance, Music and Worldly Thoughts: THE DOCTRINE OF PREEMPTIVE STRIKE: MY RESPONSE TO THE IRAQ WAR WRITTEN IN 2005

'Horrible war, amazing medley of the glorious and squalid, the pitiful and sublime, if modern men of light and leading saw your face closer, simple folk would see it hardly ever.'

Winston Spencer Churchill.

INTRODUCTION

Since the 9/11 attacks, the doctrine of 'pre-emptive' self-defence-has once again become a point of international contention.1 President Bush asserted - in a speech to West Point graduates - that America reserves the 'option' of anticipatory or 'interceptive' attack to counter threats to US national security, political primacy and military power.2 As the basis of its National Security Strategy, the Bush administration claims that international law has for centuries recognised such a right of ‘interceptive’ self-defence to stop an imminent attack on US forces or territory. The NSS, however, endorses the _additional concept of 'preventive' self-defence, which would enable US forces to preempt 'potential' aggression, meanwhile furthering the President’s policy of 'proactive counter-proliferation'. The elasticity of 'pre-emptive' or preventive self-defence would entitle the

to prosecute war for the purpose of eliminating 'rogue' regimes and to pre-empt their capacity to design or, purportedly, launch weapons of mass destruction3. The political – if not the legal - goal of such a move is to wage the 'war on terror' and to respond to novel threats in the post-Cold War era.

In light of the UN Charter, therefore, the legal issue is clearly whether an expanded notion of self-defence is consonant with the international norm of non-aggression provided for by article 2(4).4 This necessarily requires an examination of the ‘limits’ of the valid exception to article 2(4), namely article 51, which provides for an inherent right of individual and collective self-defence.5 With respect to the 'inherent' customary right of self-defence, the Caroline case outlines the locus classicus formulation of 'interceptive' self-defence.6 Nonetheless, application of the rule to collective security is still highly problematic.

Although my position is not uncontroversial, I will argue that the Caroline case appears to reflect customary international law in respect to a limited right of individual, 'interceptive' self-defence. As such, the US may at least have demonstrated the legal necessity of attacking al-Qaeda in Afghanistan.7 I will, nevertheless, contend that international states' practice and opinio juris do not attest to a right of wider 'unilateral' aggression against 'potential' rivals or rogue states. On the contrary, I will maintain that the

is required to submit a report to the Security Council under article 51. Moreover, the stated aims of the Charter and customary law are to contain unlawful aggression, to ensure that a State's response to a 'threat' is necessary and proportionate and to enlist international and SC cooperation in pursuit of collective security. The primary object and purpose of the UN Charter is thus to maintain international peace and security. In this way, the Charter proscribes sovereign states' resort to reprisal or retaliation, as an unlawful counter-measure.9 Indeed, I will submit that the notion of preventive or 'pre-emptive' self-defence is a misnomer because it is not a valid 'defence' against an 'actual' or constructive armed attack.

Consistent with Chapter VII of the Charter, one policy alternative in meeting new threats to international peace and security is the High-Level Panel's proposal of a 'Collective Responsibility to Protect'.10 Similar to Secretary of State, Webster's analysis in Caroline, the High-Level Panel establishes precise criteria to identify and to contain threats to international security. Through the UN peacekeeping framework, international peacekeeping forces would cooperate with specialist agencies and monitoring organisations to control violent militarism and humanitarian emergencies. Although the propsal is unspecific and detracts from states' sovereignty, I will argue that the High-Level Panel report has raised a valuable consideration for the international legal order. The emphasis remains, however, on lawful self-defence within the context of the international community of nations.

THE PRESUMPTION AGAINST FORCE

Any analysis of the use of force, including action in self-defence, must begin with the UN Charter's presumption against unlawful aggression in article 2(4). 11 Article 2(4) recognises the principle of non-aggression in international relations, as well as the sovereign independence of states. As the Charter indicates throughout its text, moreover, the SC primarily assumes the capacity to maintain international peace and security. 12 In consequence, states parties to the Charter - now sovereign and equal members of the international community - are required to abide by decisions of the SC and to seek exclusively peaceful means in settling disputes between their governments.13

Evidently, however, article 51 preserves an inherent right of self-defence in response to an 'armed attack' .14 Thus, the International Court of Justice has definitively interpreted the adjective 'inherent' to refer to a pre-existing, parallel right of self-defence under customary internationallaw.15 In this customary sense, one must determine the limits of article 51 with regard to the critical elements of state practice and opinio juris.16 It must be emphasised, therefore, that customary law does not operate upon the 'Treaty-law Plane'.17 Though not a little ambiguous, opinio juris refers to an attitude or 'belief' concurred in by the majority of states that a principle is legally binding upon the international community.I8 Regrettably, the abstract 'normativity' of opinio juris may beg the question where the limits of self-defence lie. At this stage, consequently, one must turn to customary law itself for a definition of an armed attack and the valid means repel it.

THE CAROLINE INCIDENT: WHITHER INTERNATIONAL CUSTOMARY LAW?

Admittedly open to scrutiny, the Caroline incident has otherwise elicited a scholarly ‘consensus' about the legality of 'interceptive' or anticipatory self-defence.19 Decided in 1837, the Caroline case developed out of cross-border incursions by American irregulars during the Canadian Rebellion. Canadian and American insurgents had attacked British shipping from an American vessel, the Caroline. British regulars seized the Caroline from Port Schlosser in American territory, "fired her" and sent the ship over Niagara Falls. In all, two American were killed. Confronted by a determined British presence, Secretary of State, Daniel Webster conceded that

Britain

may act to intercept an unlawful attack upon British assets within foreign territory. Enunciating the proportionality principle - or principle of 'commensurability' - Webster indicated to the British representatives, Fox and Lord Ashburton that

Her Majesty's Government must show... a necessity of self-defence, instant"overwhelming, leaving no choice of means, and no moment of deliberation.20

Dino Kritsiotis has reiterated that Webster's statement strictly enjoins military action,which is necessary and proportionate to the threat it seeks to redress.21

Despite Webster's philosophic clarity, confusion abounds due to the interchangeability of the terms interceptive, anticipatory and 'pre-emptive' self-defence: it is submitted that this has added grist to the mill for the NSS option of preventive war. For example, leading commentator, Yoram Dinstein and Australian, Angus Martyn understand 'interceptive' self-defence to operate in a precise context or 'scenario': interceptive defence entails "cutting off' or repelling an immediate threat of attack.22 The instance most frequently cited is that of Pearl Harbour whereby Japanese forces previously massed to attack the US military base?23 Under the Dinstein analysis, therefore, US forces would be justified in destroying Japanese aircraft before they reached their target. The secondary notion of 'anticipatory' self-defence was addressed by the ICJ in the Nicaragua case.24 While the legality of the doctrine was not itself justiciable, the ICJ uttered dicta that US soldiers might attack foreign irregular military forces if the US could prove acts of terrorism with the irregulars' 'substantial involvement therein' .25 Final1y, critics of the Bush administration's foreign policy of NSS preventive missile defence have construed 'pre-emptive' strikes as tantamount or preludial to a strategy of perpetual war.26

UNILATERALISM: ODE TO PERPETUAL WAR?

