Abstract

http://ssrn.com/abstract=1289155
 


 



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


Amos N. Guiora


University of Utah - S.J. Quinney College of Law

Spring 2008

Journal of Conflict and Security Law, Vol. 13, Issue 1, pp. 3-24, 2008

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

Accepted Paper Series


Not Available For Download

Date posted: October 27, 2008  

Suggested Citation

Guiora, Amos N., Anticipatory Self-Defence and International Law-A Re-Evaluation (Spring 2008). Journal of Conflict and Security Law, Vol. 13, Issue 1, pp. 3-24, 2008. Available at SSRN: http://ssrn.com/abstract=1289155 or http://dx.doi.org/krn017

Contact Information

Amos N. Guiora (Contact Author)
University of Utah - S.J. Quinney College of Law ( email )
332 S. 1400 East Front
Salt Lake City, UT 84112-0730
United States
801-581-4295 (Phone)
801-581-6897 (Fax)
HOME PAGE: http://www.law.utah.edu/profiles/default.asp?PersonID=6581&name=Guiora,Amos..

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