Housainou, 
I do not know what articles you read, but the article is talking to single people and not those in relationships, read the previous articles on The Other Woman, for example and the whole article on the paper . This is self explanatory that the article was talking about those not a relationship at all. 
The whole article is here: http://gambiadaily.co.uk/homepage/news/is-sensuality-really-a-sin. 
I think I will just post the URL from now on to avoid serious misunderstanding from those who read only what is posted here as the 'read more' may be missed. 
KR
Kejau

Date: Sat, 27 Sep 2014 00:26:39 -0400
From: [log in to unmask]
Subject: Re: IS SENSUALITY REALLY A SIN?
To: [log in to unmask]



Sent from my iPadQuestion to the wonderful lady . How would you feel if you discover your husband or boyfriend is flirting with much intelligent , prettier, sexier and younger ladies than you . If you can accept your other half flirting, I'm sure a lot of other people wouldn't take that lightly. Those of us who are strictly religious would call all sorts of flirting a sin but to some it's just a human being right to have fun. Again the answer to such a question depends on which quarters you are in. I would call sensuality a sin but that doesn't mean everyone will agree .Hous
On Sep 26, 2014, at 7:57 PM, Kejau Touray <[log in to unmask]> wrote:




IS SENSUALITY REALLY A SIN?Share
I am certain that most of you are religious, spiritual women trying to "fit in" to the modernWorld... and you might be wondering if flirting is "sinful."  If you are like most women, then you are probably worried about being called "slutty," "dirty," or "desperate." My question is when you flirt, are you really trying too hard? Is being sensual really "dirty" in the dating game? Many women hesitate to be sensual to the men they meet. They think that when they flirt, they are being slutty. Well like most things, there is a right and wrong way to be sensual with men. So are we really committing a "sin" by trying to be sensual and sexy?My answer would be "no." Personally, I do not believe God hates sensual women. Why would He? He invented sex! I am also certain that sensuality is something humanity is meant to enjoy. Of course, there is a catch. Like most other things we are meant to enjoy, we are supposed to enjoy sex responsibly.It is like this...Think of sensuality as being like food. It is not easy but try! Is food "dirty?" Of course not. Food is good, and it is ours to enjoy. It is our duty to enjoy food responsibly.How? By eating in moderation. By eating healthy. By watching your portions. Right?When you are not responsible with food, then you tend to overeat every chance you get. You then pay for it with obesity, high blood pressure, and arthritis... all that bad stuff! So yes, food is not dirty, but gluttony certainly is!Read MoreComment (0)Hits: 0







Date: Fri, 26 Sep 2014 12:20:01 -0400
From: [log in to unmask]
Subject: Re: Air strikes In Syria
To: [log in to unmask]

British Parliament just voted to authorize participation in air war over Iraq. Syria not included
Burama

On Sep 26, 2014, at 5:44 AM, Lamin Darbo <[log in to unmask]> wrote:Burama There was no UN authorisation for the Bush war in Iraq. In the current situation involving the so-called Islamic State (IS), the dynamics is enmeshed in finer international legal considerations.  For example, the Iraqi Government invited the US and others to defend it against the IS. There is no question of legality. Syria is a little different in light of the fact that it did not formally invite the US and its Arab and other allies to engage in the use of force on its territory. Without further analysis, the use of force against IS in Syria is unlawful under international law. BUT, factor in the irrefutable reality that IS represents a threat to both Syria and Iraq. Syria lost vast chunks of its territory to IS, and that territory is now used by IS to also attack Iraq. If Iraq has a right to go after IS's war making infrastructure, it appears  that its allies can indeed join its operations against IS in Syria. As far as the US, the whole thing is a legal fiction as America's principal consideration is geopolitical in light of its vital economic and political interests in that part of the world. Below I have for you a short discussion paper on the acceptable contours of the use of force in international public life. It was a discussion paper I presented to my class as part of an LLM course in International Criminal Justice at the University of East London  (2007-2008). It is quite short and I urge you to read it not only because it answers your questions as well as provide a good analytical framework when considering whether a particular intervention is legal or not.  LJDarbo ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------  

              When is the use of force legally
permissible today? 

 

Except in narrow circumstances,
the use of force is theoretically prescribed in international law.  If only by implication in Article 2(4)[1],
all other exceptions to the principle of the non-use of force in international
relations are numerated in the text of the United Nations Charter (“the
Charter”) under Chapter VII. Although a collective security system under
Security Council (“SC”) direction was envisaged, the crux of the controversy
over the use of force – be it under customary international law, or the Charter
- is rooted in the principle of self-defence from an “armed attack”.[2] Of
particular concern is the species of self-defence not preceded by an armed
attack.

 

In light of the arguably significant
failure of the collective security system, the application of the principle of self-defence
by state actors continues to generate tremendous controversy in international
law on the use of force. At the core of the Charter is the aspiration to make
violence in international relations a thing of the past. Coming on the heels of
World War II, and barely a generation between that war and the equally
devastating World War I, it is understandable that the victorious powers
expressed a wish to consign war to the archives of history.

