Anticipatory self-defence
415. The second element of legitimate use of
force is self-defence, which is an area of intense controversy
because the closely defined classical criteria take little account
of the prospect of terrorists or rogue states carrying out attacks
with WMD. Article 51 of the UN Charter[546]
outlines a state's right of self-defence, which is widely seen
as derived from the Caroline Criteria of 1837. The Caroline Criteria
are "commonly, though not universally, accepted both as acknowledging
a right of anticipatory self-defence and of circumscribing limits
to it."[547] The
original ruling is worth quoting in full:
It will be for…[Her Majesty's] Government
to show the necessity of self-defence, instant, over-whelming,
leaving no choice of means and no moment for deliberation. It
will be for it to show, also, that the local authorities of Canada,
even supposing the necessity of the moment authorised them to
enter the territories of the United States at all, did nothing
unreasonable or excessive; since the act, justified by the necessity
of self-defence must be limited by that necessity, and kept clearly
within it. It must be shown that admonition or remonstrance to
the persons on board the Caroline was impracticable, or
would not have been availing; it must be shown that day-light
could not be waited for; that there could be no attempt at discrimination
between the innocent and the guilty; that it would not have been
enough to seize and detain the vessel; but that there was a necessity,
present and inevitable, for attacking her in the darkness of night,
while moored on the shore, and while unarmed men were asleep on
board, killing some and wounding others, and then drawing her
into the current, above the cataract, setting her on fire, and
careless to know whether there might not be in her the innocent
with the guilty, or the living with the dead, committing her to
a fate which fills the imagination with horror.[548]
416. The doctrine is tightly defined. Constraints
on states calling for an armed response in the name of self-defence
include the narrow definition of an "armed attack" in
response to which a state could legitimately use force in self-defence,
outlined in the Nicaragua Case in 1986,[549]
and limitations on the interpretation of the "imminence"
of any attack, which curtails the doctrine of anticipatory self-defence.
417. The debate over the principle of "imminence"
arose in the Osirak reactor case, when Israel unilaterally bombed
an Iraqi nuclear reactor in 1981. The United Nations Security
Council unanimously condemned the attack as a "clear violation"
of Article 2(4), despite Israel's claims that the reactor posed
a threat to its security because of its potential role in any
Iraqi WMD programme.[550]
The grounds for condemnation were not that Israel had no right
to military reaction to a threat, but that the threat was too
distant to merit a military reaction, as we outlined in our Second
Report of Session 2002-03.[551]
In short, a reaction is permissible in principle, but depends
on a judgement of the particular facts. However, this situation
presents a major difficulty for states, which must make a swift
decision about the nature of a threat without complete intelligence
and in a situation where any tardy response could result in the
overwhelming harm of a catastrophic attack.
418. Encapsulating the debate, Mr Bethlehem told
us that:
The question remains as to whether this is the
law [of self-defence] as it should be and whether we should not
be looking again at the concept of imminence in the light of contemporary
threats with a view to identifying at this stage guidelines that
may assist in shaping the actions of States in the future.[552]
419. In the meantime, the real threat and extent
of the potential devastation presented by the proliferation of
WMD is pushing states towards a reappraisal of the doctrine of
anticipatory self-defence. For instance, the American National
Security Strategy sets out the USA's position. It states:
We must adapt the concept of imminent threat
to the capabilities and objectives of today's adversaries. Rogue
states and terrorists do not seek to attack us using conventional
means. They know such attacks would fail. Instead, they rely on
acts of terror and, potentially, the use of weapons of mass destruction—weapons
that can be easily concealed, delivered covertly, and used without
warning…The United States has long maintained the option
of pre-emptive actions to counter a sufficient threat to our national
security. The greater the threat, the greater is the risk of inaction—and
the more compelling the case for taking anticipatory action to
defend ourselves, even if uncertainty remains as to the time and
place of the enemy's attack.[553]
420. The Prime Minister also hinted at his support
for a reappraisal of anticipatory self-defence and the existing
order of international law in his speech on 5 March 2004.
Containment will not work in the face of the
global threat that confronts us. The terrorists have no intention
of being contained. The states that proliferate or acquire WMD
illegally are doing so precisely to avoid containment. Emphatically
I am not saying that every situation leads to military action.
