Chinese Journal of International Law 2006 Gray 555 78

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The Bush Doctrine Revisited:The 2006 National SecurityStrategy of the USA

Christine Gray

Abstract

In its 2006National Security Strategy, the USA reaffirms the controversial doctrine of

pre-emptive self-defence as crucial in the war on terror proclaimed after the attacks

of 9/11. But it does not provide a detailed examination of pre-emption. The

questions left open in the 2002 US National Security Strategy as to what will

trigger pre-emptive action, when action against non-State actors will be permissible

and what degree of force will be proportionate in pre-emptive action are still unre-

solved. The promise that The reasons for our actions will be clear, the force

measured and the cause just does not offer much in the way of specific guidance.It is very striking that in this context, the US strategy makes no reference to inter-

national law or to the role of the UN Security Council. The other main focus of

the strategy is on the promotion of democracy, but it does not go so far as to

assert any legal right to use force for this purpose, and it makes only passing reference

to humanitarian intervention. The EU 2003Security Strategyprovides a marked con-

trast in that it does not adopt the doctrine of pre-emptive self-defence, does not

expressly identify rogue States and does profess respect for international law and

for the role of the UN. Other States have not generally shown themselves willing

to accept a Bush doctrine of pre-emptive self-defence. They agree that there are

new threats facing the world from international terrorists and the danger of prolifer-

ation of weapons of mass destruction, but the 2005 World Summit showed clearly

that there is no general acceptance of pre-emptive action. Moreover, the International

Court of Justice still follows a cautious approach to self-defence. The 2006 National

Security Strategy largely reaffirms the doctrines of the earlier 2002 Strategy, but

whereas the focus in the 2002 Strategy was on the threat posed by Iraq and North

Korea; attention has now shifted to Iran and Syria, accused of being State sponsors

of terror by Hizbollah and Al-Qaida. The article ends with a discussion of the recent

conflict in Lebanon: this raised the crucial question whether the war on terror gave

Israel a wide right to use force, even a pre-emptive right. The conflict highlights

dramatically the practical significance of the divisions on the scope of the law of

self-defence with regard to action against non-State actors, pre-emption and

proportionality.

....................................................................................................................................................................Chinese Journal of International Law(2006), Vol. 5, No. 3, 555 578 doi:10.1093/chinesejil/jml043

Professor of International Law, University of Cambridge.

#The Author 2006. Published by Oxford University Press. All rights reserved.Advance Access publication 12 October 2006

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I. The war on terror

In his letter introducing the 2006 National Security Strategy of the USA, President Bush

begins portentously (and controversially): America is at war. This is a wartime national

security strategy required by the grave challenge we facethe rise of terrorism fueled by

an aggressive ideology of hatred and murder, fully revealed to the American people on

September 11, 2001. This strategy reflects our most solemn obligation: to protect the secur-

ity of the American people.1 President Bush is clearly writing not of any traditional inter-

State war, but rather of what he has called the ongoing war on terror, or, as the Pentagon

has more recently called it, the long war. The assertion that there is an ongoing war leads

the President to repeat the controversial legal claims on the use of force made earlier in the

2002National Security Strategy, and in particular to a reaffirmation of the Bush doctrine of

pre-emptive self-defence. This article will consider whether the 2006 National Security Strat-egyadds anything to its predecessor as regards the use of force. Does it develop the Bush doc-

trine of pre-emptive self-defence? How does the USA apply the law of self-defence to attacks

by and against non-State actors in the war on terror? How does the 2006 Strategy compare

with the 2003European Security Strategy, and what has been the impact of the two Strategies

on international law on the use of force?

In May 2003, the USA had announced that major combat operations in Afghanistan and

Iraq were over, but that the war on terror continued. US Defence Secretary Rumsfeld

proclaimed that major combat operations in Afghanistan were over, following the overthrow

of the Taliban regime which had supported Al-Qaida terrorists;Operation Enduring Freedom

had been initiated in October 2001 in response to the terrorist attacks of 9/11.2 President

Bush proclaimed that major combat operations in Iraq were over after the toppling of

Saddam Hussein.3 With regard to Iraq, President Bush asserted that The battle of Iraq is

one victory in a war on terror that began on September 11, 2001 and still goes on. . .The

liberation of Iraq is a crucial advance in the campaign against terror. Weve removed an

ally of Al-Qaida and cut off a source of terrorist funding. This is a renewal of his earlier

controversial attempts to establish a link between the regime of Saddam Hussein and

Al-Qaida terrorists. In the lead up to Operation Iraqi Freedom, the Bush administrationclaimed that these links existed, in an attempt to justify the use of force against Iraq as

part of the war on terror. But no evidence for the existence of such a link was produced

before the invasion of Iraq in 2003,4 and for many critics, Operation Iraqi Freedom was

a diversion from the war on terror.5 In retrospect, both the May 2003 proclamations

1 2002 (41) ILM 1478.

2 Keesings Record of World Events (hereafter Keesings) (2003), 45403.

3 Keesings (2003), 45434.

4 Gray, International Law and the Use of Force (2nd edn. 2004), 180; Keesings (2004), 46245.5 Just as there were fundamental divisions as to the legality of Operation Iraqi Freedom, so there are now divisions

as to whether the invasion has proved counter-productive in the war on terror. There is disagreement as to whether

the invasion has increased the risk of terrorist attacks in Iraq and elsewhere. The new government of Iraq chal-

lenges those who say that terrorism had been unleashed because of the occupation of Iraq and that it would

have been better not to take military action to remove Saddam Hussein: That was nonsense, the kind of inverted

556 Chinese JIL(2006)



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seem distinctly premature: serious fighting continues in both States. The USA maintains that

there is an ongoing war on terror in Afghanistan and Iraq: they are now front lines in the war

on terror, and winning the war on terror requires winning the battles in Afghanistan and