Since the Caroline case,

foreign policy has sub-served "realist" assumptions about power and aggression.27 Identical to theories of legal "dualism" and international "positivism", a series of doctrines have influenced - even determined - President George W Bush's NSS. Comprising the Monroe, Roosevelt, Truman, Eisenhower, Weinberger, Schultz and Powell doctrines, US strategy has sought to meet threats of force by 'striking first' with the concentration of 'overwhelming' armed force.28 This strategy informs, generally, the NSS notion of Preventive War and the US Military's "shock and awe" tactics in relation to Iraq 2003.29

At the end of the Cold War, consequently, it is submitted that the NSS has assumed the form of international relations theorist, Hans Morgenthau's theory of 'Oppressive Realism'.30 Pre-supposing the inherent aggression of rival powers in a world of international 'anarchy', Morgenthau's analysis permits the

to meet the arrogant "posturing" of lesser powers with overwhelming military might. Literally Morgenthau's views and - it could be argued - the NSS enable the

government to exercise unilateral force under any possible scenario. Justifying, therefore, the invasions of Afghanistan and of Iraq, the offensive realism of the NSS rationalises preemptive strikes upon North Korea's and Iran's nuclear facilities, and upon terrorists "harboured" by Syria (within Syria itself and in the Beqaa Valley).31 With all due caution, it is submitted that such an extreme and ill-considered response may lead to a climate of Perpetual War, and to subversion of the international legal order.

A CRITICAL RESPONSE TO UNILATERAL ACTION

Historically, as well as legally, the NSS can be proven to be short-sighted with respect to a preemptive response - this response is neither original nor untested. In fact, the Bush administration has ignored crucial

policy analysis in the document, NSC 68.32 A top secret communique to President Eisenhower on the eve of the Cold War, NSC 68 /unequivocally rejected the option of military preemption. Here, it must be noted that NSC 68 was the most important assessment of the Cold War in that it launched the policy of 'containment'.

The security analysis read that doctrines of 'preventive war' and of preemption were equally unacceptable, as posing unsurpassed threats to the survival of the

and to the 'regenerative capacity' of Western Europe in the event of a nuclear war. The top secret report stated that preemption 'premised' the instant withdrawal of a potential enemy (ie the Soviet Union), and presumed the instant destruction of a rival's ability to wage war As the analysis indicated, however, no such premise could hold in the midst of a global ideological conflict involving nuclear weapons. Apart from the consideration that preemption would be 'morally repugnant' to the majority of the American people, the doctrine of preemption would not serve as a security 'expedient'. Nevertheless, the human casualties and political and legal fallout would destroy irreparably the

effort to contain communism and Soviet aggression. Citing NSC 68:

the shock of responsibility for a surprise attack would be morally corrosive. Many would doubt that it was a "just war" and that all reasonable possibilities for a peaceful settlement had been explored in good faith. Many more, proportionately, would hold such views in other countries, particularly in Western Europe and particularly after Soviet occupation, if only because the Soviet Union would liquidate articulate opponen It would, therefore, be difficult after such a war to create a satisfactory international order among nations Victory in such a war would have brought us little if at all closer to victory in the fundamental ideological conflict.

These considerations are no less weighty because they are imponderable, and they rule out an attack unless it is demonstrably in the nature of a counter-attack to a blow which is on its way or about to be delivered.33

DEFINITION OF 'WIDER THREAT'

In the words of Anthony Sofaer,

Technology should increasingly enhance security at key locations and for critical infrastructures. But the

remains target rich, and extremely vulnerable, because it is a large, thriving, open society unwilling to compromise its fundamental freedoms for security. For these reasons, the

has advanced, more forcefully than ever, the need for pre-emptive actions.34.

Over the passing months of 2003, the Bush administration specified threats to

border from Iraqi WMD. Having repaired his facilities after the First Gulf War, the assumption was that Saddam Hussein had refused to dispose of his fledgling nuclear program.

In Bowett's estimation,

the difference between the two forms of self-help lies essentially in their aim or purpose. Self-defence js permissible for the purpose of protecting the security of the state and the essential rights - in particular the rights of territorial integrity and political independence - upon which that security depends. In contrast, reprisals are punitive in character: they seek to impose reparation for the harm done, or to compel a satisfactory settlement of the dispute created by the initial illegal act, or to compel the delinquent state to abide by the law in the future35.

As Anthony Sofaer demonstrates, for fear of global technological threats to US security, there was a certain legal acceptability to US attacks on Al-Qaeda and the Taliban in Afghanistan.36 As Sofaer would acknowledge, it is doubtful whether the Bush administration was in fact dealing with a 'rational' enemy capable of reasonable foresigh or of comprehending the true value of life and death. Since the Taliban had continually rebuffed US efforts to reign in Al-Qaeda's terrorist operations, it was arguably necessary to attack Afghan soil. To coordinate an effective response, the

was obliged to target WMD facilities or base-camps that may conceivably produce those weapons. In line with the language of the NSS, it could be maintained that the Taliban had for too long 'harboured' Osama bin-Laden and his cohorts, being either oblivious to or, tragically, complicit in the World Trade centre attacks of 9/11.37

The gravest difficulty, however, arises with Sofaer's purported 'consensus' around a new doctrine of 'active prevention, preemption, and retaliation'. Belligerent in the face of becoming the 'Hamlet' of nations, Sofaer has alighted upon Secretary of Defense, Donald Rumsfeld's aphorism that the 'best, and in some cases, the only defense is a good offense'.38 Far from securing the impregnable defenses of all 'civilised nations', however it is submitted that Sofaer's arguments would rather entice terrorists - such as Al-Qaeda - to counter hostile US policy by destroying US resources or assets and by seeking 'target rich' locations for further terrorist atrocities. In so doing, fanatical non-state actors would translate Sofaer's fears into a self-fulfilling prophecy: instead of being a matter for criminal law enforcement, global terrorism would become an issue of national survival. This doomsday scenario, nevertheless, plots the trajectory of

foreign policy from the

Cold War to the NSS.

CUSTOMARY LAW AND PREEMPTIVE SELF-DEFENCE: WHAT

DOES 'INHERENT' MEAN? REFERENCE TO THE REPORTING REQUIREMENT

Hence, the analysis of customary law comes full circle. Regarding an 'inherent' right to individual or collective self-defence, the International Court of Justice holds that article 51 preserves the 'pre-existing' customary law of self-defence39. The ICJ’s recognition of such a right has far-reaching consequences for the concept of preemptive self-defence, specifically with regard to an appropriate response to an unconventional armed attack.40 The ICJ noted that the customary right to self-defence incorporates or retains the juristic elements of customary international law: a) State practice and b) Opinio juris sive necessitatis.41

In contradistinction to the NSS, the leading case of Nicaragua clarifies that states cannot interfere unilaterally in the affairs of other nations.42 In regard to any threat (comparable to the threat of WMD), UN members are ordered to inform the SC of forcible measures they intend to take against maverick states.43 Moreover, SC action will a priori terminate any unilateral response.44 That is to say, the language of article 51 has clear legal significance for the determination as well as provision of collective security.45 Under article 51, the 'victim' must declare itself as being a) under armed attack and b) must request assistance.46 Greig reiterates that article 51 expressly conditions the legality of collective self-defence upon a 'mandatory' report to the Security Council.47

In any event, the ICJ held that in the case of 'collective' self-defence,

the Court finds that in customary international law, whether of a general kind or that particular to the inter-American legal system, there is no rule permitting the exercise of collective self-defence in the absence of request by the State which regards itself as the victim of an armed attack. The Court concludes that the requirement of a request to the state which is the victim of the alleged attack is additional to the requirement that such a state should have declared itself to have been attacked.48

In certain respects, on the other hand, custom is ambivalent about the actual, as opposed to the legal, use of force.49 Thus reflecting upon the 'provenance' of particular norms, Judge Rosalyn Higgins has criticized more abstract, 'rule-based’ assumptions of international customary law50. Preferring the evidence of states' 'practice' to strict legalism, Higgins cites article 38(1) of the ICJ Statute as evincing custom in the

'community as a whole' .51 Under Higgins' analysis, the NSS would hold a certain currency with respect to threats of WMD. Suggestive of the dispute between the

and the ICJ in

Nicaragua

, Higgins cautions:

It is an admission of an uncertainty at the heart of the international legal system. I do not mean that there are uncertainties about what particular norms provide (which there may be), but about how we identify norms52.

