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

Journal of Conflict and Security Law, 2008

U of Utah Legal Studies Paper No. 057-08-10

22 Pages Posted: 9 Sep 2008 Last revised: 29 Jun 2010

Amos N. Guiora

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

Multiple version iconThere are 2 versions of this paper

Date Written: September 8, 2008

Abstract

Traditional state v. state war is largely a relic. How then does a nation-state protect itself - preemptively - against the unseen enemy? Existing international law - the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373 - do not provide sufficiently clear guidelines regarding when a state may take preemptive 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-defense. Under this approach, the executive will have to convince a court, based on relevant, reliable, viable, and corroborated intelligence, that preemptive action is appropriate. This process leads to a check on the power o the executive by placing a judicial check on preemptive action, consequently establishing objective legal criteria for operational counterterrorism.

Muge Kinacioglu, Department of International Relations, Bilkent, University, Turkey, wrote a response to my article titled, "A Response to Amos Guiora: Reassessing the Parameters of the Use of Force in the Age of Terrorism: Pre-emptive Action and International Law." Tarcisio Gazzini, Faculty of Law, VU University, Amsterdam, also wrote a response titled, "A Response to Amos Guiora's Article on Pre-Emptive Self-Defence Against Non-State Actors."

Keywords: self-defence, state self-defence, anticipatory self-defence, self-defense, state self-defense, anticipatory self-defense, non-state actor, national security, terrorism, counterterrorism, pre-emptive action, international law, UN Charter, Article 51, Caroline Doctrine

JEL Classification: K10, K33, H56

Suggested Citation

Guiora, Amos N., Anticipatory Self-Defence and International Law - A Re-Evaluation (September 8, 2008). Journal of Conflict and Security Law, 2008 ; U of Utah Legal Studies Paper No. 057-08-10. Available at SSRN: https://ssrn.com/abstract=1264883

Amos N. Guiora (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
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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