Iraq.6

The Security Council, although not committing itself to this US characterization of the

ongoing conflicts in Afghanistan and Iraq, has condemned some of the violent acts in

these States as terrorism and accepted that they should not be classified simply as resistance

to foreign occupation or as civil war or sectarian conflict. With regard to Afghanistan,

somewhat paradoxically given that Operation Enduring Freedom was undertaken in

response to a terrorist attack and in order to deter future attacks, the Security Councils refer-

ences to the threat from terrorism were at first rather limited. However, such references have

strengthened recently. In early resolutions, there were simple reaffirmations of Resolutions

1368 and 1373 passed after the terrorist attacks of 9/11 and also general references to the

Security Councils support for the international effort to root out terrorism.7

In 2005, the resolutions began to refer expressly to the ongoing challenges in Afghanistan

itself as including terrorist threats. The Security Council called on the government of

Afghanistan, with the assistance of the international community including Operation Endur-

ing Freedom and NATOs International Security Assistance Force (ISAF), to continue to

address the threat to the security and stability of Afghanistan posed by Al-Qaida operatives,

the Taliban and other extremist groups.8 Resolution 1662 (2006), passed unanimously,

recognized the continuing importance of combating increased terrorist attacks caused bythe Taliban, Al-Qaida and other extremist groups. These resolutions appear to give legiti-

macy to the long-lasting US-led Operation Enduring Freedom in Afghanistan; this

counter-terrorist operation began in 2001 and its legal justification apparently remains the

samethat it is using force in self-defence against Al-Qaida and its supporters in the

remnants of the Taliban. However, given the absence of any public debate on the resolutions,

it is not entirely clear whether the Security Council actually accepts that there is an ongoing

right of self-defence in a global war on terror or whether its members accept the legality of

Operation Enduring Freedom because of the consent of the Afghan government to its pre-

sence and operations.9 Nor did the day-long debate on Afghanistan on 23 August 2005

logic that appealed to the feeble-minded. It was the logic that blamed the doctor for the disease and the victim for

the assault. (UN Press Release SC/8471, 4 August 2005.) The USA and the UK also follow this line, correctlystressing that terrorist attacks pre-dated the invasion of Iraq. However, they tend not directly to address the argu-

ment that the invasion of Iraq has increased the likelihood of terrorist attack. See for example, President Bush

speech, National Endowment for Democracy, 6 October 2005 (www.whitehouse.gov/news/releases/2005/10/20051006-3.html); Blair Speech to the World Affairs Council in Los Angeles, 1 August 2006, (www.

number10.gov.uk/output/Page 9948).

6 2006 National Security Strategy, 12.7 Resolutions 1386 (2001), 1510 (2003), 1563 (2004).

8 Resolution 1589 (2005) (passed unanimously). See also S/PRST/2005/40.

9 The classification has significance for the application of the laws of armed conflict: is this an internal armed

conflict between Afghanistan with outside assistance or an international conflict against terrorism, to be seen

as a new type of conflict with new rules on prisoners of war.

Gray, The 2006 National Security Strategy of the USA 557



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throw any light on this issue.10 Operation Enduring Freedom continues alongside ISAF, but

unlike ISAF, it was not directly authorized by the Security Council.11

With regard to Iraq, the Security Council has only recently started to make references to

terrorism in its resolutions. First, in Resolution 1546 (2005), it set out new tasks for the multi-national force established under Resolution 1511 (2003), including maintaining security and

stability by preventing and deterring terrorism. It also condemned all acts of terrorism in Iraq

and reaffirmed the obligations of States set out in Resolution 1511 to prevent the transit of

terrorists to and from Iraq, the supply of arms for terrorists and financing that would

support terrorists. In Resolution 1618 (2005), it unanimously reaffirmed in general terms

the need to combat by all means, in accordance with the UN Charter, threats to international

peace and security caused by terrorist acts. With specific reference to Iraq, the Security Council

condemned without reservation and in the strongest terms the terrorist attacks that have

taken place in Iraq, and regards any act of terrorism as a threat to international peace and secur-

ity and affirmed that acts of terrorism must not be allowed to disrupt Iraqs political and

economic transition. Despite this willingness to condemn acts of terrorism, especially those

against foreign diplomats, the debates do not show any general acceptance of the US position

that the conflict in Iraq is best understood as part of an ongoing war on terror.12 US represen-

tative John Bolton in his first Security Council meeting expressed the position that Iraq faces

the same transnational terrorist threat that has struck many other parts of theworld. But Russia

pointed out, The situation in Iraq cannot be boiled down simply to the need to fight inter-

national terrorism. The crimes committed by terrorists are only part of the problem to beovercome by the Iraqi people. The achievement of national reconciliation is the most import-

ant key to the elimination of the terrorist threats facing that State.13

II. The promotion of freedom

As we have seen, a major focus of President Bushs letter introducing the 2006 National

Security Strategywas the war on terror. However, in his introductory letter, President Bush

also went on to stress the promotion of freedom: America also has an unprecedented

opportunity to lay the foundations for future peace. The ideals that have inspired ourhistoryfreedom, democracy, and human dignityare increasingly inspiring individuals

and nations throughout the world. And because free nations tend toward peace, the

advance of liberty will make America more secure. President Bush celebrated the bringing

of democracy to Iraq and Afghanistan.14 This stress on the promotion of freedom pervades

10 UN Document S/PV 5249; UN Press Release SC/8478, 23 August 2005.

11 ISAF was set up under Resolution 1511 (2003).

12 See, for example, UN Document S/PV 5246; UN Press Release SC 8471, 4 August 2005; S/PV 5300,8 November 2005.

13 UN Document S/PV 5246, 4 August 2005. The classification of the conflict in Iraq has proved a sensitive

issue and the US government has resisted suggestions that there is now a sectarian civil war: Keesings (2006),

47178, 47231.

