Terrorism Prevention and the Right of Preemptive Self-Defense

Abstract

The concept of right of self-defense has long been recognized under international law. In general, its legitimacy and necessity have been rarely challenged and almost universally accepted by states. The actual application of the concept to a specific situation, however, almost always has led to fierce confrontation among interested parties regarding whether the international situation at issue indeed warrants exercise of the right of self-defense. This is mainly caused by a fact-specific and case-specific nature of the concept. Therefore, when a “prospective element” is added to this already laden and fiercely debated concept, and thus when the debate is about whether an uncertain future event may authorize the exercise of the right of self-defense, the issue inevitably invites further complication. Apparently, this seems to be what is going on with respect to the concept of so-called “preemptive self-defense.” The preemptive self-defense (or anticipatory self-defense) is generally understood to be an expansion of the traditional right of self-defense. It appears that the issue of preemptive self-defense first appeared in 1967, when Israel initiated military operation against Egypt based on intelligence that its Arab neighbors were allegedly planning to attack Israeli military positions. Israel again resorted to preemptive self-defense in 1981 by raiding and destroying a nuclear power facility in Iraq, also based on the information that Iraq was allegedly engaged in the development of nuclear weapon that could be used against it. Given the fact that the 1981 raid was not triggered by the information of imminent attack as shown in 1967, the aerial raid 2 JEAIL 2008 Terrorism and the Preemptive Self-Defense 291