Anticipatory Self-Defence and International LawA Re-Evaluation
Author: Guiora, Amos N.
Source: Journal of Conflict and Security Law, Volume 13, Number 1, 22 August 2008 , pp. 3-24(22)
Publisher: Oxford University Press
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 lawthe Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373does 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.
Document Type: Research Article
Publication date: 2008-08-22
- The Journal of Conflict and Security Law is a refereed journal aimed at academics, government officials, military lawyers and lawyers working in the area, as well as individuals interested in the areas of arms control law, the law of armed conflict and collective security law. The Journal aims to further understanding of each of the specific areas covered, but also aims to promote the study of the interfaces and relations between them.