14 See also 2006 National Security Strategy, 2.




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the 2006 National Security Strategy. The new National Security Strategyis nearly 20 pages

longer than its predecessor, partly because it contains far more extensive discussion of the

promotion of democracy in the expanded section on Goal II, Champion Aspirations for

Human Dignity.There is, of course, some tension between the two aims. In its war on terror, the USA has

welcomed cooperation from distinctly undemocratic regimes; the USA may be understood

implicitly to have acknowledged this in the 2006 National Security Strategy when it said

that The form that freedom and democracy take in any land will reflect the history,

culture, and habits unique to its people. The tactics of the USA in its support of the advo-

cates of freedom will vary, reflecting where each government is on the path from freedom to

tyranny.15 Conversely, tension between the two aims has also arisen when democratic

elections produced results unacceptable to the USA, as in the case of the victory of

Hamas, categorized by the USA as a terrorist organization, in the elections held in the

Israeli-occupied Palestinian territories in January 2006.16

III. The 2006 National Security Strategyand pre-emptiveself-defence

III.A. Background: 2002National Security Strategy

The 2006National Security Strategylargely reaffirms the 2002National Security Strategyand

repeatedly refers back to its provisions on the use of force and other topics. Almost everysection of the 2006 Strategy begins with a summary of the equivalent section of the 2002

Strategy. The 2002 National Security Strategy was a dramatic document which provoked

much discussion. It was intended to address the need to transform the defence of the

nation in response to the end of the Cold War and the emergence of new threats from ter-

rorist attacks following 9/11. Its most important feature as regards international law on the

use of force was its support for a doctrine of pre-emptive self-defence: The USA has long

maintained the option of pre-emptive actions to counter a sufficient threat to our national

security . . . To forestall or prevent . . . hostile acts by our adversaries, the United States

will, if necessary, act pre-emptively. In this context, it suggested a fundamental change in

the law on the use of force, in particular on the scope of self-defence. It called for a re-exam-

ination of the requirement of imminence in the law of self-defence. It said international law

recognized that the use of force against imminent attack was permissible, and went on We

must adapt the concept of imminent threat to the capabilities and objectives of todays adver-

saries.17 Thus, the 2002 Strategy did refer expressly, but very brieflyand controversially

to international law, in claiming that, for centuries, international law had recognized that

nations need not suffer an attack before they could lawfully take action to defend themselves.

15 Ibid, 56.

16 The 2006 National Security Strategy, 5. On Hizbullah, similarly classified by the USA as a terrorist organization

but elected to seats in Lebanons parliament and holding two seats in the cabinet, see below n. 99.

17 2002 National Security Strategy, 15.




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This 2002 proclamation of a Bush doctrine proved very controversial. The 2002National

Security Strategys discussion of the use of force was extremely brief and left considerable

uncertainty as to what would trigger the right of pre-emptive self-defence and as to who

could invoke such a right. No limits were set on the right in the Security Strategy and itsscope was left unclear. That is, the applicability of the traditional doctrines of necessity

and proportionality in the case of pre-emptive self-defence remained obscure. Moreover,

there was some uncertainty as to whether pre-emptive self-defence was put forward in the

2002 National Security Strategy as an existing legal right or merely as a proposal as to

what the law should be. In an earlier article on the 2002 National Security Strategy in this

journal, I concluded by saying that there was some doubt as to whether the support for

pre-emptive self-defence was a rhetorical device to put pressure on Iraq or a serious

attempt to rewrite international law on the use of force. Much would depend on the reaction

of the rest of the world.18 The first test of the doctrine of pre-emptive self-defence arose with

regard to Iraq.

III.B. Operation Iraqi Freedom 2003

The 2002US National Security Strategywas produced after the terrorist attacks of 9/11 and

after the USA had undertaken Operation Enduring Freedom in Afghanistan in response to

those attacks. However, it was obviously written with special regard to Iraq when it described

the threat posed by rogue regimes which might acquire weapons of mass destruction (WMD)

and supply them to global terrorists hostile to the USA and its friends. Nevertheless, whenthe USA embarked on Operation Iraqi Freedom in 2003, it deliberately chose not to use

pre-emptive self-defence as its main justification for the use of force. All three States actually

involved in the initial military operationthe USA, the UK and Australiarelied on a claim

of Security Council authorization given by a combination of resolutions. In so far as the

action was pre-emptive, this was claimed to have been authorized by the UN rather than

to amount to pre-emptive self-defence.19 Indeed, among those three States, only the USA

specifically mentioned self-defence in its justification for its use of force, and then only

very briefly and with only a vague indication of pre-emption. At the end of its letter sent

to the Security Council at the start of operations, it said, The actions that coalition

forces are undertaking are an appropriate response. They are necessary steps to defend the

United States and the international community from the threat posed by Iraq and to

restore international peace and security in the area.20 In their own letters to the Security

Council, the UK and Australia did not make any reference to self-defence, let alone to

pre-emptive self-defence.21 Thus, there was a clear reluctance to use the doctrine of

pre-emption. This may be taken as a sign of the controversial nature of the doctrine.

18 Gray, The US National Security Strategy and the new Bush Doctrine on Pre-emptive Self-defence, Chinese JIL

(2002), 437.

19 Taft and Buchwald, Preemption, Iraq and International Law, 553 AJIL (2003), 97

20 UN Document S/2003/351, 21 March 2003.

21 UN Documents S/2003/350, S/2003/352, 20 March 2003.




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Moreover, it is widely acknowledged that Operation Iraqi Freedom demonstrates the

danger of pre-emptive action. The action was taken on the basis of intelligence that the

government of Iraq was developing WMD in violation of the ceasefire regime binding on

it under Security Council Resolution 687; it turned out that there were no WMD. TheIraq Survey Group set up by the coalition forces after the invasion provided final confir-

mation of this in October 2004: after some 1500 inspectors had spent 16 months and

US$6000 million scouring the cities and deserts of Iraq, they had found no WMD or

any programmes to manufacture them. The Iraq Survey Group did, however, assert that

Saddam Hussein had intended to develop such weapons.22 The debate continues as to

whether it was faulty intelligence or misuse of intelligence involving the politicization of

the intelligence services by governments, or both, that led to the assertion the Saddam

Hussein was developing WMD and to the decision to use force. President Bush acknowl-

edged in the 2006 National Security Strategy, Our intelligence must improve. However,

he said there would always be some uncertainty about the status of hidden programmes,

since proliferators are often brutal regimes that go to great lengths to conceal their activities.

