LEGALITY OF PRE-EMPTIVE STRIKES UNDER INTERNATIONAL LAW OF THE USE OF FORCE

Abstract

This article examines whether pre-emptive strikes are lawful under the traditional doctrine of self-defence in international law. It critically analyses the distinction between anticipatory self-defence and preventive self-defence within the framework of the United Nations Charter, customary international law, and post-1945 state practice. Building on the doctrinal foundations laid by the Caroline incident and the jurisprudence of the International Court of Justice, the article traces how claims to anticipatory force have evolved through key historical episodes, including the Cuban Missile Crisis, the 1967 Arab–Israeli War, Israel’s 1981 strike on Iraq’s Osirak reactor, and United States operations against Libya, Afghanistan, and Sudan. Particular attention is given to the transformative impact of the September 11 attacks and the subsequent articulation of the United States’ National Security Strategy (2002), which advanced a controversial doctrine of preventive self-defence. The legality of this doctrine is assessed through the lens of the 2003 Iraq War and later developments, including evolving state responses to terrorism, weapons of mass destruction, cyber operations, and hybrid threats. The article argues that while international law accommodates a narrowly defined right of anticipatory self-defence grounded in necessity, proportionality, and imminence, preventive self-defence remains inconsistent with the UN Charter and lacks sufficient support in customary law. The study concludes that the post-Iraq consolidation of opinio juris reflects resistance to unilateral preventive force and a reaffirmation of collective security under the UN system.