 

Indeed, the concern with violence
was ostensibly so overwhelming that the Preamble to the Charter aspires thus:
“We the peoples of the United Nations determined to save succeeding generations
from the scourge of war which twice in our lifetime has brought untold sorrow to mankind.”[3] Article 1 aspires to
“maintain international peace and security, and to that end: to take effective
collective measures for the prevention and removal of threats to the peace and
for the suppression of acts of aggression or other breaches of the peace”.[4] In
a nutshell, the Preamble to, and Article 1 of, the Charter, read together,
articulate the logic and fundamental principles underlying the formation of the
United Nations (“UN”), i.e., an international organisation with a systemic
commitment to peaceful coexistence between states.

 

The air of optimism
notwithstanding, the architects of the UN – themselves leaders of countries
steeped in the art of conflict and warfare - were in no doubt regarding the
human propensity for violence, an appreciation arguably reflected in Article 1
in its reference to “threats to the peace” and “the suppression of acts of
aggression or other breaches of the peace”. 
This recognition notwithstanding, Article 2(4), albeit in qualified
form, expressly prohibits force by states in their dealings with each other,
although its second prong permits the use force where consistent with the
purposes of the UN[5].

 

Although the precise contours of
all circumstances legitimately capable of triggering the permission to use
force are difficult to ascertain, there are explicit Charter provisions
permitting the use of force under appropriate conditions. Once the SC
determined “the existence of any threat to the peace, breach of the peace, or
act of aggression”,[6] it is
empowered to utilise options either in measures short of force,[7] or
in enforcement action under Article 42. For present purposes,  it suffice to state that the aspirational
objectives of Article 1 are provided muscle in Article 42 to the effect that
the SC “may take such action by air, sea, or land forces as may be necessary to
maintain or restore international peace and security.” 

 

A careful examination of its
layout compels the conclusion that the Charter envisages a collective process
of either preventing, and, or, removing, “threats to the peace and for the
suppression of acts of aggression or other breaches of the peace”.[8] It
mandates the SC to oversee the operation of the collective security system by
recommending, or deciding, appropriate measures to take after determining a
threat to international peace. In the absence of a standing army as stipulated
in Article,[9] the SC
relies on member states individually, or in groupings, for implementation of authorised
enforcement operations aimed at restoring international peace.

 

Notwithstanding the wide gap
between principle and practice relative to the use of force in international
relations, there are some notable examples of SC-mandated collective security
operations since 1945. Cases in point included Operation Desert Storm that dislodged Iraq from Kuwait, and the
reinstatement of Aristide’s government in Haiti after its overthrow in a
military coup. Additionally, the Charter permits regional organisations to use
force in the “maintenance of international peace and security as are
appropriate for regional action”, and if authorised by the SC.[10] 

 

Although not entirely free of
rancour even in cases of SC-mandated action, such occasions of use of force are
relatively less controversial than when states resort to unilateralism, or even
multilateralism outside the ambit of explicit SC authorisation. As in virtually
all cases of use of force, justifications – no matter how tenuous - are
grounded in individual and collective self defence under either customary
international law, or Article 51 of the Charter, the other, and for our purposes,
far more significant exceptions to the prohibition of force in international
relations. Article 51 states that “nothing in the present Charter shall impair
the inherent right of individual and collective self-defence if an armed attack
occurs against a Member of the United Nations …”. It has been argued that the
wording of the Article incorporated customary international law on the use of
force. “Article 51 of the UN Charter recognises and affirms, but does not
limit, that “inherent” right under international law”.[11]

 

According to the International
Court of Justice (“ICJ”), an armed attack involves “sending by or on behalf of
a state of armed bands, groups, irregulars or mercenaries, which may carry out
acts of armed force against another state of such gravity as to amount to (inter alia) an actual armed attack
conducted by regular forces, or its substantial involvement therein”.[12]
As understood by the ICJ, “training or providing economic or military or
logistical or other assistance to rebels fighting against the central
authorities in another country … does not amount to an armed attack”,[13]
thereby falling short of conduct capable of legitimately triggering the use of
force in self-defence.

 

The controversy surrounding the
intent of Article 51 is not so much about the right to “individual and
collective self-defence” in the event of an actual armed attack, but what the
textual reference to “inherent” entails. For those who support a wider right to
self-defence, Article 51 is read as having incorporated the pre-Charter right
of customary self-defence. The principal argument of this school is that “at
the time of the conclusion of the Charter there was a wide customary
international law right to self-defence, allowing the protection of nationals
and anticipatory self-defence”.[14]

 

As articulated in The National
Security Strategy of the United States of America (“NSS 2002”), this is clearly
the thinking of America (“the US”) in its contention that international law has
for centuries “recognised that nations need not suffer an attack before they
can lawfully take action to defend themselves against forces that present an
imminent danger of attack”.[15] For
the US
and other proponents of this view, the Charter cannot be read as nullifying the
recognised pre-existing right of anticipatory self-defence without expressly
saying so.[16] As
force continues to be a way of life in international affairs, it is not
entirely surprising that some “eminent American and British jurists” advocate the
position that “Article 51 did not suppress the pre-existing international rule
on anticipatory self-defence, which was, therefore, left unaffected by the
Charter”.[17] In an
area of great controversy, this perspective is by no means the last word on the
matter.