But we surely have a duty and a right to prevent the threat materialising.[554]
The Prime Minister's words appear to support the
doctrine of anticipatory self-defence.[555]
421. One of the main justifications for the extension
of the doctrine of anticipatory self-defence is the credibility
gap that exists between actions by states and the existing legal
framework. Mr Bethlehem wrote in his submission that the "fact
that self-defence has for long been the only lawful basis for
the unilateral use of force by States has led to various attempts
to stretch the concept over the years."[556]
He described a number of cases in which self-defence did not fit
the exact criteria of the action, such as the Vietnamese intervention
against Pol Pot's Cambodia and the Tanzanian invasion of Idi Amin's
Uganda—both of which are now seen as cases of humanitarian
intervention—and contends that stretching the definition
of self-defence has weakened its efficacy. [557]
He pointed out the difficulties inherent in a classical interpretation
of self-defence, contending that a,
propensity towards doctrinal purity, to preserve
the integrity of the concept of self-defence, has also meant that
conduct which might otherwise have been regarded as lawful, being
in response to a prior armed attack or a series of such attacks
and proportionate thereto, has been condemned.[558]
422. Mr Bethlehem advocates extending the doctrine
of anticipatory self-defence. He told us:
I think that there are circumstances where the
boundaries of anticipatory self-defence need to be pushed out.
I am concerned that the language of imminence, as traditionally
interpreted, is rather too narrow and it is construed in a temporal
context only rather than in the context of the harm that is likely
to occur.[559]
He also wrote that:
To this end, I am of the view that there may
be some advantage to the new concept of 'catastrophic threat',
or more properly, the 'threat of catastrophic attack'. Faced with
an attack of this kind, it would in my view be appropriate to
begin to think beyond imminence to reasonable foreseeability,
ie, away from temporal notions of threat and towards action required
to neutralise the risk of catastrophic harm.[560]
423. The Attorney General was of a similar opinion
when he told the House on 21 April 2004:
The concept of what constitutes an 'imminent'
armed attack will develop to meet new circumstances and new threats.
For example, the resolutions passed by the Security Council in
the wake of September 11 2001 recognised both that large-scale
terrorist action could constitute an armed attack that will give
rise to the right of self-defence and that force might, in certain
circumstances, be used in self-defence against those who plan
and perpetrate such attacks and against those harbouring them,
if that is necessary to avert further such terrorist attacks.[561]
424. Some commentators, however, fear that expanding
the doctrine of anticipatory self-defence could lead to its use
in almost any dispute between states. Professor Sands argued in
his submission that anticipatory self-defence should be narrowly
defined because of its ambiguity and because in the wrong circumstances
it can cause the very conflicts it seeks to limit.[562]
He was less in favour of expanding the definition of the imminence
of any attack that Mr Bethlehem, however, since imminence,
has to be determined by reference to capability
and intent. There may be circumstances in which capability
could include the acquisition (by a state or a terrorist organisation
or even an individual on behalf of a terrorist organisation) of
material or component parts to be used in the manufacture of WMD,
and not possession of the finished product.[563]
He added the proviso that each case relies on an
accurate intelligence assessment of the situation, and that public
trust in government decision-making is restored and maintained.[564]
Clearly, public confidence in the use of intelligence to justify
military action has been negatively affected by the Iraq war.
425. Professor Sands also made clear the necessity
of examining the whole panorama of options available to states.