And Saddams strategy of bluff, denial and deception is a dangerous game that dictators play

at their peril. It was Saddams reckless behaviour that demanded the worlds attention, and it

was his refusal to remove the ambiguity he created that forced the United States and its allies

to act. We have no doubt that the world is a better place for the removal of this dangerous

and unpredictable tyrant, and we have no doubt that the world is better off if tyrants know

that they pursue WMD at their own peril.23

III.C. Pre-emptive self-defence in the 2006 National Security Strategy

In his letter introducing the 2006 Strategy, President Bush says, We fight our enemies

abroad instead of waiting for them to arrive in our country, and the 2006National Security

Strategymakes a continuing strong commitment to pre-emptive action. It asserts that The

place of preemption in our national security strategy remains the same.24 This approach

may be seen also in the policy of active defense set out in the Department of Defense

National Defense Strategyof March 200525 and in the emphasis on the need for actions in

self-defence to pre-empt adversaries before they can attack in the 2004 National Military

Strategy of the USA.26

But the discussion of the use of force in the 2006 Strategy is no more detailed than it had

been in 2002. Many questions are still left unanswered. What is new and very striking is the

absence of any express reference to international law. As before, it is Goals III and V which

deal with the use of force. Goal III remains the same as it had been in 2002: to strengthen

alliances to defeat global terrorism and work to prevent attacks against us and our friends.

22 Keesings (2004), 46282.

23 US National Security Strategy 2006, 2324.

24 Ibid, 23.

25 Department of Defence website www.defenselink.mil/.

26 Ibid.




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The 2006 Strategy repeats the 2002 position that in fighting terrorism, the USA can no

longer rely on deterrence; the fight must be taken to the enemy. However, the 2006 National

Security Strategyno longer refers merely to the threat posed by shadowy networks of indi-

viduals as President Bushs introduction to the 2002 version had done; it now attempts toidentify much more precisely the nature of the terrorist threat. The main danger is said to

come from Islamic extremists, although the Strategy nevertheless maintains that the

war on terror is a battle of ideas, it is not a battle of religions.27 It discusses the causes of

terrorism at some length and contests the view that the invasion and occupation of Iraq

led to an increase in terrorism.

Elsewhere President Bush has been even more outspoken in blaming Islamic radicalism

for global terrorism, and he has attributed a clear three-step political agenda to Islamic

extremists or Islamo-fascists. First, they want to end American influence in the Middle

East because the USA stands for democracy and peace; second, they want to use the

vacuum created by an American retreat to gain control of a country, a base from which to

launch attacks and conduct their war against non-radical Muslim governments; and third,

they believe that controlling one country will rally the Muslim masses, enabling them to

overthrow all moderate governments in the region and establish a radical Islamic

empire that spans from Spain to Indonesia.28 Prime Minister Blair has recently adopted a

similar approach, identifying an arc of extremism stretching across the Middle East and

touching countries far outside that region. He argues that This is war, but of a completely

unconventional kind between the arc of extremism and the alliance of moderation.He claims that the terrorist attacks in the USA, the UK, Spain, Indonesia, Algeria,

Afghanistan and Iraq, the continuing conflict in Lebanon and Palestine is all part of the

same thing.29

Goal V, to prevent our enemies from threatening us, our allies and our friends with

WMD, repeats the 2002 principle that the duty to protect the American people obligates

the government to anticipate and counter threats, using all elements of national power,

before the threats can do grave damage. The summary of the 2002 strategy says: The

greater the threat, the greater is the risk of inactionand the more compelling the case

for taking anticipatory action to defend ourselves, even if uncertainty remains as to the

time and place of the enemys attack. There are few greater threats than a terrorist attack

27 2006 US National Security Strategy, 9.

28 President Bush speech, National Endowment for Democracy, 6 October 2005 www.whitehouse.gov/news/releases/2005/10/20051006-3.html.Australia also argues that 21st century terrorism differs from the terrorism of the 1970s and 80s. It is more

strategically focused. Its objective is to roll back Western values, engagement and influence, and to weaken

and ultimately supplant moderate Islamic governments. (Australias National Security Strategy: A Defence

Update 2003, 11).

29 Speech to the World Affairs Council in Los Angeles, 1 August 2006, www.number10.gov.uk/output/Page 9948.See also the series of three speeches on foreign policy given on 21 March, 26 March, 26 May 2006, ibid, 9224,

9245, 9549.

The Prime Minister links the struggle against terrorism in Algeria, Chechnya, Kashmir, Madrid, London and

Paris as the same as the struggle against the terrorist acts of Hizbullah in Lebanon or the PIL in Palestine or the

rejectionist groups in Iraq.




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with WMD.30 This language is exactly the same as in 2002. But then comes a slight shift:

To forestall or prevent such hostile acts by our adversaries, the United States will, if necess-

ary, act pre-emptivelyin exercising our inherent right of self-defense. (My italics) The words in

italics are new and were not present in the 2002 version. They make it clear that the basis forpre-emption is self-defence. This may be taken as an implicit reference to Article 51 of the

UN Charter and to the controversial doctrine of the preservation of an inherent right of

self-defence going beyond the right to act in self-defence against an armed attack.31

But the Strategy does not consider the compatibility of US policy with international law.

The claim of a right to take pre-emptive action in self-defence is not expressed in terms of a

call for a change in the law, nor is it expressly based on the existing law. There is no explicit

reference to international law in the 2006 Strategy. In 2002, the National Security Strategy

had famously said that international law recognized that the use of force against imminent

attack was permissible and had gone on We must adapt the concept of imminent threat

to the capabilities and objectives of todays adversaries. Now there is nothing at all on inter-

national law in the sections on the right of pre-emptive action, an apparent reflection of the

hostility, indifference or contempt for international law felt by many neo-conservatives influ-

ential in the Bush administration.

