Pre-emptive Strike: an examination of International Law on the use of force

Abstract

In this dissertation it was shown that until the emergence of the Bush Doctrine, Customary International Law and the Charter made up the framework for determining when the use of force was legal. The inherent right of a valid self-defence was embedded in customary international law in particular the Caroline case. Since 1945 and with the happenings of 9/11, warfare has taken on new directions which impact world peace and global security today. The Bush Doctrine responded to these changes taking on pre-emptive strike to include preventive and anticipatory use of force as an option against non-conventional warfare such as terrorism, WMD and cyberattacks in the absence of an imminent attack. The academic questions debated on preventive or anticipatory self-defence centred on whether the current law governing self-defence was able to deal with evolving modern warfare. This analysis examined under what circumstances and authority could a state use preventive and anticipatory self-defences notwithstanding the controversies surrounding them. The aim and objective of the research was to understand the law under the Charter, Customary International Law and if the Bush Doctrine held any legitimacy for the extension of pre-emptive use of force. The results of the research showed that the UN Charter and Customary International law remain the foundations to determine when the use of force as a self-defence was legal. It also confirmed that the law cannot remain static to the changes happening in modern warfare. The research illustrated that extending pre-emptive strike to include preventive and anticipatory strikes caused uncertainty in the law. The conclusions in this study suggested it was essential to update Charter and Customary International Law with definitions of armed and imminent attacks by incorporating non-conventional warfare activities into the definitions, to re-examine the veto power of permanent members of the Security Council especially when a permanent member is involved in use of force against another state and that evidentiary standards need to incorporate non-conventional warfare so that the state having burden of proof was aware of the intelligence needed.