Guiora on Re-Evaluating Anticipatory Self-Defense: Is There a Role for the Judiciary?

Two weeks ago I was in Houston for a conference at South Texas College of Law organized by Geoff Corn entitled Law, Ethics and the War on Terror (more on that in another post). While there I had the pleasure of meeting Amos Guiora. As many readers of this blog probably know, Amos teaches at S.J. Quinney College of Law, is a former lieutenant colonel in the Israeli Defense Force JAG Corps and blogs at National Security Advisors.

So, I am happy to note that Amos recently posted a new article on SSRN, Anticipatory Self-Defence and International Law – A Re-Evaluation. The article is published by the Journal of Conflict & Security Law. The abstract is as follows:

Traditional state v. state war is largely a relic. How then does a nation-state defend itself—preemptively—against an unseen enemy? Existing international law—the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373—do not provide sufficiently clear guidelines regarding when a state may take preemptive 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-defense. Under this approach, the executive will have to convince a court, based on relevant, reliable, viable and corroborated intelligence, that preemptive action is appropriate. This process leads to a check on the power of the executive by placing a judicial check on preemptive action, consequently establishing objective legal criteria for operational counterterrorism.

Moreover, a couple of responses to this piece are also available on-line (subscription required to download these essays):

Muge Kinacioglu (Department of International Relations, Bilkent University, Turkey), A Response to Amos Guiora: Reassessing the Parameters of Use of Force in the Age of Terrorism: Pre-emptive Action and International Law.

Tarcisio Gazzini (Faculty of Law, VU University, Amsterdam), A Response to Amos Guiora’s Article on Pre-Emptive Self-Defence Against Non-State Actors.

I think Amos’ article will be somewhat controversial to both the political Left and the Right: to the Left, for his defense of a conception of anticipatory self-defense and to the Right for his view that such decisions cannot be left to the Executive alone but should have a judicial check to avoid abuse of power. Controversial or not, this is a thought-provoking article that is well worth the read.