 

In the view of those opposed to
the use of force in anticipatory self-defence in international law, Article 51
permits self-defence only in the narrow case of an armed attack, and as an exception
“to the prohibition of the use of force in Article 2(4)”, it should be
construed restrictively.[18] For
those of this persuasion, “the limits imposed on self-defence in Article 51
would be meaningless if a wider customary law right to self-defence survives
unfettered by these restrictions”.[19]

 

On the compatibility of
anticipatory self-defence with Article 51, matters are no more enhanced by the
absence of an authoritative judicial pronouncement on the question. Although
the ICJ never had to conclusively address the matter, what it said on
anticipatory self-defence suggests a live issue in international legal discourse:

 

… on one essential point, this treaty itself refers to
pre-existing  customary international 

law … in the actual text of Article 51… The Court
therefore finds that Article 51 of the

Charter is only meaningful on the basis that there is
a “natural” or inherent right of 

self-defence, and it is hard to see how this can be
other than of customary nature, even

if its present content has been confirmed and
influenced by the Charter.[20]

 

There appears to be no
disagreement between the competing positions that by Article 38(1)(b) of the
Statute of the ICJ, “international custom, as evidence of a general practice
accepted as law”, is recognised as one of the sources of international law
available to the Court for application in matters before it.[21]
The question, as always, is whether customary international law on anticipatory
self-defence survives the Charter.

 

As a species of self-defence,
there is no question that anticipatory self-defence was a right available to
states in the pre-Charter period. It stands for the simple proposition that use
of force in international relations is a justified pre-emptive measure against
an imminent armed attack. Much as appearance may suggest that the current US administration
inspired pre-emptive self-defence after the attacks on the World Trade
 Center, and the Pentagon (“the
2001 attacks”), the doctrine unquestionably predates the Charter and had been
utilised by states on numerous occasions after 1945. 

 

Considered the classic
illustration of pre-emptive self-defence, the “Caroline incident”[22]
enjoys wide acceptability as providing the doctrinal justification for this
species of self-defence. In that affair, Canadian rebels used US territory
for insurgency preparations against the British. The steamer Caroline “reinforced and supplied the
rebels in Canada from ports in the US”, thereby prompting the British to  cross into the US, “seized the Caroline” in New York, “set it on fire
and cast the vessel adrift so that it fell to its destruction over the Niagara
Falls”.[23]
The operation killed two US
citizens. Though inconclusive, the factual circumstances of the incident
suggest that the US
either could not, or would not utilise its police powers against the
insurgents, leaving Britain
with self-help as its sole option. 

 

Although the US appeared not to
take issue with the doctrine per se,
its position was famously expressed to the effect that “there must be a
‘necessity of self-defence, instant, overwhelming, leaving no choice of means,
and no moment for deliberation’, and the action taken must not be ‘unreasonable
or excessive’, and must be ‘limited by that necessity and kept clearly within
it’”.[24]
In the sense that the Caroline affair
was not adjudicated in a court of law, what value it has as precedent may be
rooted in customary international law. As enunciated in the diplomatic
exchanges, it is still generally accepted that for anticipatory self-defence to
apply, the threat of an armed attack must be imminent. 

 

From the era of the doctrine’s
original formulation, through the early twentieth century, impending armed
attacks - even in insurgencies reliant on the surprise element - were fairly easy
to ascertain. In the context of the Caroline
incident, hostilities were clearly ongoing, and the British were virtually certain
of being attacked as part of the conflict. In its current practice, and notwithstanding
that “legal scholars and international jurists often conditioned the legitimacy
of pre-emption on the existence of an imminent threat – most often a visible
mobilisation of armies, navies, and air forces preparing to attack”, the US would not
let its “enemies strike first”.[25] Under
Bush, the US
is ideologically committed to pre-emptive self-defence.

 

Undoubtedly, weapons technology
has developed in ways that were unthinkable by early nineteenth century
standards. This consideration appears to be the rationale underlying the US argument for
expanding the contours of self-defence from anticipation to pre-emption, i.e.,
prevention. Although the principles are conceptually identical, the criteria of
imminence underwent drastic restatement as applied to pre-emptive self-defence.
“We must adapt the concept of imminence to the capabilities and objectives of
today’s adversaries. Rogue states and terrorists … 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”.[26] 

 

Similarly, the United Kingdom’s
(“UK”)
Foreign Affairs Committee agreed that “the notion of imminence should be
reconsidered in the light of new threats to international peace and security”.[27]
Even commentators critical of the legality of the war on Iraq recognised
this situation:

 

The better argument in the debate appears to support a
cautious view of anticipatory 

self-defence, with the recognition that the concept
must be interpreted consistently with 

the Charter’s goal of limiting force. The alternative
of leaving the words of Article 51 

frozen in an earlier era, which was characterised by
different adversaries and weapons 

systems, could quickly reduce the obligations – and
the system of collective security they

 underpin – to
irrelevance.[28]

