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

Posted: 27 Oct 2008  

Amos N. Guiora

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

Multiple version iconThere are 2 versions of this paper

Date Written: Spring 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.

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: https://ssrn.com/abstract=1289155 or http://dx.doi.org/krn017

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
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