The 2006 National Security Strategy repeats the words of the 2002 Strategy: If necessary,

however, under long-standing principles of self-defense we do not rule out the use of force

before attacks occur, even if uncertainty remains as to the time and place of the enemys

attack and then adds The reasons for our actions will be clear, the force measured, andthe cause just.32 These new words do not give any specific guidance on the use of force.

This section is no more informative on the limits of pre-emptive action than it had been

in 2002; it is still not clear what will trigger pre-emptive force and what is the proper

scope of such action.

Not only is there no mention of international law on the law of force, but also there is

almost no reference to the UN in the 2006 Strategy. As in the 2002 Strategy, there is no

recognition of the primary role of the Security Council in the maintenance of international

peace and security.33 Goal VIII reaffirms the 2002 aim to develop agendas for cooperative

action with the other main centers of global power, but there is no emphasis on the UN

or other traditional alliances here. There is less, and generally less favourable, reference to

NATO than there had been in 2002; there is, moreover, a strong call for it to accelerate

its internal reform, as demanded in 2002.34 The main focus is on ad hoccoalitions such

as the Proliferation Security Initiative.


31 Gray, International Law and the Use of Force (2nd edn. 2004), 98.

32 2006 US National Security Strategy, 23.33 The Strategy mentions the UNs Democracy fund and the need to work with the UN and regional organizations

to help implement their democratic commitments. In Goal 5, it highlights the role of the USA in securing passage

of SC Resolution 1540, but there is nothing else on the UN in this section. At end, the Strategy stresses the need

to promote reform of the UN.





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III.D. Rogue States2002 and 2006

In 2002, the Strategy identified the most serious challenges to US national security as

emanating from the dual threat of rogue States developing WMD and of terrorists who

might acquire such weapons. It singled out Iraq and North Korea, and said We must beprepared to stop rogue States and their terrorist clients before they are able to threaten or

use weapons of mass destruction against the United States and our allies and friends.35

In the 2006 Strategy, the focus shifts to Iran and Syria as State sponsors of terror: Some

states such as Syria and Iran continue to harbor terrorists at home and sponsor terrorist

activity abroad.36 In the context of proliferation of WMD, the Strategy singles out Iran

again: We may face no greater challenge from a single country than from Iran.37 This

is not only because of its attempts to develop nuclear weapons, but also because of

broader concerns. The Iranian regime sponsors terrorism; threatens Israel; seeks to thwartMiddle East peace; disrupts democracy in Iraq; and denies the aspirations of its people for

freedom.38

In several important aspectsthe support for pre-emptive self-defence, the lack of respect

for international law, the failure to acknowledge a role for the UN and the express identifi-

cation of rogue Statesthere is a marked contrast between the 2006 US National Security

Strategyand the 2003 EU Security Strategy.

IV. EU Security Strategy2003: a secure Europe in a better worldThe EU issued its first joint security strategy in December 2003.39 This 14-page document

was designed to be a counterpart to the US National Security Strategy, and there are many

similarities between the two documents. Under the headingKey Threats, it says Large-scale

aggression against any member state is now improbable. Instead, Europe faces new threats

which are more diverse, less visible and less predictable.40 The European Strategy identifies

five threats: terrorism, the proliferation of WMD, regional conflicts, state failure and

organized crime. In its discussion of Strategic Objectives, the Strategy says: Our

traditional concept of self-defenceup to and including the Cold Warwas based on

the threat of invasion. With the new threats, the first line of defence will often be abroad.

The new threats are dynamic. The risks of proliferation grow over time; left alone, terrorist

networks will become ever more dangerous. State failure and organized crime spread if they

are neglectedas we have seen in West Africa. This implies that we should be ready to act

before a crisis occurs. Conflict prevention and threat prevention cannot start too early.41




38 Ibid.

39 ue.eu.int/uedocs/cmsUpload/78367.pdf.

40 Ibid, 3.

41 Ibid, 6.




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But the EU still is not prepared to adopt the doctrine of pre-emptive self-defence. It did

accept that the law may need to be adapted to meet new needs; the Strategy includes the

general statement: It is a condition of a rule-based international order that law evolves in

response to developments such as proliferation, terrorism and global warming.42

Butthere is nothing more express. This is a clear indication that the doctrine of pre-emption

is not generally accepted international law. Whereas the USA singled out Syria and Iran,

the EU did not identify them by name, saying only that A number of states have placed

themselves outside the bounds of international society.43

In marked contrast to the US 2006 National Security Strategy, the European instrument

emphasizes international law and the role of the UN. It includes a section on World

Order based on Effective Multilateralism: We are committed to upholding and developing

International Law. The fundamental framework for international relations is the UN

Charter. The UN Security Council has the primary responsibility for the maintenance of

international peace and security.44 Even if this is mere lip-service, it still represents a

quite different approach from that of the USA.

V. The re-examination of the law on the use of force

The events of 9/11, the 2002 National Security Strategyand Operation Iraqi Freedom all

prompted a fundamental debate about the law on the use of force. States and writers

addressed the questions whether there is now a war on terror which requires the law to be

changed to allow for pre-emption against rogue States and terrorists and for a wide right

of self-defence against non-State actors, and whether the war on terror has an impact on

the doctrine of humanitarian intervention in that forcible intervention in States without

effective government may now be necessary to stop the continuation of conditions in

which terrorists operate. Several States accepted that a reappraisal of the law was needed.

Some have taken up the call in the 2002 USNational Security Strategyfor a re-examination

of the imminence requirement in self-defence.

