Journal On Law

laThe Security Council has been skeptical about explicit unilateral claims of preemptive self-defense. In 1981 the Council condemned Israel’s preemptive strike against Iraq, 4 in part as follows: Deeply concerned about the danger to international peace and security created by the premeditated Israeli air attack on Iraqi nuclear installations on 7 June 1981, which could at any time explode the situation in the area, with grave consequences for the vital interests of all States, Considering that, under the terms of Article 2, paragraph 4, of the Charter of the United Nations, “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”, [the Security Council] 1. Strongly condemns the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct.

Calls upon Israel to refrain in the future from any such acts or threats thereof.”5 In terms of explicit collective claims to preemptive self-defense, the Security Council has remained silent. It has expressed neither support for nor disapproval of U.S. preemptive action in Iraq, perhaps because, as a permanent member, the United States could veto any such resolution, rather than because the Council believed all of its other members shared the U.S. position on this question of international law. One need only recall that the Bush administration tried, but failed, to win Security Council authorization for the U.S. invasion of Iraq of March 2003.51 Nevertheless, the Security Council has not accepted the International Court’s interpretation of Article 51, which, as will be recalled, requires state responsibility for the attack that provokes Congo v. Uganda, supra note 4, Separate Opinion of Judge Simma, para. 11. 5 See infra pt. VI, “Non-U.S. Coalition Partners.” ” SC Res. 487 (June 19, 1981), 20 ILM 993 (1981). 56 The Security Council did, however, approve a resolution implicitly endorsing the U.S. occupation by authorizing a “multinational force under unified command” to provide security in Iraq. SC Res. 1511 (Oct. 16, 2003), 43 ILM 254 (2004). 5′ See, e.g., Elizabeth Neuffer.

After Discord, UN’s Effectiveness Called into Question, BOSTON GLOBE, Mar. 18, 2003, at A29, available in Westlaw, All News Combined. But as Ruth Wedgwood notes, the Security Council later passed Resolution 1483 (May 22, 2003), providing political cover for states to engage in the reconstruction of Iraq. Wedgwood, supra note 7, at 582. 2006] HeinOnline — 100 Am. J. Int’l L. 537 2006 THE AMERICAN JOURNAL OF INTERNATIONAL LAW a claim of a right to self-defense. Following the terrorist attacks of September 11, 2001, in the United States, the Security Council was plainly operating on the understanding that both non state actors and the states that aid, support, or harbor them would be held accountable. In Resolution 1368, cited by the Court in the Wall case and by Judges Kooijmans and Simma in their separate opinions in Congo/Uganda, the Council, Recognizing the inherent right of individual or collective self-defence in accordance with the Charter.

Calls on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harboring the perpetrators, organizers and sponsors of these acts will be held accountable. 58 Given the nature of the mods operandi of Al Qaeda and its cognate organizations, merely stating that international law’s right of self-defense applies to them may amount to a tacit acknowledgment that sometimes self-defense may be lawfully used anticipatory and even preemptively.59 VI. In the period since the United States lodged its broader claim, several governments have openly debated the possibility of a right of preemptive self-defense.

Classified memorandums and contingency plans may be based on other legal theories, but public documents are almost always phrased as proposing actions that are internationally lawful. The following discussion examines two groups of states: those participating in the U.S. coalition effort in Iraq, part of whose rationale was preemptive self-defense, and those that refused to take part and have been critical of the U.S. action there.6 ” While any grouping is somewhat arbitrary, an initial examination reveals, rather surprisingly, that the position of a state on the lawfulness of the military action in Iraq is not necessarily determinative of its adoption of-or position on-a policy of preemption. U.S. Partners in Iraq Australia. The Australian government defends its adoption of a preemptive strike policy against terrorists as a liberal interpretation of Article 51.