At the same time, however, Friedmann has pointed to the evolving 'intemational law of cooperation’.53 Thus, nations cannot easily rely on ‘changed circumstances' of local custom or practice to be absolved from their jurisdictional obligations.54 As the Israeli Wall case indicates, furthermore, the ICI will adjudge state practice by necessary elements of law in accordance with states' fundamental obligations under custom and the Charter55. Though custom arguably does not entail absolute equality of practice, it is considered to be consistent with, indeed demonstrative of the fundamental norms of the UN Charter.56

Further, the Nuclear Weapons-case clearly requires a proportionate respon'se based upon the reporting requirement under the Charter.57 Reaffirming article 2(4), the majority of the ICJ held that article 51 was subject to 'inherent' restraints.58 Recalling customary obligation, states must use 'proportional' force meeting the laws applicable in armed conflict. Although the majority were unable to find that there exists a 'universal comprehensive prohibition as such' upon the deployment of nuclear weapons in valid self-defence, the majority nonetheless acknowledged precepts of international, humanitarian law as well as the erga omnes norm of non-aggression.59 As Brierly explains, proportionality comprehends traditional jus in bello, while necessity promulgates the rule of jus ad bellum.6o Of course, opinio juris as announced by the ICJ must be backed up by or 'conjoined' to illustrative state practice.61

This practice requirement is adequately fulfilled, it is submitted, in the vast accretion of state practice since the Charter was adopted in 1945.62 The evidence adduced for this position might be characterized as three-fold: juridical, political and moral. Turning to this evidence, the ICJ has passed a flurry of decisions which prohibit aggression of any type against sovereign independent nations.63 These specifically prohibit action that the domestic government claims to be in the national interest or necessary to counter the military capacity of a foreign power, even though there is no armed attack.64 Second, politics do matter: states, including the inter-American states (among which figures the US) have signed regional instruments from the Pact of Havana to the Rio Treaty in order to propound and enforce a universal as well as regional norm of non-aggression. 65 As with the Helsinki Final Act, this norm purports to limit the threat of force by invoking collective security arrangements for the enforcement of international order. Finally, according to Sir Hersch Lauterpacht, there is the point where the two streams - legal and political - 'bisect' and cross-fertilize relevant practice - through the prism of opinio juris.66 Since 'widespread' practice and normativity do not bifurcate, opinio juris perforce excludes the concept of 'preemptive self-defence'. Through logical entailment of widespread practice, one must conclude that the term, preemptive self-defence is a legal (or il(legal)!) misnomer: by definition, unilateral action is incommensurate to the Charter.

SELF-DEFENCE THE GRAVEST EXCEPTION TO USE OF FORCE: NO RIGHT OF PREEMPTIVE ATTACK - HOWEVER, NOTION OF 'CONSTRUCTIVE' ATTACK

As a cardinal norm of the UN system, self-defence is exceptionally limited: that said, there are alternative intellectu approaches to the doctrine of self-defence.67 For example, Michael Bothe has shown that States' unilateral use of force may constitute an 'authorised' exception to the presumptive rule of article 2(4) in the form of responding to an actual or 'equivalent' armed attack upon State sovereignty68. As Bothe suggests,

however, the UN Charter cannot logically trespass beyond these three alternatives, if the system of collective and individual security is not to 'snap'.

There are three alternatives. The first of these is an actual armed attack: an enemy power must have launched substantial armed operations upon one's own forces. In this respect, Bothe's prescription considers the authoritative precedent set by

Nicaragua

with respect to the mobilisation of force. Second, an aggrieved state may establish a constructive armed attack. In this instance, international law would sanction force short of an actual attack, should an imminent threat to peace and security allow a victim state to circumvent the strict, 'abstract' prohibition on force. Clearly, however, one must have regard to hegemonic or colonial threats to 'weaker' and 'failed' states69. Alternatively, Bothe adduces the 'blue-water' theory. This theory allows for self-determination struggles in the current and lawful process of decolonisation 70. In a succinct precis of interceptive self-defence, Bothe cautions

... if legal science is to make a meaningful contribution to the ongoing debate on the legitimate use of force in international relations, it must consider specific scenarios. As will be shown, certain variations regarding facts trigger different legal arguments71,

SUMMARY VIEW

It is therefore submitted that the Bush Doctrine - encapsulated_equally by the NSS and by avowed

foreign policy - fails precisely where it aims to succeed. Although President Bush referred to a long-considered right of preemptive response to armed attack, international customary law does not support this proposition. On the contrary, the words of eminent lawyer, Gerry Simpson ring true:

This pre-emptive self-defence argument stretches international law beyond breaking point. The UN Charter, like the rule of law, is meant to replace individualized justice, not mandate it.72 .

'ACCUMULATION-OF-EVENTS' DOCTRINE:

NICARAGUA

SAYS "NO RIGHl OF INTERVENTION"!

In particular, the

Nicaragua

judgment allayed any suspicion that the

could effect regime change in self-defence against an 'ideological aggressor'. In order to establish the legitimacy of Contra actions against the Sandinista government, the

relied on an extended, "acumulation-of-events" view of self-defence. Under this scenario, the

Nicaragua

submitted that Nicaraguan rebels were responsible for cross-border incursions into neighbouring

Costa Rica

and

Honduras

. The US, therefore, attempted to convince the ICJ that they had come to the 'aid' of the region and Nicaragua by preventing 'continuing' attacks from Nicaragua's territory The ICJ, nevertheless, was not persuaded that cross-border 'intervention' contrary to article 2(7) justified the use of force in 'self-defence'. Since action in self-defence must be strictly 'proportional' and 'necessary' in the circumstances, the ICJ held that the 'threat or use of force' did not in this case permit the

to repel cross-border attacks on Nicaraguan territory. Crucially,

Nicaragua

had not demonstrated that it was an aggrieved or 'victim' state in need,of covert or overt military assistance.

Despite the attribution of responsibility to states guilty of trans-border incursion - in terms of armed intervention and ideological subversion - the ICJ have therefore thoroughly dismissed the legality of a doctrine of 'humanitarian intervention,.73 Thus, the ICJ stated

The

United States

authorities have on some occasions clearly stated their grounds for intervening in the affairs of a foreign State for reasons connected with, for example, the domestic policies of that country, its ideology, the level of its armaments, or the direction of its foreign policy. But these were statements of international policy, and not an assertion of rules of existing internationallaw74.