The UN Secretary-General also accepted that there is a new threat facing the world, that ofinternational terrorism and the danger of proliferation of WMD. The serious divisions

between Statesapparent over Operation Iraqi Freedomas to how to address these new

threats led him to set up a High Level Panel to examine todays global threats, to identify

the contribution to be made by collective action, and to recommend any necessary changes

in the UN system.45 The High Level Panel issued its report in December 2004.46 The

Secretary-General then issued his own report, In Larger Freedom, in March 2005.47 Both

42 Ibid, 10.

43 Ibid, 10.

44 Ibid, 9.

45 www.globalpolicy.org/secgen/annan/2003/0923gaaddress.htm.

46 Report: A More Secure World: Our Shared Responsibility, UN Document A/59/565.

47 UN Document A/59/2005, 21 March 2005.




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reports addressed the issue of self-defence; they considered whether the right should be

expanded in the light of the new threats and whether the UN Charter should be

amended. Both reports took the controversial view that there is an existing right under

international law of anticipatory self-defence against imminent attack. The Panel did soon the basis that this was customary international law; the Secretary-General on the basis

that anticipatory self-defence was permissible under Article 51 of the UN Charter. The

UN Secretary-General uncritically accepted the High Level Panels view that anticipatory

self-defence was lawful, even though this was controversial and even though the

Non-Aligned Movement had made it clear that this was not acceptable to them.48

However, both reports firmly rejected any wider right of pre-emptive self-defence going

beyond anticipatory self-defence in the face of an imminent attack. They said that if there

were no imminent threat then it would be for the Security Council rather than individual

States to take pre-emptive action.

A UN World Summit was then held in September 2005 to consider the reform of the UN

in order to meet the challenges of the 21st century, and in particular, the challenge to the

collective security system arising out of the divisions over the invasion of Iraq. It had the

two reports before it, but the World SummitOutcome Documentdid not follow their pos-

ition on anticipatory self-defence. It said simply that the relevant provisions of the Charter

are sufficient to address the full range of threats to international peace and security. 49 The

World Summit showed clearly the continuing deep divisions between States on the law on

the use of force. A majority of States were not willing to accept anticipatory, let alonepre-emptive self-defence. There has been little progress in developing a new doctrine and

significant resistance to any major change. There is little sign of any widespread acceptance

of a new doctrine of pre-emption even by Western States. NATO does not include such a

doctrine in its security strategy. There have been some indications that Japan (as against

North Korea) and Russia (as against terrorism) support pre-emptive self-defence, but it is

still not clear that they go as far as the 2006 US National Security Strategy.50

Of those States which have proved themselves among the strongest military supporters of

USA, Australia has given some support for pre-emption. It issued Australias National

Security Strategy: A Defence Update 2003before the action against Iraq was initiated. This

referred in general terms to the need for military operations to prevent the proliferation of

WMD, including to rogue States or terrorists, where peaceful efforts have failed.51 But it

did not say anything more express on pre-emptive action. In the general election campaign

of 2004, Prime Minister Howard repeated his earlier support for pre-emptive military force

against terrorists: he said that this had not just been a one-off response after the terrorist

48 See NAM Comments on the High Level Panel Report, 28 February 2005, www.un.int/malaysia/NAM/NAM.html para. 2628; UN Document A/59/PV.85, 14 15.

49 UN Document A/60/L.70, 15 September 2005, para. 79.

50 Below n.58 and 59.

51 defence.gov.au/index.cfm, Australias National Security Strategy: A Defence Update 2003, 16.




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the technology that would enable pre-emptive strikes. According to newspaper reports, the

Japanese defence minister said that, if there were no other option, attacking the launch base

of a guided missile was within the constitutional right of self-defence, and there was a need

to deepen discussion of the scope of self-defence. South Korea responded in a hostilemanner, saying that Japans comments exposed Japans tendency to invade other nations.58

Russia has recently passed legislation which apparently allows the pre-emptive use of force

against suspected terrorist targets outside Russian borders.59 This confirms the position taken

by Russia in the General Debate of the General Assembly in September 2005, when it said,

Also of crucial importance was the issue of states exercising their right to individual and

collective self-defence in case of external terrorist attack or imminent threat of such attack.

The Russian Federation and some other states that had become targets of terrorist attacks

originating from beyond their borders had no right to fail in the eyes of their citizens, who

had entrusted their security to them.60 But this claim does not go beyond the right to

respond to imminent attacks, and it does not go beyond the context of terrorism.

In its decisions and opinions since September 2002, the International Court of Justice

(ICJ) has given no indication that it is prepared to accept a wide doctrine of pre-emptive

self-defence. Rather it has tended to avoid difficult questions on the use of force in the

Wall Advisory Opinion61 and in Armed Activities on the Territory of the Congo (DRC

v. Uganda);62 in those cases, it followed the restrictive approach to self-defence it had

taken earlier in the Nicaragua case63 and in Iranian Oil Platforms.64 There it had not

pronounced on anticipatory or pre-emptive action; the Court had explicitly stated that itexpressed no view on that issue. In the DRC v. Uganda case, as earlier in Nicaragua,

the parties had relied only on the right of self-defence in the case of an armed attack

which has already occurred, and the issue of the lawfulness of a response to an imminent

threat of armed attack has not been raised.65 However, in DRC v. Uganda, the Court

did note that Uganda had failed to produce evidence of armed attacks that had already

occurred against Uganda at the hands of the DRC or those for whom the DRC was

responsible. Rather, the Ugandan evidence was that its use of force was necessary to secure

Ugandas legitimate security interests. The specified security needs were essentially

preventativeto ensure that the political vacuum in the border area did not adversely

affect Uganda, to prevent attacks from genocidal elements, to be in a position to safeguard

58 Keesings (2003), 45239; Washington Post, 11 July 2006; New York Times, 12 July 2006.

59 The State Duma passed this on 22 February 2006; the Federal Council on 1 March, and the President signed it

on 7 March 2006 (Keesings (2006), 47119).

60 UN Document GA/10389, 18 September 2005.

61 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 ICJ Reports; 2004

(43) ILM 581.