He told us:
I am not sure you can address these issues of
self-defence and the use of force against nuclear reactors in
a narrow context. You have to take it in its broader context of
the rules of international law which allow trade and international
movements in certain products, chemicals, nuclear materials, and
look at the use of force rules as part of that broader context…We
have to look at the whole multilateral framework, whether it is
the International Atomic Energy Agency or other international
rules and conventions, which ensures that there are appropriate
safeguards to stop this type of material floating around. The
two go hand in hand.[565]
426. However, strong opposition to legitimising
the concept of anticipatory self-defence exists. For instance,
Kofi Annan, the United Nations Secretary General, told the UN
General Assembly on 23 September 2003 that the logic of anticipatory
self-defence "represents a fundamental challenge to the principles
on which, however imperfectly, world peace and stability have
rested for the last fifty-eight years."[566]
We also raised concerns at the expansion of the doctrine of anticipatory
self-defence in our previous Report, saying that "there is
a serious risk that this will be taken as legitimising the aggressive
use of force by other, less law-abiding states [than the USA and
the UK]."[567]
Professor Brownlie, Professor of Public International Law, All
Souls College, Oxford, also argued that the language of Article
51 of the UN Charter "excludes the legality of pre-emptive
action."[568]
427. The threat of abuse of an expanding notion
of anticipatory self-defence is also a concern considering that
self-defence is curtailed by a principle of proportionality.[569]
Since a potentially catastrophic attack—or even the threat
of a strike if anticipatory self-defence becomes allowable—is
by its very nature out of all proportion, a proportional response
could potentially be catastrophic in its own right. As a result,
quantifying and even curtailing a state's right to a 'proportional'
response to a catastrophic attack—or the threat of one if
anticipatory self-defence becomes allowable—is a major challenge
for the international legal system.
428. We agreed that the concept of imminence
requires reassessment in our report on the Foreign Policy Aspects
of the War against Terrorism in December 2002, when we recommended
that the "Government work to establish a clear international
consensus on the circumstances in which military action may be
taken by states on a pre-emptive basis."[570]
However, the Government made clear in its response that it would
not set out how the United Kingdom would reach a consensus on
the use of anticipatory self-defence in the international community,
and that "our strong view is that such a process [reaching
a consensus] would be most unlikely to be successful."[571]
429. We conclude that the concept of 'imminence'
in anticipatory self-defence may require reassessment in the light
of the WMD threat but that the Government should be very cautious
to limit the application of the doctrine of anticipatory self-defence
so as to prevent its abuse by states pursuing their national interest.
We recommend that in its response to this Report the Government
set out how, in the event of the legitimisation of the doctrine
of anticipatory self-defence, it will persuade its allies to limit
the use of the doctrine to a "threat of catastrophic attack".
We also recommend that the Government explain its position on
the 'proportionality' of a response to a catastrophic attack,
and how to curtail the abuse of that principle in the event of
the acceptance of the doctrine of anticipatory self-defence by
the international community.
Humanitarian intervention
430. The right of states to intervene militarily
in the event of a humanitarian catastrophe has emerged in the
wake of the actions in Kosovo and in East Timor in 1999. These
two events pointed to a growing consensus in international law
that a right to intervene to prevent serious human rights abuses
is emerging. Mr Bethlehem wrote in his submission that
it is increasingly, although by no means commonly,
accepted that the unilateral use of force by a State may be justified
on grounds of overwhelming humanitarian necessity where there
is convincing evidence, generally accepted by the international
community as a whole, of extreme humanitarian distress on a large
scale which requires immediate and urgent relief.[572]
431. The Prime Minister went some way to setting
out what he called the doctrine of international community dealing
with humanitarian intervention in his speech of 5 March 2004,
when he said:
The only clear case in international relations
for armed intervention had been self-defence, response to aggression.
But the notion of intervening on humanitarian grounds had been
gaining currency. I set this out, following the Kosovo war, in
a speech in Chicago in 1999, where I called for a doctrine of
international community, where in certain clear circumstances,
we do intervene, even though we are not directly threatened.[573]
432. Professor Sands in his submission describes
the evolution of a right to humanitarian intervention, outlining
a report by an Independent Commission on Intervention and State
Sovereignty established by the Canadian government that provides
an "appropriate starting point for the future development
of any 'right to humanitarian intervention'".[574]
However, the lack of an independent body which could establish
whether a crisis justifies a humanitarian intervention and the
pressure of immediate action in the event of a crisis leaves aspects
of the doctrine of humanitarian intervention open to abuse. States
might camouflage a political agenda behind arguments of humanitarian
necessity or ignore a crisis because it has scant political significance.
433. We conclude that a doctrine of humanitarian
intervention appears to be emerging, but that its application
in the context of the war against terrorism raises difficult questions
of interpretation and embodies significant risk. We recommend
that the Government work to establish a consensus on when intervention
on humanitarian grounds is permissible, in order to prevent its
abuse by states pursing their national interest.