As a result, the ICJ found that 'acts constituting a breach of the customary principle of non-intervention will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relation’. In any event, the

Nicaragua

decision holds that the valid means to monitor disarmament and peaceful settlement of regional disputes is not by forced 'democratisation’ or by military adventure. This ties, finally, into the crucial issue of 'collective' self-defence and the notion of a 'just' war.75

COLLECTIVE' PREEMPTION AND AN EMERGENT RESPONSIBILITY TO PROTECT

In response to requests by Secretary General, Koffi Annan, the High-Level Panel recently published Threats, Challenges and Change.76 Enforcing human rights and reasserting non-aggression and non-intervention, the Panel proposed an emerging 'collective responsibility to protect'. This lex ferenda norm would list 'five criteria' for lawful use of force. Addressing security concerns to the SC, states would have to "pass" five tests:

1. The victim state must prove a seriousness of threat. This would demand threatened harm to be sufficiently clear - 'actual or imminently apprehended' – as a serious threat to human security. In internal conflicts, this would include serious violations of international humanitarian law.

2. The State Party must show a proper purpose: the 'primary' goal of enforcement action must be conflict resolution.

3. Military action, direct or indirect, shall be taken as a last resort.

4. The State party must use proportional means to eliminate an actual attack or threat of attack.

5. Use of force in self-defence would entail a balance of consequences: 'is there a reasonable chance of the military action being successful in meeting the threat in question, with the consequences of action not likely to be worse than the consequences of inaction'? 77

These criteria compare, for example, with the Caroline principle and with Wheeler's concept of 'sovereignty as responsibility' through his allowance for just war.78 Broadly speaking, just war legitimates reasonable use of collective force, as a last resort, to end ongoing violations to human rights or humanitarian law. It must be seen, however, that this issue may become highly politicised and is not necessarily the best approach to the legitimacy or legality of self-defence, or jus ad bellum.79

The concept, nevertheless, can be usefully contrasted with President Bush's more extreme measures in respect to a

unilateral response to international security, and to human security in general. 80 Thus, the NSS relies upon preemptive, unilateral action through 'non-proliferation': this would enable the

to interdict nuclear material being supplied to rival states or to 'non-state actors'. Citing the Articles of State Responsibility, the

government might manipulate threats by terrorists or insurgents to subvert sovereign states' internal law. Pursuant to the NSS, therefore, the

could attribute armed interventions (including terrorist atrocities and weapons exportation) to

North Korea

Iran

, Iraqi insurgents or al-Qaeda operatives in

Afghanistan

Pakistan

and the Occupied Territories. Although 'counter-proliferation' might entail countering an 'imminent' threat with conventional weapons, the NSS goal of 'non-proliferation’ could easily include 'regime change' or the use of strategic nuclear force to effect its aim of Pax Americana.81

CONCLUSION

It is submitted, in conclusion, that the NSS position is legally unsound and dangerous in the extreme. Though the Caroline principle may seem otiose, necessity and proportionality continue to be critical elements of a lawful use of force. Absent an actual or, indeed, a constructive armed attack, the Bush strategy might well embolden 'rogue' states to retaliate in kind with, naturally, devastating consequences. Contrary to emergent UN proposals for a system of collective security, the Bush Doctrine as established in the NSS would contravene the purposes and principles of the UN Charter. In so doing, it is submitted that the Bush Doctrine itself poses a grave threat to international peace and security.

] US National Securitty Strategy (2002) ('NSS') 41 LL.M.. See, generally, 'The Underpinnings of the Bush Doctrine' Print Mail. Tho as Donnelly, Posted: Friday, January 31, 2003; 'National Security Outlook: AEI Online (Washington), blication Date: February 1,2003; 'Preemptive Strikes Part Of U.S. Strategic Doctrine' ,'All Options' Open or Countering Unconventional Arms', Mike Allen and Barton Gellman

National Security Strateg ('NSS'), Ibid.

3 Official: N. Korea Nuclear Test Possible By John J. Lumpkin, Associated Press. On the mammoth divagations of academic, pundits and commentators, see UK, Written Answers to Questions, House of Lords, 17 March 2003, vol 646, pt 65, column W A2 (Lord Goldsmith, Attorney-General); AttorneyGeneral's Departm_nt and Departm_nt of Foreign Affairs and Trade, Australia, Memorandum of Advice on the Use of Force against Iraq (2003) avaiLable at http://www.pm.gov.au/iraq/displayNewsContentcfm?refx=96> at 1 May 2005; Full advice of Lord Goldsmith to the Prime Minister on the legality of the use. of force,

f released 28 April 2005, available at <http://image.guardian.co.uk/sysfiles/

Guardianldocuments/2005/04/28/legal.pdf> at ] May 2005 ('Full Advice of the

Attorney-General '); Australian Lawyers for Human Rights, Open Letter - Iraq War (2004) <http://www.alhLasn.au/html/documents/OpenLetter_lraqWar.htm!> at ] May 2005;

Rabinder Singh and Alison Macdonald. Public Interest Lawyers

on behalf of Peace Righrs.

. Legaliry of the Use of Force against

Iraq

(2002)

dm_: i".W\' .knn.on.:/"jooal/lraq()ninion 1 0.9 .O:?.ndf> a: I lvla\ 2005:

Resolution 1441, SC Res 1441, UN SCOR, 57th sess, 4644th mtg, UN Doc S/RES/1441

(8 November 2002); Jon Henley, Gary Younge and Nick Walsh, 'Threat of War:

France

Germany

and

Russia

Harden Stance', The Guardian (Manchester,

), 6 March 2003,5.

37 Resolution 678, SC Res 678, UN SCOR, 55th sess, 2963rd mtg, UN Doc S/RES/678

(29 November 1990).

38 Resolution 687, SC Res 687, UN SCOR, 56th sess, 2981st mtg, UN Doc S/RES/687

(3 April 1991); Colin Powell, My American Journey (1995) 490;

Amnesty International,

Iraq

: Human Rights Committee Briefing (1997) <http://web.amnesty.org/library/index/ENGMDE]40081997> at 1 May 2005.

4 UN Charter, Article 2(4). Article 2(4) provides, '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'. .

5 UN Charter Article 51.

6 Caroline Correspondence (J 841) 29 BFSP 1137-38.

7 This is the self-styled Operation 'Enduring Freedom'. SC Res 1368.

H See' UN Charter Articles 39-42.

9 Cf D. Bowett, Reprisals Involving Recourse to Armed Force, (1972) AJIL 1.

10 See generally, High Level Panel Report into Threats, Challenges and Change.

11 UN Charter Arti cl e 2(4).

12 UN Charter Article 39.

13 UN Charler Arricle 33. Article 33 provides. '(1) The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security shall first of all seek a negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. (2) The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means'.

14 UN Charter Article 51 Article 51 provides, 'Nothing in the 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 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 responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.'

Nicaragua

(Merits), ICJ Reports 1986, para. 175-83.

]0 NuclearWeapons Advisory Opinion. ICJ Reports 1997, para. 36-96. See also Judge Higgins (dissent)

17 Ibid. .

n: North Sea Continental Shelf Cases. ICJRepons 1969. p. 44. para. 77: Anglo-Norwegian Fisheries Case. ICJ ReDom ! 951.

191. Brownlie, International Law and the Use of Force by States, Clarenden Press, Oxford, 1963,pp 251

80. Brownlie rebukes or repudiates the Caroline case as 'anathema' to international jurisprudence. According to Brownlie, the doctrine of 1837is 'anachronistic and indefensible'.

20 Caroline Correspondence, n 6.

21 Dino Kritsiotis, "The Legality of the 1993 US Missile Strike on

Iraq

and the Righi of Self-Defence in

International Law" (1996) 45 Internationa! and Conwaratil'(, La\i' Ozwrterh' 160.

