ANTICIPATORY SELF-DEFENSE/PRE-EMPTIVE SELF-DEFENSE

The concept of anticipatory or pre-emptive self-defence that is, the right to resort to force for the purpose of self-defence before an armed attack has taken place or in order to prevent a potential attack constitutes a controversial discussion among international lawyers and legal scholars.

Since the UN Charter was adopted, there have been several debates on whether anticipatory self-defense would be permissible under Article 51 of the Charter. On the one hand, some scholars argue that Article 51 prohibits anticipation in the context of self-defense, and on the other are scholars who reject this view and emphasize the significance of collective security in the post-1945 period. In fact, these scholars (along with a number of sovereign states) have defended the right of anticipatory self-defence under customary international law, even if such a right is not entailed in the text of the Charter.  Contrary to most international law doctrines, including the classic doctrine of self-defense, anticipatory self-defense is not reactive. Rather, it is proactive. As a customary legal doctrine, anticipatory self-defense was first articulated by Bush in the 2002 National Security Strategy, which is often referred to as the official statement of the doctrine.

Following earlier promises of the Bush administration in response to the 9/11 attacks namely putting state sponsors of terrorism on notice because “any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime”, the National Security Strategy expressed measures and tactics that later became known as the Bush Doctrine. The two primary pillars of the doctrine are: (a) anticipatory self-defense and (b) promoting democracy across the globe.  Given that self-defense in international law is premised on the occurrence of an armed attack, the Bush Doctrine challenges the traditional understanding of self-defense. The Bush Doctrine expanded the interpretation of the notion of imminence in the context of an armed attack. When this doctrine was initially proposed, international lawyers and academics were doubtful of its legitimacy, given that it challenged the traditional understanding of what counts as a just war and given its apparent inconsistency with the well-cited just war theory. However, many proponents have advocated for the adoption of this doctrine due to the modern and constantly changing reality of international law.

According to the Bush Doctrine:  For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat-most often a visible mobilization of armies, navies, and air forces preparing to attack. 

We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries. Rogue states and terrorists do not seek to attack us using conventional means.

They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction-weapons that can be easily concealed, delivered covertly, and used without warning.

The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction-and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively. The United States will not use force in all cases to preempt emerging threats, nor should nations use preemption as a pretext for aggression. Yet in the age where the enemies of civilization openly and actively seek the world's most destructive technologies, the United States cannot remain idle while dangers gather. As evident, the doctrine declares that the intent to undertake pre-emptive action prior to an attack protects American interests against even remote threats. In other words, under this doctrine, “a nation should not be required to wait to be attacked before it can defend itself, especially if the first blow is potentially devastating.” This doctrine made it clear that it would expand on the traditional scope of Article 51 under the Charter, which necessitates that an armed attack takes place before invoking the right of self-defence. It likewise dramatically expands the very earliest manifestation of imminent threat in self-defence, which required that the necessity for invoking the right of self-defence be “instant” or “overwhelming […] leaving no choice of means […] [and] […] no moment for deliberation.” 

The Bush Doctrine was later endorsed by the majority of the US Congress, despite appearing to contradict the restrictions imposed under Article 2(4) of the Charter relating to the use of force. The Bush administration explicitly blamed the existence of rogue states and terrorist groups armed with dangerous weaponry as the primary reason for its deviation from the traditional bounds of the classic doctrine of self-defense. However, whereas traditional conceptions of warfare were characterized by definite spatial and temporal boundaries, the war on terror goes beyond that, with uncertain (or non-existing) spatial or temporal limits.  The old-fashioned war against a nation-state was clearly defined spatially, even if it could at times spread to other countries, and the end of such a war was generally marked by the surrender, victory, or truce between the conflicting states. By contrast, war against a concept or set of practices, somewhat like a war of religion, has no definite spatial and temporal boundaries. Such wars can potentially extend anywhere for any period of time. The Bush Doctrine thus attempts to offer a rationale for a perpetual state of war given that the existing international legal framework does not seem to be adequate in addressing the demands of threats posed by ‘terrorists’, ‘rogue states’, and ‘enemies of civilization’ in the modern world. Given that this doctrine does not require that the perceived threat be imminent or overwhelming, it ultimately grants states full discretion to decide on whether an enemy or potential enemy constitutes a perceived threat to their respective security. In other words, the imminent threat definition introduced by the Bush Doctrine, and later adopted by successive administrations, no longer required that the threat be of immediate nature (or about to materialize) or that it be based on concrete, identifiable, and credible evidence. This allowed the US military to perceive future vague threats as a sufficient justification to invoke self defense and hence resort to the use of force. Especially with the absence of a previous armed attack, any determination on the threat of a terrorist attack will be speculative, ultimately serving the interests of the countries with superior military powers. According to Richard Tuck, the doctrine of anticipation in self-defense is “clearly a morally fraught matter, as by definition the aggressor has not been harmed, and his judgment about the necessity of his action might well be called into question both by the victim and the neutral observer.” Given that the US currently enjoys the strongest military and economic capacity in the world, it is not difficult to foresee the hierarchical power dynamics that this doctrine perpetuates.