Inimical Inceptions of Imminence: A New Approach to Anticipatory Self-Defense Under the Law of Armed Conflict

46 Pages Posted: 12 Dec 2015

See all articles by Alan Schuller

Alan Schuller

Georgetown University - Center on National Security and the Law; Stockton Center for the Study of International Law

Date Written: 2014

Abstract

The Law of Armed Conflict (LOAC) has historically incorporated the term “imminence” across the bodies of law governing resort to armed force (jus ad bellum) and those which govern during an armed conflict (jus in bello), as an integral part of evaluating the legality of responding to a threat. Since these areas of the LOAC have traditionally been considered separate and distinct, the meaning of imminence within them has likewise been treated as distinguishable. But the modern threat environment, especially following the terrorist attacks of September 11, 2001, has proven that this division of imminence ad bellum and in bello is no longer tenable. Application of the concept of an imminent threat has been incoherent and inconsistent.

This Article argues that imminence should be a singular concept that applies logically in any situation and given any threat of armed attack. In making this argument, the Article presents a simple and flexible framework that can be applied by any person or entity even in light of crisis and imperfect information. Finally, it proposes three principles of imminence that can be applied in evaluating the legality of actions in self-defense across the spectrum of armed conflict.

Keywords: imminent, imminence, IHL, LOAC, ad bellum, in bello

JEL Classification: K33

Suggested Citation

Schuller, Alan, Inimical Inceptions of Imminence: A New Approach to Anticipatory Self-Defense Under the Law of Armed Conflict (2014). UCLA Journal of International Law and Foreign Affairs, Vol. 18, No. 2, 2014. Available at SSRN: https://ssrn.com/abstract=2701499

Alan Schuller (Contact Author)

Georgetown University - Center on National Security and the Law ( email )

600 New Jersey Avenue N.W.
Washington, DC 20001
United States

HOME PAGE: http://www.law.georgetown.edu/academics/centers-institutes/national-security/

Stockton Center for the Study of International Law

686 Cushing Road
Newport, RI 02841-1207
United States

HOME PAGE: http://www.usnwc.edu/Departments---Colleges/International-Law.aspx

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