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Journal of Conflict and Security Law Advance Access originally published online on August 23, 2008
Journal of Conflict and Security Law 2008 13(1):3-24; doi:10.1093/jcsl/krn017
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© Oxford University Press 2008; all rights reserved. For permissions, please e-mail: journals.permissions@oxfordjournals.org

Anticipatory Self-Defence and International Law—A Re-Evaluation

Amos N. Guiora*

* Professor of Law, S. J. Quinney College of Law, University of Utah. Thanks to Artemis Vamianakis (S. J. Quinney College of Law, J. D. expected, 2009) for her invaluable research and editing contributions.


  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 law—the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373—does 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.


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