22 Angus Martyn, 'The Right of Self-Defence under International Law: the Response to the Terrorist Attacks of 11 September', Law and Bills Digest Group, 12 February 2002. According to Martyn, 'Interceptive self-defence occurs where the aggressor has committed itself to an attack in an 'ostensibly irrevocable way' '. See Yoram Dinstein, War Agression and Self-Defence, 3rd ed, Cambridge University Press, Cambridge, 2001, pp 157-282.

23 Dinstein Ibid.

Nicaragua

(Merits), ICJ Reports 1986, para. 175-83. Although hypothesizing a right of preemptive selfdefence, it was unnecessary for thelCJ to decide the issue of 'preventive strikes'. It stated that 'anticipatory' self-defence may exist at customary international law but added that this would (essentially) require an extension of the situation beyond that relevant in

Nicaragua

The ICJ ruled that the legal content of self-defence under conventional law and under customary law were not, in this instance, identical.

Though obiter dicta, the ICI's comments might cover the responsibility of 'non-state actors'. Allegedly, the Contras and Salvadoran rebels were both responsible for 'wrongful acts' of non-intervention and of non-aggression. As Hargrove states, nevertheless, not every 'wrongful' use of force will justify self-defence.

'With regard to the characteristics governing the right of self-defence,.. .reliance is placed by the Parties only on the right of self-defence in the case of an armed attack which has already occurred, and the issue of the lawfulness of a response to the imminent threat has not been raised. Accordingly the Court expresses no view on that issue. The Parties also agree in holding that whether the response to the attack is lawful depends on observance of the criteria of the necessity and the proportionality of the measures taken in self defence.' (compare with NW and Caroline) .

25 Ibid. Cf J. Hargrove, "The

Nicaragua

Judgment and the Future of the Law of Force and Self-Defence", (1987) 81 AJIL 135. In

Nicaragua

, the majority held that armed force 'Includes not merely action by regular armed forces across anintemational border but also 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 graviry as to amount to an actual attack conducted by regular forces or its substantial involvement therein.' :2(; Triggs, Chapter 1.

27 Triggs, Ibid. See in particular 'The United States and International Law - the Effects

U.S.

Predominance on the Foundations of International Law', Gottingen,

Germany

, 25-27 October

:nd the Right of Self-Defense,' 95 AJIL (2001) 839.

30 Tim Woods, "Realism" in 'International Relations', Beginning Postmodernism. For views on US :'realist" policy, see further former Secretary of State George P. Shultz, Turmoil and Triumph (1993), at 645-653. According to Schultz:

'We cannot allow ourselves to become the Hamlet of Nations, worrying endlessly over whether and how to respond. A great nation with global responsibilities cannot afford to be hamstrung by confusion and indecisiveness. Fighting terrorism will not be a clean or pleasant contest, but we have no choice. . . We must reach a consensus in this country that our responses should go beyond passive defense to consider means of active prevention, preemption, and retaliation. Our goal must be to prevent and deter future terrorist acts. . . The public must understand before the fact that occasions will come when their government must act before each and every fact is known - and the decisions cannot be tied to polls.' Also, Secretary of Defense, Donald Rumsfeld, stated:

'We have no choice: [D]efending the

U.S.

requires prevention, self-defense and sometimes preemption. It is not possibk to defend against every conceivable kind of attack in every conceivable location at every minute of the day or night. Defending against terrorism and other emerging 21st century threats may well require that we take the war to the enemy. The best, and in some cases, the only defense is a good offense.

See 'Secretary Rumsfeld Speaks on "21st Century Transformation" of U.S. Armed Forces' (remarks delivered at the National Defense University, Fort McNair, Washington D.C. on 31 Jan. 2002), available at www.defenselink.mil/speeches/2002/s20020 131-secdef.html.

'T)iDicaJ crimina] law enforcement is insufficient to reach and stop terrorists located in ST_W>" th;u ,,!inw thpm tn nnpr,.,tF'" nrnsP!'1I1innc nf jnw-IPVPlnnf'r"Tivf'<: winino Tn riip

cannot be expected to deter attacks. Indeed, deterrence is far less effective in dealing with modern terror (individuals or groups) than it has been with regard to conventional threats from state conduct. States can attempt to avoid responsibility for attacks by using terrorists to carry them out. States can also enable terrorists to attack other states by refusing to prevent such attacks, as the Taliban did. In either situation, establishing responsibility for attacks is a formidable problem, greatly complicating national defence. Terrorist groups avoid detection by dispersing their members in highly decentralized cells; many are prepared to face death in pursuing their objectives. Success or victory for such people has a meaning alien to rational thought. Finally, no amount of preparation and technological sophistication will enable the

and other target states to prevent all serious terrorist attacks, or even.to limit such attacks to a tolerable level. Technology should increasingly enhance security at key locations and for critical infrastructures. But the

remains target rich, and extremely vulnerable,

because it is a large, thriving, open society unwilling to compromise its fundamental freedoms for security. For these reasons, the

has advanced, more forcefully than ever, the need for pre-emptive actions.'

31 Cf Beirut raid 'to make clear to the other side that the price they must pay for terrorist activities can be very high', Doc. S/PV. 1460, pp 22-23; Entebbe incident, UN Doc. S/ Pv. 1939; SC Res. 487,36 UN SCOR, 2288th mtg., UN Doc. S/RES/487 (1981); Anthony D' Amato, 'Israel's Air Strike

against the Osiraq Reactor: A Retrospective', 10 Temple Int'l Compo L.J. (1996) 259; Israeli bombing of Tunis, condemned as 'an act of armed aggression in flagrant violation of... international law', SC Res 573 (1985), SCOR, 40th year; Beirut bombings of PLO, SC Res 262 (1968).

32 NSC 68:

United States

Objectives and Programs for NationaI Security

(14 April 1950), A Report to the President Pursuant to the President's Directive

nfTmwnn' ::r 1 19,)()

3.Ibid, Part IX, p.36.

34 Anthony Sofaer, 'On the Necessity of Pre-emption', EJIL 14 (2003), 209-226

35 D. Bowett, "Reprisals Involving Recourse to Armed Force", 66 AJIL (1972) 1.

36 SC Res 1368 (2001); see also Harris, Cases and Materials on International Law, 6th ed, Thomson, Sweel & Maxwell, London, 2004, pp.143-49.

37 Cf Gray Self-De{ence against Terrorism. extracted in Evans (ed). International Law, (2003), pp.603-5; The 9-11 Commission Report: Final Report of the International Commission on Terrorist Attacks Upon the United Stales. Official Government Edition.

38 Sofaer, n 33

39 Case Concerning Military and Paramilitary Activities in and Against

Nicaragua

(

Nicaragua

) IC] Reports 1986, par_. 176; Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XX), 24, October 1970. For an interesting academic analysis, see M. McDougal and F. Feliciano, 'the Initiation of Coercion: A Multi-Temporal Analysis', (J 958) 52 AJIL 241.

Nicaragua

(Merits). IC] Reports 1986,

41 Ibid. n 23. See also, North Sea Continental Shelf' Cases. lCI Reports 1969, p, 44,para. 77; Anglo-Norwegian Fisheries case TeT Rf'nnrt, 10') 1

Nicaragua

(M eriis), ICJ Reports 1986. Despite attribution of responsibility to

Nicaragua

for some transborder (footnote Jessup) incursions, the ICJ completely dismissed the legality of a doctrine of 'humanitarian intervention'52. This alienates publicists such as Lillich, who decry blackletter, 'blanket' prohibitions in human rights emergencies.

