Pre-emptive Use of Force in Self-Defence Under International Law

Richard Siame

doi:10.37284/eajle.8.1.2580

Richard Siame University of Iringa

DOI: https://doi.org/10.37284/eajle.8.1.2580

Sambaza Makala:

Ikisiri

Pre-emptive use of force in self-defence is one of the most controversial areas under International Law. States attack each other even if the attack appears more distant. The Right of self-defence can only be invoked against an armed attack. Pre-emptive use of force allows states to use coercive measures against perceived future threats. This type of self-defence is used by the states prior to an armed attack which is contrary to the UN Charter. The defending states do not follow the requirement of necessity and proportionality when using force. The Research Questions were to what extent Pre-emptive use of force under International Law is legal and to what extent Pre-emptive use of force in self-defence is stipulated under the United Nations Charter. The objectives were to examine if Pre-emptive use of force under International Law is Legal and to examine if Pre-emptive Use of force in self-defence is stipulated under the United Charter. The study findings based on Primary Data have shown that Pre-emptive use of force in self-defence is not legal under the UN Charter 1945. Also, it was found that Pre-emptive use of force in self-defence under international Law is not stipulated anywhere in the United National Charter of 1945. Also, it was found that the UN Charter does not allow states to defend themselves in pre-emption of an armed attack where there is no actual armed attack or imminent threat. The study recommends that Pre-emptive use of force in self-defence could now be appropriate due to advanced technology, like Artificial Intelligence and cyber attacks. Also threats of terrorism and non-state Actors. The UN Charter should be amended to copy modernized warfare

Upakuaji

Bado hatuna takwimu za upakuaji.

Marejeleo

Anthony A. The Use of Force beyond the United Nations Charter Paradigm, London: Routledge, 2016

Deeks A. The Doctrine of Pre-emption, the Oxford Handbook, 2016

Garner B. Black’s Law Dictionary 8th ed. 2004

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Van De Hole (2003), ’Anticipatory Self-Defense under International Law’’ American University International Law Review 201319 No.1

Verma S. An Introduction to Public International Law, Prentice Hall of India, New Delhi, 20

JOURNAL

Gathii J. (2005) ’Assessing claims of the new doctrine of Preemptive war under the doctrine of Sources’’ Osgood Hall Law Journal 43.1/2 (2005).

Rivkin D. et al (2005) War, International Law and Sovereignty: Reva-wanting the Rules of the Game in a New Century – Preemption and the law in the twenty first century’ (2005) Chicago Journal of International Law. Force in International Law

INTERNATIONAL INSTRUMENT

The United Nations UN Charter, 1954

The Geneva Conventions 1949

The Statute of the International Court of Justice;

The Covenant of the League of Nations;

The Kellogg-Briand Pact;

The Vienna Convention on the Law of Treaties;

The Rio Treaty of 1947

CASES

Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. U.S.), 1986 ICJ;

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ;

Oil Platforms (Iran v. U.S.), 2003 ICJ;