 

Even as the 2001 attacks appear
to act as the catalyst for the thinking behind NSS 2002, those incidents should
not be regarded as the immediate reason for the US conversion to the doctrine of pre-emptive
self-defence. If the principle had found express articulation in NSS 2002, it
is worth underscoring the fact that the US has long been an adherent of the
use of force in pre-emptive self defence. As one of a few state practitioners
of the doctrine in international relations, the US commitment to pre-emptive use of
force is unflinching: 

 

The United
  States has long maintained the option of
pre-emptive actions to counter 

a sufficient threat to national security. The greater
the threat … 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. To
forestall or prevent such hostile acts by 

our adversaries, the United States will, if necessary,
act pre-emptively.[29]

 

As in anticipatory self-defence,
the whole idea underlying pre-emptive self-defence is predicated on the
argument that “… it would be naïve and self-defeating to contend that a state
should await the attack by another country, in full knowledge that it is
certain to take place and likely to involve the use of very destructive
weapons”.[30] Stated
differently, pre-emptive self-defence, as a doctrine, sidesteps both the
requirement of an armed attack in Article 51, and of imminence in anticipatory
self-defence as propounded in the Caroline
incident. Indeed, NSS 2002 expressly stated that the US would not be deterred by
uncertainty as to “time and place of the enemy’s attack”.[31]

 

On the scope of legitimate force
in international law, either in situations of conventional, or pre-emptive
self-defence, there appears to be consensus that it must be “proportional to
the armed attack and necessary to respond to it”[32]
In a series of cases, the ICJ “reaffirmed that necessity and proportionality
are limits on all self-defence, individual and collective”.[33] 

 

In my view, the concept of proportionality
may constitute a non-issue in the sense it is not even capable of
approximation, much less of precision. Utilising the US argument for a reappraisal of
imminence, it goes without saying that the destructive capacity of modern
weaponry makes nonsense of proportionality on the use of force in self-defence.
A comparative analysis of the destruction caused by the 2001 attacks, and the
devastating consequences of the war on Afghanistan, provide a striking illustration
on the point. In the circumstances of that conflict, the near total destruction
of Afghanistan
by US-led NATO forces appears to attract no consequences, and as a limitation
therefore, proportionality may be of no practical efficacy. Applied to Iraq, the
catastrophic failure of proportionality is even more poignant. Without explicit
SC authorisation and with no weapons of mass destruction to justify the
pre-emptive argument for the war even ex
post facto, the unrequited destruction wrecked on Iraq hardly
manifests proportionality. 

 

Article 51 placed another
limitation on all use of force in self defence by making the right temporary “until
the Security Council has taken the measures necessary to maintain international
peace and security”. Any SC measures must be effective and not limited to mere
pronouncements urging both parties to refrain from the use of force. “Self-defence
may continue until the SC has taken effective action rendering armed force by
the victim state unnecessary and inappropriate, and hence no longer legally
warranted”.[34] Article
51 imposes a reporting requirement on the party claiming the use of force in
self-defence, and all action must cease once the SC steps in. In any case,
self-defence must be restricted to “repelling the armed attack”, as both
“Article 51 and the corresponding norm of general international law … prohibit
prolonged military occupation and annexation of territory belonging to the
aggressor”.[35]

 

 

 

 

NSS 2002 and state practice on pre-emptive self-defence

 

As suggested by its title, NSS
2002 was principally concerned with the question of US security in a world ostensibly
altered by the destructive capabilities of modern weaponry. It is unclear if
even Bush would have postulated such an uncompromising and far reaching policy position
without the 2001 attacks as a backdrop. The fundamental and most controversial thesis
of NSS 2002 was its claim to the right of  using pre-emptive force to defeat the “deadly
challenges … from rogue states and terrorists” committed to the destruction of
the US.[36] 

 

In a bid to disallow the enemies
of the US
to “strike first”, Bush argued in NSS 2002 that “deterrence based only upon the
threat of retaliation is less likely to work against leaders of rogue states
more willing to take risks …”.[37]
Echoing the legal limitations on the use of force, and the conditions attached
to anticipatory self-defence, NSS 2002 nevertheless rejected the notion that
self-defence only kicks in after an armed attack, even as it restated its
understanding of imminence. In essence, subjective analysis of threats to US national
security grounded in a conflation of the need for anticipation and pre-emption,
will, in self-fulfilling manner, inevitably lead to the pre-emptive use of
force against unfriendly states. 