529 Foreign Affairs Committee, Second Report of Session
2002-03, Foreign Policy Aspects of the War against Terrorism,
HC 1196, para 154 Back
530
The National Security Strategy of the United States of America,
20 September 2002:http://www.state.gov/r/pa/ei/wh/c7889.htm Back
531
Ev 91 Back
532
'PM warns of continuing global terror threat', 10 Downing Street:
http://www.number-10.gov.uk/output/Page5461.asp Back
533
Ev 91, para1 Back
534
'PM warns of continuing global terror threat', 10 Downing Street:
http://www.number-10.gov.uk/output/Page5461.asp Back
535
The Caroline Criteria arose out of the Canadian rebellion of 1837,
when British forces seized a US merchant ship moored in the Great
Lakes which had supplied the Canadian rebels, fired it and sent
it over Niagara Falls. In the subsequent negotiations between
the US and Britain, US Secretary of State Daniel Webster wrote
to the British Government outlining an obligation on states acting
in self-defence to show "a necessity of self-defence, instant,
overwhelming, leaving no choice of means, and no moment of deliberation".
See DJ Harris, Cases and Materials on International Law, (London
1998) p 895 Back
536
DJ Harris, Cases and Materials on International Law, (London
1998) p 1049 Back
537
Ibid p 1060 Back
538
Ibid p 1057 Back
539
Tony Blair, PM warns of continuing global terror threat, at 10
Downing Street: http://www.number-10.gov.uk/output/Page5461.asp Back
540
Q 268 [Mr Bethlehem] Back
541
Ev 104 Back
542
Q264 [Professor Sands] Back
543
Q266 Back
544
Ev 193 Back
545
Ev 166 Back
546
Article 51: Nothing in the present Charter shall impair the inherent
right of individual or collective self-defence if an armed attack
occurs against a Member of the United Nations, until the Security
Council has taken measures necessary to maintain international
peace and security. Measures taken by Members in the exercise
of this right of self-defence shall be immediately reported to
the Security Council and shall not in any way affect the authority
and responsibility of the Security Council under the present Charter
to take at any time such action as it deems necessary in order
to maintain or restore international peace and security.See DJ
Harris, Cases and Materials on International Law, (London 1998)
p 1060 Back
547
Ev 105 Back
548
DJ Harris, Cases and Materials on International Law, (London 1998)
p 895 Back
549
Ibid p 866 Back
550
Ibid p 898 Back
551
Foreign Affairs Committee, Second Report of Session 2002-03, Foreign
Policy Aspects of the War against Terrorism, HC 1196,para 157 Back
552
Ev 106 Back
553
The National Security Strategy of the United States of America,
20 September 2002: www.state.gov/r/pa/ei/wh/c7889.htm Back
554
'PM warns of continuing global terror threat', 10 Downing Street:
http://www.number-10.gov.uk/output/Page5461.asp Back
555
WAT 69, para12 Back
556
Ev 92 Back
557
Ev 94 Back
558
ibid Back
559
Q269 [Mr Bethlehem] Back
560
Ev 105 Back
561
Ev 166 Back
562
Ev 92 Back
563
Ev 93 Back
564
ibid Back
565
Q276 Back
566
Ev 101 Back
567
Foreign Affairs Committee, Second Report of Session 2002-03, Foreign
Policy Aspects of the War against Terrorism, HC 196,para 154 Back
568
Ibid, Ev 22 Back
569
DJ Harris, Cases and Materials on International Law, (London 1998)
p 896 Back
570
Foreign Affairs Committee, Second Report of Session 2002-03, Foreign
Policy Aspects of the War against Terrorism, HC 1196, para 161
Back
571
Foreign and Commonwealth Office, Response of the Secretary of
State for Foreign and Commonwealth Affairs, February 2003, Cm
5739, para (t) Back
572
Ev 103 Back
573
'PM warns of continuing global terror threat', 10 Downing Street:
http://www.number-10.gov.uk/output/Page5461.asp Back
574
Ev 92 Back
