Anticipating self-defence is not a pre-emptive strike

There has been an extraordinary misinterpretation and overreaction to the Prime Minister’s answer to a journalist’s legitimate question last Sunday.

The Prime Minister said that in certain, very limited circumstances he would be prepared to launch military action in another country to forestall an attack on Australia.

This has been widely and wrongly interpreted as some sort of ambit claim to a right to make pre-emptive attacks on other states. This is not so.

The Prime Minister’s answer – not a statement as some described it – was hedged in with restrictions entirely consistent with international law.

Now international lawyers are divided on the issue of pre-emptive strikes but states have regularly claimed such a right.

The Netherlands declared war in 1941 before Japan had actually invaded the then Dutch East Indies. Israel justified her attack on Egypt in June 1967 because Egypt denied Israel’s right to exist, and threatened her with annihilation. Moreover, Egypt had closed the Straits of Tiran and demanded the withdrawal of the UN force supervising the ceasefire line. Israel felt she was entitled to pre-empt a likely attack. A more questionable use of the doctrine – at least according to a unanimous Security Council – was when Israel destroyed an Iraqi nuclear reactor then under construction in 1981. With the benefit of hindsight, some governments probably now approve of Israel’s action. Then in 1985, Israel bombed PLO headquarters in Tunisia, arguing that terrorists were harboured there with Tunisian complicity.

On one view the UN Charter provisions about the use of force may well have lost any legal force. This is because they have been so long and so often ignored they have slipped into desuetude. While this is a minority view, it is fair to say that international law does allow glosses on the text of even the UN Charter.

These can result from widespread patterns of behaviour by states, provided they believe their actions are in accordance with international law. For example, it may well be that the use of force in a genuinely humanitarian intervention is now lawful even without UN involvement.

The difficulty is that international law has no single identifiable legislature. The UN General Assembly is no parliament. Nor is there any institution similar to our High Court which can give authoritative and binding interpretations of the law.

But assuming the Charter still accurately states the law on the use of force, the text itself allows exemptions on the general restriction of that use.

One allows the Security Council to use force to keep the peace. In addition, states retain an "inherent" right to individual or collective self-defence. This preserves the rule that a state does not have to wait until the bombs fall. It may anticipate that right, which is different from a pre-emptive strike. The rules were spelt out as long ago as 1837 in a dispute between Great Britain and the United States involving a vessel, The Caroline. This right is available if it can be shown that the "necessity for self-defence is instant, overwhelming and leaving no choice of means and no moment of deliberation."

An example would have been if in 1941 the US had bombed the Japanese fleet on its way to Pearl Harbour because it had convincing intelligence of Japan’s intentions.