Defense Minister Robert Hill has argued, When an armed attack against a State is imminent, that State is not compelled to wait until the first blow has been struck. But what action can a State legitimately take when that attack is to be launched by a non-State actor, in a non-conventional manner, operating from a variety of bases in disparate parts of the world? There are no tell-tale warning indicators such as the mobilization and pre-deployment of conventional forces. 58 SC Res. 1368 (Sept. 12, 2001), 40 ILM 1277 (2001). 5′ The Security Council may yet moderate extended claims to preemptive self-defense, according to one scholar. Jos E. Alvarez, Hegemonic International Law Revisited, 97 AJIL 873, 888 (2003). 60

While the authors focus on government statements of policy, a question worth noting (but beyond the scope of this essay) is whether states have realigned their actual military policies to adhere more closely to their polices, or whether the government statements examined here are more aspirational in nature. [Vol. 100:525 HeinOnline — 100 Am. J. Int’l L. 538 2006 CENTENNIAL ESSAYS Whilst the Charter of the U.N. adopted not dissimilar language (Article 51 permits the use of self-defence “if criminal attack occurs”), it has not settled the debate between those who adopt a literal interpretation and those who argue that contemporary reality demands a more liberal interpretation. Again the jurisprudence of the International Court of Justice does not include a definitive statement on the scope of the law of anticipatory self-defence under the Charter.

States act according to their interpretation, no doubt informed by the interpretations of others. This liberal interpretation is also embodied in Australian military policy documents. National Security: A Defence Update 2003 explains that “diplomacy and international cooperation will not always succeed: the Australian Government may need to consider future requests to support coalition military operations to prevent the proliferation of WMD, including to rogue states or terrorists, where peaceful efforts have failed.”6 2 Similarly, a report by the Australian Air Force offers the following rationale for a preemptive policy: Strike may also take the form of a pre-emptive strike, aimed at deterring an aggressor before major conflict erupts.

While there would always be significant political and diplomatic consideration of any pre-emptive strike, confronted by irrefutable intelligence of impending hostilities, the Government may exercise a pre-emptive strike option to remove the immediate threat and demonstrate national resolve. 63 Australia was an early supporter of the U.S. preemption claim. In June 2002, following a press conference on the ratification of the Statute of the International Criminal Court, Prime Minister John Howard stated: [T]he principle that a country which believes it is likely to be attacked is entitled to take preemptive action is a self-evidently defensible and valid principle …. [L]et me make it very clear [that] if I were presented with evidence that Australia was about to be attacked and I was told by our military people that by launching a preemptive hit we could prevent that attack occurring I would authorize that preemptive hit and expect the Opposition to support me in the process.

This comment, made well before the terrorist attacks of October 2002 in Bali, received little public attention. In December 2002, however, Prime Minister Howard repeated his claim of preemptive self-defense but within a different context. Asked whether Australia would act preemptively on the basis of knowledge that terrorists in a neighboring country were planning an attack, he replied: Oh, yes, I think any Australian prime minister would. I mean, it stands to reason that if you believed that somebody was going to launch an attack against your country, either of 61 Robert Hill, minister for defence,John Bray Memorial Oration, University of Adelaide (Nov. 28, 2002), available at . 62 AUSTRALIA, MINISTRY OF DEFENCE, NATIONAL SECURITY: A DEFENCE UPDATE 2003, at 16, available at . 3 Royal Australian Air Force, Military Operations Index: Strike (n.d.), available at . 64 John Howard, Australian prime minister, Press Conference, Parliament House (June 20, 2002), available at . 2006] HeinOnline — 100 Am. J. Int’l L. 539 2006 THE AMERICAN JOURNAL OF INTERNATIONAL LAW a conventional kind or of a terrorist kind, and you had a capacity to stop it and there was no alternative other than to use that capacity then of course you would have to use it.

Less than a week after those comments, Prime Minister Howard met with high-level diplomats from ten Southeast Asian nations in response to a widespread regional outcry.66 More recently, he cast preemptive action as a theoretical, not a concrete possibility.

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