Anticipatory (Pre-emptive) Self-defence: The Need for a Modern Approach

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Anticipatory (Pre-emptive) Self-defence: The Need for a Modern Approach

The use of military force is a valid customary international law norm and it is enshrined in the United Nations Charter. Nevertheless, the use of force is only authorised if it falls under one of two categories: self-defence (article 41 of the United Nations Charter), or Security Council authorisation. To justify a resort to pre-emptive war, a state must give reasonable proof that the action is necessary to the vital national security interests of the state, and that the act of aggression in self-defence is proportional, according to Charter principles. The threat imposed by an aggressor must be proven to be clear and imminent, direct, critical to the state
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The term “War on Terrorism” itself refers to the policy made by President Bush immediately following the September 11 terrorist attacks, declaring that the U.S. would "make no distinction between the terrorists who committed these acts and those who harbour them".[1] The immediate application of this policy was the invasion of Afghanistan in early October 2001, when the Taliban controlled government of Afghanistan refused to hand over the well-known al-Qaida terrorist leader Osama bin Laden. This new United States policy inferred that any nation refusing to cooperate with American efforts to attack terrorists would be considered an enemy state. On September 20, in a televised address, Bush summed up this policy with the words, "Every nation, in every region, now has a decision to make. Either you are with us, or you are with the terrorists."[2] This doctrine is argued to be contrary to the classical concept of a just war which requires, among other stipulations, that war must only be conducted in self-defence. Supporters of the doctrine counter that the state-sponsorship of terrorism is in itself a first act of war, and that the US is acting justly when it answers with military actions.

The question is whether or not the existence of weapons of mass destruction (WMD) at the hands of terrorists and non-state actors changes the act

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