Why Preventive Self-Defense Violates the UN Charter

I am teaching IHL in Jericho this week, so I don’t have as much time as I’d like to weigh in on the increasingly surreal debate over whether the right of self-defense in Article 51 of the UN Charter permits the U.S. or Israel to attack a country that does not have nuclear weapons, could not build a nuclear weapon anytime soon, and is not — according to the U.S. itself — even trying to build a nuclear weapon.  Readers who are interested in taking the issue seriously, however, should check out Tom Ruys’ magisterial recent book “Armed Attack” and Article 51 of the UN Charter: Evolutions in Customary Law and Practice.  Ruys carefully analyzes state practice and opinio juris to determine whether customary international law permits states to engage in preventive self-defense — the use of military force in response to the threat of an armed attack that is not imminent.  Here is a long snippet from the book, discussing the international response to the report issued in 2004 by the UN’s “High-Level Panel on Threats, Challenges and Security,” which specifically rejected preventive self-defense but cautiously embraced pre-emptive self-defense — the use of military force in response to the threat of an imminent armed attack (the Caroline standard):

[T]here can be no doubt that even among States adhering to the ‘counter-restrictionist’ view, support for self-defence against non-imminent threats is virtually non-existent. Apart from the fact that the sponsors of Operation ‘Iraqi Freedom’ avoided this justification, it may be observed that many States, such as Germany, Japan, Switzerland, Uganda, Singapore or Liechtenstein, which professed support for anticipatory self-defence after 2002, nonetheless placed great weight on the imminence requirement. Germany, for instance, expressly denounced an erosion of the Charter framework and State practice via the notion of ‘preventive self-defence’. Likewise, the French politique de defense unequivocally ‘rejects . . . the notion of preventive self-defence’.

What is more, even the ‘traditional’ adherents of the counter-restrictionist interpretation of Article 51 generally appear to uphold the imminence requirement. Despite bold statements by its Prime Minister on the need to adapt the UN Charter, Australia’s response to ‘In Larger Freedom’ was rather cautious: it simply ‘[supported] reaffirmation by the Secretary-General that Article 51 of the Charter adequately covers the inherent right to self-defence against actual and imminent attack’. Israel called for an explicit recognition in the World Summit Outcome that States may use force in self-defence ‘in the event of both actual and imminent attacks’. As far as the British position is concerned, Attorney- General Lord Goldsmith in 2004 declared before the House of Lords that: ‘It is . . . the Government’s view that international law permits the use of force in self-defence against an imminent attack but does not authorize the use of force to mount a pre-emptive strike against a threat that is more remote’.

[snip]

This brings us to the third and last question, regarding the balance of majority and minority opinion among States. Interestingly, Reisman points to a ‘significant lack of comment’ on the interpretation of self-defence in the Reports of the High-Level Panel and the UN Secretary- General, which, nonetheless constituted ‘an attempt at adjustment of the Charter to meet part of the U.S. claim’. In light of this alleged tacit approval, one might be inclined to qualify the extended support for pre-emptive self-defence as a decisive shift in the opinio iuris of the international community. An analysis of State responses, however, learns that this conclusion is rather precipitate. Indeed, notwithstanding a number of positive (cf. supra) and rather vague reactions by several States, numerous UN Members opposed the acceptance of pre-emptive self-defence. Turkey, Argentina and Mexico, for instance, observed that the admissibility of self-defence in response to imminent threats was very controversial and warned that recognition thereof might lead to complications and abuse. Many States went even further and combined a rejection of the interpretation of Article 51 in the two Reports with an explicit affirmation that self-defence could only be exercised in response to an actual armed attack. In the words of Pakistan: ‘We certainly do not agree that Article 51 of the Charter provides for the pre-emptive, preventive or protective use of force. In our view, the language of Article 51 is quite explicit and highly limitative. It provides for the use of force in self-defence only in case of an actual attack against a Member State’.

Comparable statements were submitted by the representatives of Vietnam, Belarus, Bangladesh, Algeria, Iran, Cuba, Costa Rica and Egypt. Other States that explicitly or implicitly voiced opposition to pre-emptive self-defence include China, India, Syria, Malaysia and Indonesia. China, for example, argued that Article 51 needed neither rewriting nor reinterpretation: ‘[E]xcept in case of self-defence against armed attacks, any use of force must have the authorization of the Security Council. Any “imminent threat” should be carefully judged and handled by the Security Council . . .’. India noted that the framers of the Charter never intended Article 51 to cover anything beyond its text. Significantly, the Non-Aligned Movement in 2005 issued a position paper emphasizing that: ‘Article 51 . . . is restrictive and recognizes ‘the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.’ This Article should not be re-written or re-interpreted. This is supported by the practice of the UN . . .’.

In the end, because of the resistance of a considerable number of UN Members to the acceptance of pre-emptive self-defence, the relevant recommendations of the High-Level Panel were not included in the Outcome Document of the 2005 World Summit of the UN General Assembly. No trace of Article 51 can be found in the resolution. Instead, paragraph 79 simply reaffirms ‘that the relevant provisions of the Charter are sufficient to address the full range of threats to international peace and security.’

In light of the available evidence, it can be concluded that there has indeed been a shift in States’ opinio iuris insofar as support for pre-emptive self-defence, fairly rare and muted prior to 2001, has become more widespread and explicit in recent years. At the same time, it seems a bridge too far to claim that there exists today widespread acceptance of the legality of self-defence against so-called ‘imminent’ threats. Such assertion tends to forego the opposition of a considerable group of mainly Latin-American, north-African and Asian States. In the present author’s view, it would therefore be more appropriate to argue that the crack in opinio iuris among States has widened, without, however, identifying one approach or the other as the majority view. The implication is that, taking account of the Charter ‘baseline’ and the absence of a concrete precedent in State practice which convincingly demonstrates the international community’s support for some form of anticipatory self-defence, it is impossible to identify de lege lata a general right of pre-emptive – and a fortiori preventive – self-defence.

This is what careful analysis of customary international law looks like — a refreshing contrast to the myopic discussion provided by someone like Peter Berkowitz, who defends the legality of a pre-emptive attack on Iran solely on the basis of U.S. practice.  (And it’s worth noting that Berkowitz’s reliance on the invasion of Iraq is itself flawed; as Ruys points out, “[t]hose States supporting the operation carefully avoided any justification based on a broad reading of Article 51 UN Charter. Furthermore, a majority of States apparently held the opinion that the operation violated the UN Charter.”)  As much as it likes to pretend otherwise, the U.S. does not get to unilaterally dictate the content of customary international law.  And that is nowhere more clear than in the context of Article 51 and “preventive” self-defense, where the U.S. position is opposed not simply by “minor” states whose views the U.S. has no problem disregarding, but also by most of the world’s major powers: Germany, France, the UK, Australia, Japan, India, China.

So no, international law does not permit the U.S. or Israel to attack a country that does not have nuclear weapons, could not build a nuclear weapon anytime soon, and is not even trying to build a nuclear weapon.  Such an attack would be a flagrant violation of the UN Charter.