The ICJ stated:

The court therefore finds that no such general right of intervention in support of an opposition within another State, exists in contemporary international law. The

United States

The ICJ held

'acts constituting a breach of the customary principle of non-intervention will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations'54.

43 UN Charter, Article 51. Moreover, article 42 provides, 'Should the Security Council consider that measures provided for in Article 4 I would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.'

44 UN Charter, Article 51.

45 See, eg, Gray, 'Self-Defence Against Terrorism' extracted in Evans, International Law, (2003), pp. 6035. Note US National Security Strategy (2002) 41 LL.M.. 1478.

Nicaragua

(Merits). ICJ Reports 1986 at 235-38.

-17 Ibid. n 58. para. 235-38. UN Charter. Anicl_ :) i: D.W. Greig, 'Self Defence and the Security Council "What Does Article 51 Require"? 40 International and Comparative Law Quarterly 366.

Nicaragua

(Merits), ICJ RepQrts 1986 at 235-38.

49 ' . . ..

The future "dangers" of an unconventIOnal nuclear attack, and the notion of "deterrence" were highlighted by the ICJ decision in the Nuclear Weapons case, Legality of Nuclear Weapons Advisory Opinion, ICJ Reports 1996,2.

Reaffirming article 2(4), the majority held that the article 51 right was subject to 'inherent' restraints. Recalling customary obligation, state must use 'proportional' force meeting the laws 'applicable' in armed connict. This requirement acknowledged precepts of international humanitarian law69. As Brierly explains, proportionality comprehends traditional jus in bello, necessity jus ad bellum.

At the same time, the majority were unable to find that there exists a 'universal comprehensive prohibition as such' [My emphasis] upon the employment of nuclear weapons in valid self-defence.

Hence

'The Court notes by way of introduction that international customary and treaty law does not contain any specific prescription authorizing the threat or use of nuclear weapons or any other weapon. In general or in certain circumstances, in particular those of the exercise of legitimate self-defence. Nor, however, is there any principle or rule of international law which would make the legality of the threat or use of nuclear weapons or of any other weapons dependent on a specific authorization. State practice shows that the illegality of the use of certain weapons as such does not result from an absence of authorization but, on the contrary, is formulated in terms of prohibition.' At 105, voting by eleven votes to three, (Judges Shahabuddeen, Weeramantry and Koroma dissenting). Contra, consider General Treaty for the Renunciation of War (1928), Pact of Paris, Briand Kellogg Pact, Cmnd. 34iO; 94 L.N.T.S. 57; Oil Platforms Case (Merits) (iran v US), ICJ Reports 2003; Barcelona Traction, Light and Power Co. Case (Belgium v Spain) ('Barcelona Traction'), ICJ Reports 1970,

50 R. Higgins, Problems and Processes: international Law and How We Use it, Clarendon Press, Oxford, 1994, pp. 17-38; See also Fisheries Jurisdiction Case (Merits), ICJ Reports 1974; Statute of the International Court of Justice, Article 38(1); Continental Shelf (Libyan Arab Jamahariya Malta), ICJ Reports 1985, pp. 29-30, para. 27; (1950) 27 B.Y.I.L. 376 at 394; note also, Maritime Delimitation and Territoria! Questions Between Qararand

Bahrain

, IeJ Reports 200 i, p, 40. Cf A, Cassese, Internationa! Law'. Oxford Universitv Press. (200 11. pro 12L25,

51 Statute of the International Court of Justice, Article 38(1). Article 38(1) provides, 'The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.'

52 Higgins, n 49.

53 Cf Israeli Wall case, ICJ Reports 2004.

54 Corfu Channel case, ICJ Reports 1949, p. 4; US Diplomatic and Consular Staff (Tehran Hostages), ICJ Reports, 1980, p. 3.

55 Israeli Wall, ICT Reports 2004.

56 Ibid.

57 N"r!pl7r Werl7Ji7I7.\ Advisor\' ()nil7ii7ll. ICY Renorts ] 997. nara. 36c96.

58 There has been a suite of responses to Article 2(4). See, generally, L. Henkin, 'The Reports ofrhe Death of Article 2(4) are Greatly Exaggerated", 65 AJIL (1971) 544; T. Franck, "Who Killed Article 2(4)?" , 64 AJIL (1970) 810; D. Bowett, "Reprisals Involving Recourse to Armed Force", 66 AJIL (1972) 1. Barcelona Traction case, ICI Reports 1970.

59 Nuclear Weapons Advisory Opinion, ICI Reports 1997; Israeli Wall, ICI Reports 2004.

60 Brierly, International Law and Resort to Armed Force, (1932) Camb.L.J. 308.

61 Vienna Convention on the Law of Treaties 1969;"US Statement on the Vienna Convention; Fitzmaurice, The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain other Treaty Points, (1951) 28 BYIL. 1; Macnair, The Law of Treaties, 2nd ed, pp. 15-21.

62 See, eg, Principles, Declaration, Aggression

63 Above, n 53.

64 H. Wilson, International Law and the Use of Force by National Liberation Movements, (1989), pp. 13039; Coifu Channel case, ICI Reports 1949, p. 4; US Diplomatic and Consular Staff (Tehran Hostages), ICI Reports, 1980, p. 3; Israeli Wall, ICI Reports 2004; Oil Platforms Case (Merits) (Iran v US), ICI Reports 2003.

65 Rio Treaty, Pact of Habana; cf Iran-US Treaty of Friendship of Amity, Economic Relations and Consular Rights 1955; US-Nicaragua Treaty of Friendsip. Commerce and Navigation] 956: HelsinkiConference Final Act for Securitv in Eurone ] 975: PrinciD/es of International Lovr Concerninf! Friendly Relations alld

Co-Operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XX), 24 October 1970; Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignt)', GA Resolution 2I31 (XX). 21 December 1965 G.A.O.R., 20'" Sess., Supp.14, p.11 (1966).

66 North Sea Continental Shelf Cases, ICJ Reports 1969, p. 44, para. 77. .

67 See, eg.. Julius Stone. Aggression and World Order: A Critique of United Nations Theories of Aggression (! 958) 96.

6_ Michael Bothe. 'Terrorism and the Legaliry of Pre-emorive Force'. EJIL 14 (2003).225.

69 High-Level Panel report

70 Above, n 63.

71 Bothe. n 67. 234.

72 Gerrv Sinmson. 'The "War in

Iraq

and International Law'. Melbourne jour/wi oflnrernariofla! LaY!' Vol 6.

Nicaragua

(Merits), ICJ 1986, para. 194-203. Thus, the ICJ stated

----

'The

United States

authorities have on some occasions clearly stated their grounds for intervening in the

affairs of a foreign State for reasons connected with, for example, the domestic policies of that country, its

ideology, the level of its armaments, or the direction of its foreign policy. But these were statements of international policy, and not an assertion of rules of existing international law.'

As a result, the ICJ found that 'acts constituting a breach of the customary principle of non-intervention wi]] also, if they directly or indirectly involve the use of force, constitute a breach of the principle of nonuse of force in internationahelations' . In any event, the Nicaragua decision holds that the valid means to monitor disarmament and peaceful settlement of regional disputes is not by forced 'democratisation' or by military adventure. This ties, fina]]y, into the crucial issue of 'co]]ective' self-defence and the notion of a 'just' war.

