IS SENSUALITY REALLY A SIN?

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I am certain that most of you are religious, spiritual women trying to "fit in" to the modern

World... 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!

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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

 

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              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.

Burama

On Tuesday, September 23, 2014, Burama Jammeh <[log in to unmask]> wrote:

just listened to Pentagon spokesperson interviewed

We 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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