Time Warp to 1945 - Resurrection of the Reprisal and Anticipatory Self-Defense Doctrines in International Law

39 Pages Posted: 30 Jun 2004

See all articles by Michael J. Kelly

Michael J. Kelly

Creighton University School of Law; American Bar Association, Business Law Section; American Society of International Law

Abstract

Widespread adoption of the U.N. Charter in 1945 outlawed warfare and pre-empted prior customary laws of war allowing such. Two of these dormant customs, reprisal and anticipatory self-defense, sporadically attempted to sputter back to life during the Charter period, but failed to regain international approval. However, after September 11, 2001, the American government effectively brought these doctrines back into play. The U.S. military action against Afghanistan embodied a classic reprisal response, and the U.S. invasion of Iraq was a pre-emptive strike in anticipatory self-defense. To the extent these resurrected laws of war become custom once again, the Charter would be seriously undermined and the world would find itself playing by rules of warfare dating from the pre-nuclear age; except this time with increasingly available weapons of mass destruction.

Keywords: reprisal, pre-emptive, strike, charter, terrorism, anticipatory, self-defense, Iraq, Afghanistan, war, custom, doctrine, charter, international, nuclear

JEL Classification: K33

Suggested Citation

Kelly, Michael J., Time Warp to 1945 - Resurrection of the Reprisal and Anticipatory Self-Defense Doctrines in International Law. Journal of Transnational Law & Policy, Vol. 13, No. 1, Pg. 1, Fall 2003. Available at SSRN: https://ssrn.com/abstract=473267

Michael J. Kelly (Contact Author)

Creighton University School of Law ( email )

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HOME PAGE: http://www.creighton.edu/law/faculty/kelly/index.php

American Bar Association, Business Law Section ( email )

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Chicago, IL 60610
United States

American Society of International Law

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Washington, DC 20008
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202-939-6000 (Phone)

HOME PAGE: http://www.asil.org/

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