 

In the post Charter period before
2001, ostensible pre-emptive self-defence was resorted to by Israel in 1967
against Egypt
when the latter blockaded the Gulf of Aqaba.[38]
On this occasion, “the UN did not condemn Israel … for its attack on Egypt …”.[39] Indeed,
“Israel’s
attack and occupation of the Sinai was seen by many as a legitimate response”.[40] 

 

More controversial was Israel’s
bombing of Iraq’s
OSiraq nuclear reactor in 1981. In SC debates leading to the unanimous
‘condemnation’ of Israel, even Iraq, in apparent acceptance of the validity of
the doctrine, referred to the Caroline
as setting the standard for legitimate action in this area, at paragraphs 14
and 15, of S/PV 2282, its complaint to the SC. Even as it sidestepped the issue
of pre-emption, France
nevertheless saw the Israeli action, at paragraph 42, as “a clear violation of
the rules of international law”. For Spain:

 

The Charter of the United Nations clearly enshrines
the principle of refraining from the 

threat or use of force; and when, in Article 51, it
refers to the inherent right of self-defense, 

it limits that right to a case of armed attack…. The
Charter does not allow for … preventive

action by which a Member State
could set itself up as judge, party and policeman …”[41] 

 

For the US, and the UK, Israel’s action
in bombing OSiraq - admittedly unjustified on the facts - did nothing to
undermine the fundamental doctrinal basis of the use of force in pre-emptive
self-defence. In this particular case, their position was that “there was no
evidence that the reactor had been going to be used for making atom bombs …”.[42] For
the UK,
Israel’s
conduct was "a grave breach
of international law” because the attack “was not a response to an armed attack
on Israel
by Iraq.
There was no instant or overwhelming necessity for self-defence. Nor could it
be justified as a forcible measure of self-protection”.[43] In
the rather colourful language of China, Israel’s argument of pre-emption
was “out-and-out gangster logic”.[44] On
the other hand, countries such as Egypt, and Mexico,
“expressly refuted the doctrine of anticipatory self defence” for its amenability
to abuse.[45]

 

In light of its ready acceptance
of pre-emptive self-defence, the US pretended to have taken recourse
to the doctrine on several occasions, including bombing Libya in 1986
in response to that country’s alleged attack on a nightclub in West Berlin that killed an American and injured others.[46] According
to then President Reagan, “the bombing was justified under Article 51 … as a
pre-emptive action against Libya’s
terrorist installations”.[47] Similarly,
Iraq
was bombed in 1993 for sponsoring a failed assassination plot against former
president Bush. In the SC, the Clinton
administration justified its conduct on grounds that the alleged attempt on
Bush’s life was an attack on the US, and was therefore entitled to
use force “under Article 51 of the
UN Charter, which provides for the exercise of self-defence in such cases. Our
response has been proportionate and aimed at a target directly linked to the
operation against President Bush …”.[48] Notwithstanding US justifications, in
so far as these  responses were grounded
in prior attacks, its conduct “had strong punitive connotations and also
pursued a primarily deterrent purpose”.[49]

 

Additionally, the US in 1998 ‘pre-emptively’
bombed “terrorist training camps in Afghanistan”, and an “alleged chemical
weapons factory in Sudan” after attacks on US embassies in Tanzania, and Kenya.[50] According
to the Clinton
administration, “the US
acted in exercise of our inherent right of self defence consistent with Article
51 … These strikes were a necessary and proportionate response to the imminent
threat of further terrorist attacks against US personnel and facilities”.[51]
The declared purpose of the strikes was prevention and deterrence against
further terrorist threats.[52]

 

Perhaps the most devastating
recent case of ostensible pre-emptive self-defence was Operation Iraqi Freedom, the 2003 US-led war that ousted Saddam
Hussein from power. As the invasion of Iraq was not explicitly authorised
by the SC, the aspect of the justification of pertinence was the use of force
in pre-emptive self-defence against Iraq’s weapons of mass destruction.
In the Authorisation for the Use of
Military Force Against Iraq, the Congress authorised Bush “to use the armed
forces of the US as he determines to be necessary and appropriate in order to
(1) defend the national security of the US against the continuing threat posed
by Iraq …”[53] As the
second most important participant in the war, the UK advanced a partial
justification of preventing Iraq from acquiring and using weapons of mass
destruction. It is instructive that to this day, the US, and the UK, with their
huge intelligence arsenals, could not provide a shred of actionable evidence
pertaining to Iraq’s
weapons of mass destruction.  

 

The issue of whether Article 51,
and, or, customary international law, permits the right of pre-emptive
self-defence is not made any clearer by dithering in both the GA, and the SC.[54] Other
past practitioners of the doctrine included Portugal, and Apartheid South
Africa, both of whom, in their unpopular conflicts against national liberation
movements, claimed to have taken pre-emptive action “against incursions from
neighbouring states” in frequent cross border raids. Although generally
condemned for their troubles on tangential grounds, both the SC and GA avoided
“authoritative pronouncements on the issue of principle – the legality of
anticipatory self-defence”.[55] 

 

For the sake of completeness, and
cognisant of victors justice, Japan’s
war aims allegedly influenced the Tokyo Tribunal’s decision that “the Dutch
declaration of war on Japan
… was justified on grounds of self-defence… although Japan had not attacked Dutch
territories in the Far East”.[56]
In later years, Japan
itself took a broader view of self-defence, and Canada did the same in 1981. When Iraq claimed to
have pre-emptively attacked Iran
in 1980, it was not even condemned in the UN.[57] 

 

