THE USE OF FORCE IN INTERNATIONAL LAW: ANTICIPATORY/PREEMPTIVE ATTACKS, THE STATE OF ISRAEL IN FOCUS

This study examines the Use of Force in Public International Law, the prohibition of the use of force as provided for in Article 2(4) of the United Nations Charter and the exceptions to the use of force as provided for in Article 51 of the Charter. It also examines the non-state actors— Hezbollah’s and Houthi’s attacks against the State of Israel, the unwillingness of the Governments of Lebanon, Syria and Yemen to address those attacks, and the State of Israel’s right to self-defense which includes preemptive strikes and preventive strategies with focus on the State of Israel’s legitimate rights to resort to the use of armed force guaranteed by the principle of jus ad bellum. The significance of the Caroline Test in Customary International Law, the Bethlehem Principles, and state practice as justifications for the State of Israel’s anticipatory/preemptive attacks against Lebanon, Yemen and the Islamic Republic of Iran. By carefully examining the fundamental principles provided for in the United Nations Charter and customary international law, this study aims to explore the key requirements that must be satisfied before a given state can legally resort to anticipatory/preemptive self-defense. The concept of anticipatory/preemptive self-defense under Public International Law has always been contentious and controversial, however, in the aftermath of the terrorists’ attacks of September 11, 2001, the principle has become even more controversial, as the US President, Bush adopted a new national security strategy. Consequently, the Bush administration contended that the United States “must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries… the greater the threat, the greater is the risk of inaction—and 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.” 1The debate as to whether anticipatory/preemptive self-defense is legally justified is largely dependent on the understanding of the contemporary dynamics of Public International Law, as there has been a clear shift from what was obtainable at the Charter was adopted. There is absolutely no doubt that the resort to anticipatory/preemptive military action without a corresponding imminent threat is unlawful and unjustified, however, if the extant legal framework as provided for by the United Nations Charter does no longer precisely reflect the current Public International Law, then it would be argued that resort to anticipatory/preemptive self-defense may, in fact be lawful, though politically unwise.2The focus of this study is to evaluate through doctrinal legal research, analysis of critical international jurisprudence, state practice, and the analysis of case study the extent to which the State of Israel’s anticipatory/preemptive self-defense complies with the well-established rules of Public International Law as it pertains to international peace and security which are fundamental to the objectives of the United Nations Charter. Further, it critically examines the doctrine of anticipatory/preemptive use of force against the backdrops of contemporary threats of the acquisition of nuclear weapons, terrorism, proxy warfare, drone and missile attacks.