In Israeli Wall, moreover, the ICJ detailed

Israel

's breaches of the norms of non-aggression, nonintervention, Palestinian self-determination, international humanitarian law. With regard to the 'elements of law' concerning self-defence, the ICJ concluded that

Israel

had acted entirely contrary to international law. Whereas the Israeli representative contended that the waJl was 'who]]y consistent' with Israe]'s inherent ri_ht articie under article 51. the acts of 'ten-arists' did not constitute an 'armed attack' imputable

to a foreign state. Given that

Israel

exercised 'authority' under the Geneva Conventions and various protocols over the aT, the threat had 'originated within'

Israel

's security complex.

Israel

argued that it had successfully made 'reservations' and qualifications to relevant conventions which could preclude

Israel

from committing wrongful acts. On a test of 'necessity' , however,

Israel

did not meet defined conditions which must be 'cumulatively' satisfied. Under article 33 of the Articles on State Responsibility, the wall was not the only proportionate means to 'safeguard an essential interest from grave and imminent peril'. The wrongful acts of insurgents not amounting to actual 'armed attack', neither necessity or proportionality validated

Israel

's clearly wrongful act of aggression and intervention in constructing the wall through the OP. '

Nicaragua

(Merits), ICJ 1986, para. 194-203.

7", Wheeler. ********

7(, High-Level Pane] renort into Threats. Chcillen;!cs and Chall;!c. 2005.

77 Ibid.

78 Kenneth Abbott and Barbara Murphy,. 'Rethinking Humanitarian Intervention', National Strategy Review Vol. 13 No. i (2003). Humanitarian intervention; Responsibility to Protect. Abdullahi, Mohamed Diriye. ... Law international, i999. Humanitarian intervention; Sovereignty; Non-intervention; international Law; Customdry Law... Humanitarian Intervention; Ethics; International Law, Nicholas J. Wheeler. Saving Strangers: Humanitarian Intervention in International p 75. For an understanding of 'just war' doctrine, see especially H. Grotius, De Jure Belli: et Pacis (1853), at 206; S. Pufendorf, De Jure Naturae et Gentium (1688, reprinted 1964), at 264-294; Monsieur de Vattel, The Law of Nations (1852) 308. Vattel gives the clearest instance, in his 'musket analysis', of a just war; incidentally, these remarks were closely scrutinised, indeed reproduced by Daniel Webster in the course of the Caroline case:

'When once a state has given proofs of injustice, rapacity, pride, ambition, or an imperious thirst of rule, she becomes an object of suspicion to her neighbours, whose duty it is to stand on their guard against her. . . . [O]n occasions where it is impossible or too dangerou's to wait for an absolute certainty, we may justly act on a reasonable presumption. If a stranger levels a musket at me in the middle of a forest, I am not yet certain that he intends to kill me: but shall I, in order to be convinced of his design, allow him time to fire?But presumption becomes nearly equivalent to certainty, if the prince who is on the point of rising to an enormous power has already given proofs of imperious pride and insatiable ambition. . . . [Would not requiring restraint in such situations deprive] mankind of the right to regulate their

conduct by the dictates of prudence, and to act on the groun_ of probability? These must be imminent, and extreme, and involving impending destruction.'

Vattel, The Law of Nations (1852) 308.

79 In the lead-up to its 'preventive' strikes on Baghdad and to its resultant occupation of the country, the U_ sought to justify its actions against Iraq as an "automatic" response to flagrant violations of Res 687 by Saddam Hussein: on this basis, the US claimt;d the legal 'automaticity' of previous binding SC resolutions. The issue of automaticity specifically involves the question of whether there "survived" a 'material breach' of the ceasefire agreement between the US-led coalition in the First Gulf War and

Iraq

with respect to UN weapons inspections. The

alleged that

Iraq

had refused to comply with SC authorization pursuant to resolution 687 to search for weapons of mass destruction (WMD). In the final weeks preceding US 'anticipatory' attacks, it will be noted, chief weapons inspector for UNSCOM, Hans Blix requested further time for weapons inspections in

Iraq

Turning on the precise language of SC authorization of armed force, however, US attacks (2003) on

Iraq

were clearly illegal both under the Charter and under the customary criterion of an 'imminent' threat. Unlike resolution 678, resolution 1441 did not authorize 'all necessary means' to subdue

Iraq

or bring her into compliance. On the contrary, resolution 1441 threatened 'serious consequences' which envisaged later resort to force.

XO 'NSS' (USG 2002), Part I, available at www.usinfo.state.go\..

Xi 'N"tinn,,] ';;pr-nritv Outlook' AFT Online- (Wilshin9"lonL Puhlication Date: ] Februarv 2003.

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Nicaragua

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Definition of Aggression (annex to GA Res 3314 (XXIX).

Spanish Zones of

Morocco

Claims

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Amin Saikal, Islam and the West: Conflict or Cooperation?

Samuel P Huntingdon, The Clash of Civilisations and the Remaking of a New World Order

Richard Butler, Fatal Choice

J. de Arechega 'General Course in Public International Law' (1978) 159 Receuil des Cours 9

J. Hargrove, 'The

Nicaragua

Judgment and the Future of the Law of Force and SelfDefence' 81 AJIL (1987) 135,

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R. Lillich, 'Forcible Self-Help by States to Protect Human Rights' 53 Iowa LR 325 (1967-1968)

1. Brownlie, 'Humanitarian Intervention' in J. Norton Moore (ed.), Law and Civil War in the Modem World (1974)

Henry Kissinger, Diplomacy

Nicaragua

(Merits) ICJ Reports 1986.

Nicaragua

(Merits) ICJ Reports 1986 14,442 (Dissenting Opinion of Judge Schwebel).

Malcolm Shaw, International Law (4th ed, 1997) 777-91.

Ian Brownlie, International Law and the Use of Force by States (1963) 28J (citation omitted).

Yoram Dinstein, War, Aggression, and Self-Defence (3rd ed, 2001) 168.

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Item 155, UN Doc AlRES/53/108 (1999); Resolution 56/160, GA Res 56/160, UN GAOR,

Definition of Aggression (annex to GA Res 3314 (XXIX).

Spanish Zones of

Morocco

Claims

Israeli Wall

Prosecutor v Dusko Tadic

Caroline

Angus Martyn

Dianne Kritsiotis

article 53 of the VCLT

Hungarian Dams

Helsinki Declaration

GA resolution 2131 (XX).

Rio Treaty, Article 6, Arts 3(1), 3(2).

North Atlantic Treaty, Article 5.

Act of Chapultepec.

Declaration of Habana.

Schacter

Warsaw Pact, Article 4.

National Security Document, NSC 68.

High-Level Panel report on Threats, Challenges and"Change.

G. Kennan, 'Long Teleraph' and 'X Article', citation omitted.

,Gray, International Law and the Use of Force,

Agenda for Peace (1992) and Supplement (1995).

Secretary-General's report, In Larger Freedom: Towards Development, Security and Human Rights for All.

Nuclear Weapons case

See, eg, Texacoy

Corfu Channel

LOTUS Case

Oil Platforms

Fort Harib Incident, SC Res. 188,9 April 1964.

SC Res. 660.

SC Res. 661.

SC Res. 665.

SC Res. 678.

SC Res. 686.

SC Res. 688.

SC Res. 1154.

SC Res. 1441.

SC Res. 1160.

SC Res. 1199.

SC Res. 1203.