An essentially militaristic
foreign and security policy tool, pre-emptive self-defence is not equally
available to all state actors as it involves the projection of military might
beyond national boundaries, sometimes across nations, and even entire
continents. In itself, this does not invalidate pre-emptive self defence as
meeting the requirements of state practice considering the cumulative
international influence of its frequent practitioners and doctrinal adherents.
Although a substantial proportion of states appear to view pre-emptive
self-defence as not permitted by Article 51, “given the importance and the
role” of its state supporters, “one may not conclude that there is universal
agreement as to the illegality under the UN Charter of anticipatory
self-defence”.[58]

 

 

Concerns about the legality of pre-emptive self-defence

 

Like states and other
international actors, commentators are likewise split in their views on the
permissibility of the use of force in pre-emptive self-defence. For some,
self-defence is regarded as an exception to the use of force “although its
extent is controversial”.[59]
It is not entirely clear that Article 51 is an exception to Article 2(4) as
understood by Akehurst. Indeed, Article 51 appears to be a free standing
provision, not necessarily a proviso to Article 2(4). In the context of the
Charter, it seems more logical to view Article 51 as an exception to the
collective security system envisaged by Chapter VII. Clearly, the authority to use
of force to maintain or restore international peace and security in the UN
system is located in the SC under its Chapter VII powers.

 

Some argue that Article 51’s
reference to a concluded incident, i.e., “if an armed attack occurs”, precludes
a “right of anticipatory self-defence against an imminent danger of attack”.[60] There
is no question that pre-emptive use of force in self-defence as a doctrine in
the use of force in international relations has a particular disquiet about it,
but recent criticisms of the concept appear to be less than outright
condemnation, more a disapproval of the broad contours of NSS 2002. “By
expanding the right of pre-emption against an imminent attack into a right of preventive
war against potentially dangerous adversaries, the Bush administration has
created a ‘loaded weapon’ that can be used against the United States …”.[61]

 

Other commentators take the view
that on the facts, a legally defensible case was not made for the war against Iraqi:

 

            The facts did not support a case for pre-emption, as
there was neither imminence 

nor necessity.
As a result, the Iraqi war seemed, at best, to qualify as an instance of

preventive war, but there are strong legal, and political
reasons to deny both legality 

and legitimacy to such a use of force. Preventive war
is not an acceptable exception 

to the Charter system …[62] 

 

In the words of Miriam Sapiro,
the issue of self-defence in the Iraq war was as dubious as that of the
claim of implicit authorisation grounded in SC resolutions:

 

It would also have been difficult to justify the
invasion of Iraq
as an exercise of classic

anticipatory self-defence … Preventive war therefore
became the primary political

justification the US used to
explain its actions against Iraq,
despite the absence of support 

in international law and the risk that
preventive war could lead to an unravelling of the

constraints governing force…[63]

 

As a doctrine, pre-emptive self
defence contains within it the possibility of abuse in that certainty about
facts triggering any action may not be easy to establish. “It may thus be
contended that, however unrealistic
the ban on pre-emptive self-defence deriving from Article 51 may be in the
present circumstances of warfare, States prefer to avoid risks of abuse”.[64] 

 

 

Support for pre-emptive self-defence

 

Other commentators take the view,
along the lines of the NSS 2002, that “the US was justified in taking
pre-emptive action” against Iraq,
and “that the right of self-defence recognised in Article 51 . . . provided
authority for the use of force”.[65]
According to John Yoo:

 

            Factors to be considered should now include the
probability of an attack; the likelihood 

that this probability will increase, and therefore the
need to take advantage of a limited 

window of opportunity; whether diplomatic alternatives
are practical; and the magnitude 

of the harm that could result from the threat …[66]

 

The fundamental argument for the
likes of Yoo is that “the traditional requirements for self-defence need to be
re-interpreted in the modern context of WMD, rogue states and international
terrorism”.[67]  

 

For others in support, there is a
“need to read Article 51 of the UN Charter as a practical tool for states and
in its historical context”.[68]
In Wedgewood’s view, a state can “resort to the use of preventive force in
unique cases”, especially where “a given regime might have a record of conduct
so irresponsible and links to terrorist groups so troubling that the
acquisition of WMD capability amounts to an unreasonable danger that cannot be
abided”.[69]

 

A more nuanced proposition of the
practicality argument was advanced thus: 

 

            In the end, each use of force must find legitimacy in
the facts and circumstances that 

the state believes have made it necessary. Each should
be judged not on abstract concepts, 

but on the particular events that gave rise to it.
While nations must not use pre-emption as a

pretext for aggression, to be for or against
pre-emption in the abstract is a mistake. The use 

of force pre-emptively is sometimes lawful and
sometimes not.[70]

 

A review of relevant literature
suggests that outright restriction of the ambit of Article 51 to an actual
armed attack is a losing argument. Set up in response to the 2001 attacks, the Secretary General’s High Level on Threats,
Challenges and Change (“the Panel”) took the view there is “a right of
anticipatory self defence”.[71] In
the words of the Panel:  

 

states have an inherent right to self-defence,
enshrined in Article 51. Long-established 

customary international law makes it clear that states
can take military action as long as 

the threatened attack is imminent, no other means would
deflect it, and the action is 

proportionate.[72]

