Inimical Inceptions of Imminence: A New Approach to Anticipatory Self-Defense Under the Law of Armed Conflict
46 Pages Posted: 12 Dec 2015
Date Written: 2014
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: Suggested Citation