62 DRC v. Uganda, 2005 ICJ Reports; 2006 (45) ILM 271.

63 1986 ICJ Reports 103. The Eritrea/Ethiopia Claims Commission also took a narrow view of self-defence in

Ethiopiasius ad bellumClaims 18, 2006 (45) ILM 430.

64 2003 ICJ Reports 161.

65 DRC v. Uganda, 2005 ICJ Reports, para. 143; Nicaragua case, 1986 ICJ Reports, 103, para. 194.




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Uganda from irresponsible threats of invasion, to deny the Sudan the opportunity to use the

territory of the DRC to destabilize Uganda.66 Thus the Court did indicate that it would not

accept purely pre-emptive action as self-defence. And later in the judgment, in the section on

the prohibition of the use of force, the Court said that Article 51 of the Charter may justifya use of force in self-defence only within the strict confines there laid down. It does not allow

the use of force by a State to protect perceived security interests beyond these parameters.

Other means are available to a concerned State, including, in particular, recourse to the

Security Council.67

All these developments show that it is not possible to argue that there is wide acceptance of

a Bush doctrine of pre-emptive self-defence.

VI. Humanitarian intervention and the 2006 NationalSecurity Strategy

As was mentioned earlier, a major focus of the 2006 US National Security Strategy is on

democracy and its power to transform. Does this stress on the promotion of freedom

lead the USA to call for pro-democratic invasion, regime change or humanitarian

intervention? The USA certainly does not expressly support the use of force to implement

democracy in the Strategy. It spells out at length the tools at the disposal of the USA to

end tyranny and promote effective democracy, but it does not include in this list any

right to use force for these ends. This is a further indication that the USA, despite itswillingness to call for regime change in States such as Afghanistan and Iraq, does not

wish openly to espouse any doctrine of pro-democratic invasion.68 The UK has not accepted

a legal doctrine of regime change. But recently, in his speech of 1 August 2006, intended to

initiate a renaissance of foreign policy, Prime Minister Blair adopted new language. He

now argues that ever since 9/11, the USA has embarked on a policy of intervention in

order to protect its and our future security. Hence Afghanistan. Hence Iraq. Hence the

broader Middle East initiative in support of moves towards democracy in the Arab world.

The point about these interventions, military and otherwise, is that they were not just

about changing regimes but changing the values systems governing the nations concerned.

The banner was not actually regime change, it was values change.69 However, it

seems that this new doctrine is not being put forward as a legal doctrine justifying the use

of force.

The 2005 UN World Summit had accepted a doctrine of a responsibility to protect in

its final Outcome Document; this doctrine proved more appealing to States than the earlier

doctrine of humanitarian intervention had been.70 Members of the UN had before them

66 DRC v. Uganda, 2005 ICJ Reports, para. 143.

67 Ibid, para. 148.

68 Gray, International Law and the Use of Force (2nd edn. 2004), 49.

69 Speech to the World Affairs Council in Los Angeles, 1 August 2006, (www.number10.gov.uk/output/Page 9948).

70 UN Document A/60/L.1, 15 September 2005, paras 138140.




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the reports of the High Level Panel71 and of the Secretary-General72 which both supported

the doctrine of a responsibility to protect in cases of genocide and other large-scale killing,

ethnic cleansing or serious violation of international humanitarian law. Supporters have

hailed this as a major achievement. However, some scepticism is called for. The OutcomeDocumentleft unclear the critical question whether forcible unilateral action in exercise of

the responsibility to protect might be lawful when it was not authorized by the Security

Council. Many States have expressed their opposition to such unilateral use of force.73

It is significant that the USA says very little on this issue in its 2006 National Security

Strategy. Even though it has accepted that States without effective government pose a

threat in the context of the war on terror, the USA in the 2006 National Security Strategy

does not openly espouse the doctrine of the responsibility to protect in cases of humani-

tarian crisis. There is a passing mention of this issue in Goal IVWork with Others to Defuse

Regional Conflicts. Under the headingGenocide, it says Where perpetrators of mass killing

defy all attempts at peaceful intervention, armed intervention may be required, preferably by the

forces of several nations working together under appropriate regional or international

auspices.74 It is not absolutely clear what the USA is saying here, but it could reasonably be

interpreted as implying support for a right of unilateral action, at least in cases of genocide.

The EU Security Strategy, produced before the World Summit, also does not include any

express mention of humanitarian intervention, despite the strong support for this doctrine by

the UK.

VII. The use of force against non-State actors and the2006 Strategy

The focus on the war on terror in the 2006 Strategy necessarily raises the issue of the current

state of the law on the use of force by and against non-State actors. The Strategy says that the

need for action on WMD requires new approaches: both offences and defences are necessary

to deter State and non-State actors, through denial of the objectives of their attacks and, if

necessary, responding with overwhelming force.75 This passing reference to the use of force

against non-State actors is not further elaborated on in the Strategy. There has been much

discussion as to whether international law after 9/11 allows self-defence against a States ter-

ritory if there has been an armed attack by non-State actors operating from that territory,

even in the absence of direct involvement by the State in that attack. In the 2006 Strategy,

the USA and its allies in the war on terror make no distinction between those who commit

acts of terror and those who support and harbour them, because they are equally guilty of

71 UN Document A/59/565, para. 199203.

72 UN Document A/59/2005, 21 March 2005, para. 122, 135.73 UN Document GA/10337, 10338, 10339, 6 8 April 2005; see also NAM Comments on the High Level Panel

Report, 28 February 2005, (www.un.int/malaysia/NAM/NAM.html), para. 2628; UN Document A/59/PV.85, 14 15.