 

In response to the Panel, the
Secretary General accepted that “imminent threats are fully covered by Article
51, which safeguards the inherent right of sovereign States to defend
themselves against armed attack. Lawyers have long recognized that this covers
an imminent attack as well as one that has already happened”.[73] The
Panel was “tasked
with examining the major threats and challenges the world faces in the broad
field of peace and security … and making recommendations for the elements of a
collective response …”.[74] The
report of the Panel was broadly, if cautiously welcomed, and “several states
now appear willing to accept” that “imminent threats are fully covered by
Article 51”, although they “do not go as far as to accept a right of purely
pre-emptive action in the absence of an imminent threat”.[75] As
the Panel’s report is merely recommendatory, its full impact on international
relations may not be immediately felt. 

 

Nevertheless, a consensus is
emerging that if the criteria of imminence could be met, anticipatory
self-defence would be acceptable if arguments were put to, and approved by the
SC. “For those impatient with such a response, the answer must be that in a
world full of potential threats the right to the global order and the norm of
non-intervention is simply too great for the legality of unilateral preventive
action”.[76] It is
instructive that global players like the UK are “opposed to any attempt to
reach consensus internationally on the precise circumstances in which military
action in anticipatory self-defence may be taken by states”.[77] 

 

Conclusion

 

As Article 51 talks about an
“inherent” right to use force in self-defence, I contend for the proposition
that pre-emptive force - under the right set of circumstances - appears to
remain a valid option for states legitimately apprehensive of potential attack.
In so far as enforcement action under SC authorisation present no fundamental
issues of contention, and as views continue to coincide to the effect that
anticipatory, and, or, pre-emptive use of force may be legal if the criteria of
imminence is satisfied, it appears
the main area of concern would be the NSS 2002-type situation. Since neither
the Panel, nor the Secretary General, were in a position to provide any
indication as to what may constitute an ‘imminent’ situation, I take the view that
the inherent interpretive room leaves intact the loophole around the use of
force not preceded by an armed attack.

 

Moreover, it appears
inconceivable that the likely state practitioners of anticipatory, and, or, or
pre-emptive use of force would knock on the door of the SC for permission to
launch an attack. Consequently, even the apparent emerging consensus on the
issue is unlikely to fully resolve the international disagreements surrounding
it. For what it may be worth, the only cause for hope in this controversial
area must be that if the practitioners are willing to restrain themselves, the
circumstances capable of justifying the pre-emptive use of force are likely to be
few and far between.

 

 

 

 

Lamin Darbo

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sources

 

A
more secure world: Our shared responsibility ‘Report of the Secretary-General’s High-level Panel on Threats,
Challenges and Chang’,  http://www.un.org, (2004).

 

Antonio
Cassese, International Law (Oxford: Oxford University
Press, 2005)

 

Christine
Gray, International Law and the Use of
Force (Oxford:
Oxford University Press, 2004)

 

Christine
Gray, The Use of Force and the International Legal Order, in Malcolm D Evans
(ed.), International Law (Oxford: Oxford University
Press, 2006)

 

Dominic
McGoldrick, From 9-11 to the Iraq War 2003:
International Law in an Age of Complexity (Oxford and Portland: Hart Publishing, 2004)

 

http://www.un.org

 

In
Larger Freedom: Towards Development, Security and Human Rights for All, http://www.un.org, (2005)

 

John
Yoo, International Law and the War in Iraq, American Journal of International Law, Vol. 97, (2003), 563

 

Malcolm
D Evans (Ed.), International Law (Oxford: Oxford University
Press, 2006)

 

Military and Paramilitary Activities in
and Against Nicaragua
(Nicaragua
v United States of America)
(merits), http://www.icj-cij.org/, at $$
176-182

 

Miriam
Sapiro, Iraq:
The Shifting Sands of Preemptive Self-Defense, American Journal of
International Law, Vol. 97, (2003), 599

 

Peter
Malanczuk, Akehurst’s Modern Introduction
to International Law (Abingdon: Routledge, 1997)

 

Richard
A Falk, What Future for the UN Charter System of War Prevention?, American
Journal of International Law, Vol.97, (2003), 590

 

Richard
N Gardner, Neither Bush nor the Jurisprudes,
American Journal of International Law, Vol. 97, (2003), 585

 

Ruth Wedgwood, The Fall
of Saddam Hussein: Security Council Mandates and Preemptive Self-Defense, American
Journal of International Law, Vol. 97, (2003), 576

 

The
National Security Strategy of the United States, Part V (September
2002)

 

William
H Taft IV and Todd F Buchwald, Preemption, Iraq and International Law, American
Journal of International Law, Vol. 97, (2003), 557

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 









[1] Article 2(4) UN Charter …or in any other manner inconsistent with the
Purposes of the United Nations.