North Sea Continental Shelf

Anglo-Norwegian Fisheries

East Timor

Tlatelo1co Treaties.

Rarotonga Treaties.

GA Res. 1653 (XVI)

SC Res. 808,22 February 1993.

SC Res. 827. 25 Mav1993

J. N. Maogoto, 'War On the Enemy: Self-Defence and State-Sponsored Terrorism',

Convention for the Prevention and Punishment of Terrorism (1938) 19 League of Nations.

ILC, 'Draft Statute for an International Criminal Court', art 23(2) in ILC, Report of the International Law Commission on the Work of its 46th Session, UN Doc A/49/l0 (1994).

Triggs, Chapter 9: Regulation of the Use of Force.

T.M. Franck, Recourse to Force (2002)

Brierly, International Law and Resort to Armed Force (1932)

Statement by the North Atlantic Council, 12 September 2001, httv://www.nato.intJdoculvrI200l/vOl-124e.htm

The Entebbe Incident, (1976) 15 ILM 1224.

D. Greig, "Self-Defence and the Security Council: What does Article 51 Require?" (1991) 40 International and Comparative Law Quarterly 366.

T. McCormack, Self-Defence in International Law: The Israeli Raid on the Iraqi Nuclear Reactor (1996).

Bowett, "Reprisals Involving Recourse to Armed Force, (1972) 66 AJIL 1. Gulf of Tonkin Incident, 1964 BYIL 268; Triggs, Chapter 10.

Foreign Office Policy Document (1986).

M.L. Levitin, "The Law of Force and the Force of Law:

Grenada

, the Falklands, and Humanitarian Intervention" (1986) 27 Harvard International Law Journal 621.

J. Charney, "Anticipatory Humanitarian Intervention in Kosovo" (1999) Vanderbilt Journal of Transnational Law 1231.

N. Wheeler, "Legitimating Humanitarian Intervention: Principles and Procedures" (2001) Melbourne Journal of International Law 550. .

Uniting for Peace Resolution, GA Res. 377, 1950.

Tadic case, 112 ILR 1, Trial Chamber, 1997.

Texaco Overseas Petroleum Company l' Libyan Arab Republic (1977) 53 ILR 389.

Corfu Channel Case, ICJ Reports 1949.

ILC Articles 2001, 40-41.

Short v Iran (US v Iran) (1987)

Israeli Wall Advisory Opinion, ICJ Reports 2004.

Triggs, Chapter 8, Responsibility for Internationally Wrongful Acts.

ILC Articles on State Responsibility, Arts. 10-11,28-39,49-54

H. Charlesworth, C. Chinkin and S. Wright, "Feminist Approaches to International Law" (1991) 85 American Journal of International Law 613.

G. Triggs, "Confucius and Consensus: International Law in the Asia Pacific" (1997) Melbourne University Law Review 650.

Lotus Case (France v Turkey) pcn 1927.

.North Sea Continental Shelf Cases, ICJ Reports 1969.

Anglo-Norwegian Fisheries Case ICJ Reports 1951.

Asylum Case, ICJ Reports 1950.

Rights of Passage Over Indian Territory Case, ICJ Reports 1960.

Vienna Convention on the Law of Treaties (1969) Article 27, Articles 31-35, Article 53, Article 62-63.

C. Chinkin, "The Challenge of Soft Law: Development and Change in International Law" (1989) 38 International and Comparative Law Quarterly 850-66.

D' Amato, "Trashing Customary International Law" (1987) 81 American Journal of International Law 101-5.

G. Scott and C. Carr, "Multilateral Treaties and the Formation of Customary International Law" (1996) 25 Denver Journal of International Law and Policy 71.

P. Weil, "Towards Relative Normativity in International Law (1983) 77 American Journal of International Law 413-42.

Lockerbie Case, ICJ Reports 1992.

J. N. Maogoto, 'War On the Enemy: Self-Defence and State-Sponsored Terrorism',

Convention for the Prevention and Punishment of Terrorism (1938) 19 League of Nations.

ILC, 'Draft Statute for an International Criminal Court', art 23(2) in ILC, Report of the International Law Commission on the Work of its 46th Session, UN Doc A/49/l0 (1994

Triggs, Chapter 9: Regulation of the Use of Force.

T.M. Franck, Recourse to Force (2002)

Brierly, International Law and Resort to Armed Force (1932)

Statement by the North Atlantic Council, 12 September 2001, http://www.nato.intJdoculpr/200l/pOl-124e.htm

The Entebbe Incident, (1976) 15 ILM 1224.

D. Greig, "Self-Defence and the Security Council: What does Article 51 Require?" (1991) 40 International and Comparative Law Quarterly 366.

T. McCormack, Self-Defence in International Law: The Israeli Raid on the Iraqi Nude Reactor (1996).

Bowett, "Reprisals Involving Recourse to Armed Force, (1972) 66 AJIL 1. Gulf of Tonkin Incident, 1964 BYIL 268; Triggs, Chapter 10.

Foreign Office Policy Document (1986).

M.L. Levitin, "The Law of Force and the Force of Law:

Grenada

, the Falklands, and Humanitarian Intervention" (1986) 27 Harvard International Law Journal 621.

J. Charney, "Anticipatory Humanitarian Intervention in Kosovo" (1999) Vanderbilt Journal of Transnational Law 1231.

N. Wheeler, "Legitimating Humanitarian Intervention: Principles and Procedures" (20C Melbourne Journal of International Law 550. .

Uniting for Peace Resolution, GA Res. 377, 1950.

Tadic case, 112 ILR 1, Trial Chamber, 1997.

Tpxarn ()verseas Petroleum Comuany l' Ubvan Arab Republic (1977) 53 ILR 389.

Corfu Channel Case, ICJ Reports 1949.

ILC Articles 2001, 40-41.

Short v Iran (US v Iran) (1987)

Israeli Wall Advisory Opinion, ICJ Reports 2004.

Triggs, Chapter 8, Responsibility for Internationally Wrongful Acts.

ILC Articles on State Responsibility, Arts. 10-11, 28-39, 49-54

H. Charlesworth, C. Chinkin and S. Wright, "Feminist Approaches to International Law" (1991) 85 American Journal of International Law 613.'

IG. Triggs, "Confucius and Consensus: International Law in the Asia Pacific" (1997) Melbourne University Law Review 650.

Lotus Case (France v Turkey) pcn 1927.

North Sea Continental ShelfCases,ICJ Reports 1969.

Anglo-Norwegian Fisheries Case ICJ Reports 1951.

Asylum Case, ICJ Reports 1950.

Rights of Passage Over Indian Territory Case, ICJ Reports 1960.

Vienna Convention on the Law of Treaties (1969) Article 27, Articles 31-35, Article 53, Article 62-63.

C. Chinkin, "The Challenge of Soft Law: Deyelopment and Change in International Law" (1989) 38 International and Comparative Law Quarterly 850-66.

D' Amato, "Trashing Customary International Law" (1987) 81 American Journal of International Law 101-5.

G. Scott and C. Carr, "Multilateral Treaties and the Formation of Customary International Law" (1996) 25 Denver Journal of International Law and Policy 71.

P. Weil, "Towards Relative Normativity in International Law (1983) 77 American Journal of International Law 413-42.

Lockerbie Case, ICJ Reports 1992.

Finance, Music and Worldly Thoughts

Thursday 27 October 2011

THE DOCTRINE OF PREEMPTIVE STRIKE: MY RESPONSE TO THE IRAQ WAR WRITTEN IN 2005

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