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murder.76 If there is such a right to use force, then does this arise only in relation to attacks

by terrorists, or does it apply to all irregular forces? Can this be a pre-emptive action in that it

is designed to pre-empt future attacks by non-State actors? If so, how can its proportionality

be determined? This question of the scope of the right to use force against non-State actors iscrucial in any assessment of the legality of the recent attacks by Israel against Lebanon.77

Many commentators have asserted that the ICJ addressed and decided this important

doctrinal issue in the WallAdvisory Opinion (2004)78 and that it rejected the possibility of

self-defence against non-State actors. In fact it did not go so far. The Courtprobably

wiselyactually avoided pronouncing on the question of self-defence against a non-State actor

in two recent cases, the WallOpinion and also DRC v. Uganda (2005).79 It attracted some

criticism for so doing. However, its caution illustrates the divisive nature of this issue and the

uncertain state of the law. Its discussion of self-defence in the WallOpinion was very brief; so,

perhaps, the common misinterpretation of paragraph 139 of its judgment is not surprising.

The Court said that Article 51 of the Charter thus recognizes the existence of an inherent

right of self-defence in the case of armed attack by one State against another State. However,

Israel does not claim that the attacks against it are imputable to a foreign State.80 This does

not say that Article 51 limits self-defence to such cases or that it only allows self-defence in

the case of an armed attack by a State. It simply makes clear that Israel is not relying on this

part of the right of self-defence. The Court then goes on to consider whether Israel has the

right of self-defence against non-State actors. The paragraph continues: The Court also

notes that Israel exercises control in the Occupied Palestinian Territory and that, as Israelitself states, the threat which it regards as justifying the construction of the wall originates

within, and not outside, that territory. The situation is thus different from that contemplated

by Security Council Resolutions 1368 (2001) and 1373 (2001), and therefore Israel could

not in any event invoke those resolutions in support of its claim to be exercising a right

of self-defence. Consequently, the Court concludes that Article 51 of the Charter has no rel-

evance in this case. This seems to me to leave open the possibility of self-defence against

non-State actors in other situations and to avoid taking a position on the issue of principle.

But many have read more into the Courts judgment and have been critical of it. Judges

Higgins and Buergenthal both attacked the formulation of the Courts judgment.81

InDRC v. Uganda, the Court again chose to avoid the question. Uganda argued that the

DRC was responsible for the armed actions of Ugandan opposition forces based in the DRC

against it, and therefore that Uganda was entitled to act in self-defence against the DRC; but

it failed to provide any satisfactory proof of the DRCs involvement in these attacks, direct or

indirect. The Court held that Uganda was therefore not entitled to act in self-defence against

76 Ibid, 12.

77 Below n. 96.

78 2004 ICJ Reports; 2004 (43) ILM 581.

79 2005 ICJ Reports; 2006 (45) ILM 271.

80 Wall Opinion, para. 139

81 Judge Higgins Separate Opinion; Judge Buergenthal Declaration. However, Judge Higgins accepted that the doc-

trine of self-defence could not be used to justify the construction of the wall as it was not a forcible action.




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the DRC. The line of reasoning in this part of the Courts judgment is rather obscure, but it

does say clearly that the Court has no need to respond to the contentions of the parties as

to whether and under what conditions contemporary international law provides for a right of

self-defence against large-scale attacks by irregular forces.82

Judges Kooijmans83

andSimma84 were very critical of the Courts failure to consider this issue, especially given the

controversy surrounding this subject since the 2002 US National Security Strategy. Interest-

ingly, Judges Higgins and Buergenthal, who had been critical of the Court for its failure to

address this issue in theWallAdvisory Opinion, did not now show the same concern in this

case. Neither published any individual opinion.

VII.A. Israel and Lebanon 2006

The issues raised by the USNational Security Strategyconcerning the scope of the right to useforcethe legality of pre-emptive force, the question of what will trigger pre-emptive action,

the scope of self-defence against non-State actors such as terrorists and against their rogue

State sponsors, the role of the UNhave all arisen with regard to the recent conflict

between Israel and Hizbollah. The conflict in Lebanon and the international response to

it demonstrate a deep doctrinal divide on the scope of self-defence, in particular with

regard to proportionality. The central question is whether the war on terror gives Israel a

wide right to use force, even a pre-emptive right.

It is commonly said that the conflict began on 12 July 2006 when Hizbollah launched a

cross-border attack on Israeli forces in northern Israel, killed three Israeli soldiers and abductedtwo.85 The UN Secretary-General condemned the Hizbollah attacks and called for the release

of the Israeli captives.86 The same day, Israel wrote to the UN Security Council saying that the

attack was a clear declaration of war and reserving the right to act in self-defence.87 Therewas

a heavy exchange of fire and Israel mounted increasingly extensive attacks on Lebanon. Its use

of force by land, sea and air continued for a month and involved massive destruction. The UN

reported that Israel destroyed roads, airports, bridges, ports, power stations, as well as thou-

sands of houses. The Israeli attacks caused about 1000 civilian Lebanese deaths, injured

over 3500 and displaced almost a million people.88 The air, sea and land blockade of

Lebanon continued after the ceasefire. During the conflict, Hizbollah fired hundreds of

rockets into Israel, causing 50 civilian casualties and an estimated 114 military deaths and

disrupting the lives of hundreds of thousands of civilians.89

82 2005 ICJ Reports, para. 147.

83 Judge Kooijmans, Separate Opinion, paras. 25 35.

84 Judge Simma, Separate Opinion, paras. 415.

85 UN Document S/2006/560, 21 July 2006, Secretary-Generals Report on UNIFIL, for an account of theoutbreak of the conflict.

86 UN Document SG/SM/10563, 12 July 2006.

87 UN Document S/2006/515, 12 July 2006.

88 UN Press Releases, Humanitarian Fact sheets on Lebanon, IHA/1215, 11 August 2006; IHA/1216, 14 August

2006.

89 UN Press Release, SC/8808, 11 August 2006.




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The question arose whether Israel had the right of self-defence against such attacks and

how far its response was proportionate. Israels letter of 12 July 2006 to the Security

Council was brief. It reserved the right to act in accordance with Article 51 of the UN

Charter and exercise its right of self-defence when an armed attack is launched against aMember of the UN.90 This is a cautious formulation, based on the universally agreed prin-

ciple that there is a right of self-defence in response to an actual armed attack. As it turned

out, Israels

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