[2] Article 51 of the UN Charter





[3] Preamble to the UN Charter





[4] Article 1 of the UN Charter





[5] Supra n. 1





[6] Article 39 of the UN Charter





[7] Article 41 of the UN Charter





[8] Article 39 of the UN Charter





[9] Article 47 of the UN Charter





[10] Christine Gray, The Use of Force and the International
Legal Order, in Malcolm D Evans (Ed.), International
Law (Oxford:
Oxford University Press, 2006), at 614





[11] John Yoo, International Law and the War in Iraq, American
Journal of International Law, Vol. 97, (2003), 563, at 571





[12] Military and Paramilitary Activities in and Against
Nicaragua (Nicaragua
v United States of America)
(merits), http://www.icj-cij.org,
at $$ 176-182





[13] Antonio Cassese, International
Law (Oxford:
Oxford University Press, 2005), at 365





[14] Christine Gray, International
Law and the Use of Force (Oxford:
Oxford University Press, 2004), at 98





[15] Dominic McGoldrick, From 9-11 to the Iraq
War 2003: International Law in an Age of Complexity (Oxford and Portland: Hart Publishing, 2004), at 223





[16] Supra n. 14, at 98





[17] Supra n. 13,
 at 358





[18] Supra n. 14,
at  98





[19] ibid,  98





[20] Supra n. 12,
at $ 176





[21]Peter  Malanczuk,
Akehurst’s Modern Introduction to
International Law, (Abingdon: Routledge, 1997), at 314





[22] Supra n. 14, at
120





[23] Supra n. 21,
at 36





[24] ibid, 314





[25] The National Security Strategy of the United States,
Part V (September 2002)





[26] ibid





[27] Supra n. 15





[28] Miriam Sapiro Iraq: The Shifting Sands of
Preemptive Self-Defense, American Journal of International Law, Vol.. 97
(2003), 599, at 601





[29] Supra n. 25 





[30] Supra n. 13,
at 358





[31] Supra n. 25





[32] Supra n. 13,
at 355





[33] Supra n. 14,
at 121





[34] Supra n. 13,
at 355





[35] ibid,  355





[36] Supra n. 25





[37] ibid





[38] Supra n. 21, at 313





[39] Supra n. 13,
at 360





[40] Supra n. 21,
at 313





[41] S/PV.2282, at par. 78, 15
 June 1981





[42] Supra n. 21,
at 313





[43] Supra n. 41,
at par. 106 





[44] ibid, par.
89





[45] Supra n. 13,
at 360





[46] ibid, 356





[47] Supra n. 21, at 316





[48] Supra n. 13,
at 356





[49] ibid





[50] ibid





[51] ibid





[52] ibid





[53] Supra n. 14,
at 182





[54] Supra n. 10, at 601





[55] Gray, International
Law and the Use of Force, at 132





[56] Supra n. 21, at 314





[57] Supra n. 14,
at 360 (see generally)





[58] ibid, 361 





[59] Supra n. 21,  at 311





[60] ibid, 311





[61] Richard
N Gardner Neither Bush nor the Jurisprudes, American Journal of International
Law, Vol. 97, (2003) 585, at 588





[62] Richard A Falk, What Future for the UN Charter System
of War Prevention?, American Journal of International Law, Vol. 97, (2003)  590, at 598





[63] Miriam Sapiro, Iraq: The Shifting Sands of
Preemptive Self-Defense, American
Journal of International Law, Vol. 97, (2003), 599, at 603





[64] Supra n.13, at 361





[65] Supra n. 11,
at 574 





[66] ibid, 574





[67] ibid





[68] Ruth Wedgwood, The Fall of Saddam Hussein: Security
Council Mandates and Preemptive Self-Defense, American Journal of International
Law, Vol. 97, (2003), 576, at 584





[69] ibid, 584





[70] William H Taft IV and Todd F Buchwald, Preemption, Iraq and
International Law, American Journal of International Law, Vol. 97, (2003), 557





[71] Supra n. 10, at
604





[72] A more secure world: Our shared responsibility ‘Report
of the Secretary-General’s High-level Panel on Threats, Challenges and Change’,
http://www.un.org, (2004).





[73] In Larger
Freedom: Towards Development, Security and Human Rights for All, http://www.un.org,
(2005), at paragraph 124, under ‘Freedom From Fear’.





[74] UN Press
Release, SG/A/857, http://www.un.org





[75] Supra n. 10, at 604





[76] ibid, 604





[77] Supra n.15, at 69.





       On Thursday, 25 September 2014, 16:25, Burama Jammeh <[log in to unmask]> wrote:     Should America unilaterally bomb Syria (targets inside Syria) without UN mandate for some supposed nation security concerns? How's this different
 from America bombing Iraq although that was with UN mandate?What was your position then and now? How did you come to make such difference in stance - of course that's if your positions are different.BuramaOn Tuesday, September 23, 2014, Burama Jammeh <[log in to unmask]> wrote:just listened to Pentagon spokesperson interviewedWe strike because an attack on US was imminent - we believe!Have you stopped to the imminent attack? We're still assessing
 but.....I thought the whole thing was the outcome of Obama's 9/11 eve speech. But even his (Obama) this morning speech seem to suggest so ....... I told you this and that's what we are doing exactly......What is it America? Burama


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