ANTIPATORY ACTION IN SELF DEFENCEPDF电子书下载

1 Introduction 1

1.1 Anticipatory Action in Self-Defence: A Controversial Concept 1

1.2 The Temporal Controversy of the Right of Self-Defence 3

1.3 Structure and Methods of Research 10

1.3.1 Explanation of Central Terms 10

1.3.2 Methods of Research 11

1.3.3 Pre-Charter Customary Law (Part Ⅰ) 12

1.3.4 Post-Charter Customary Law (Part Ⅱ) 15

1.3.5 Rationale of Part Ⅲ 17

1.3.6 Tracing the Evolution of Customary Law 17

1.4 Notes on Terminology 21

1.5 Disclaimers 22

1.6 Contribution 22

References 23

Part Ⅰ Pre-Charter Customary Law on Self-Defence 29

2 Self-Defence in Ancient and Medieval Natural-Law 31

2.1 War in Ancient Greece and Rome 32

2.2 Early Christian Views on War and Self-Defence 35

2.3 Medieval Christian Views on War and Self-Defence 37

2.4 Christian Legalist Views on War and Self-Defence 43

2.4.1 Probabilistic Arguments and the First Rejections of the Just War Theory 43

2.4.2 Spanish Scholastics and their View on Self-Defence 45

2.4.3 Protestant Legalist Views on War: Gentili and Grotius 48

2.4.4 Self-Defence: As Seen by Gentili and by Grotius 50

2.5 The Christian Normative Framework and Self-Defence 54

References 57

3 Self-Defence as a Measure Short of War 59

3.1 The Rise of Positive Law 60

3.1.1 The Departure from the Christian Concept of Natural Law 61

3.1.2 Positive Law and War in Due Form 63

3.1.3 'Perfect' Wars 64

3.1.4 'Imperfect' Wars 66

3.2 War as an Instrument of Policy 68

3.2.1 Positive Law and War as a Legal Institution 68

3.2.2 State Practice and 'Measures Short of War' 69

3.3 The Positivist Normative Framework and Self-Defence 77

References 79

4 Self-Defence as an Exception to the Prohibition of War 81

4.1 Pacifist Trends of the Late Nineteenth and Early Twentieth Centuries 82

4.2 War in the Regulatory System of the Covenant of the League of Nations 84

4.3 Self-Defence in the League System 87

4.4 The Kellogg-Briand Pact and the Right of Self-Defence 88

4.5 State Practice in the 1930s and the Collapse of the League of Nations 91

4.5.1 The Invasion of Manchuria by Japan (1931-1932) 92

4.5.2 The Italian Invasion of Ethiopia (1935-1936) 94

4.6 Operation Catapult (1940) 96

4.7 The Emerging International Legal Framework and Self-Defence 98

References 99

5 The Right of Self-Defence and the Drafting of the UN Charter 101

5.1 Preliminaries and the Dumbarton Oaks Proposals 101

5.2 The Drafting of the UN Charter at the San Francisco Conference 103

5.2.1 Proposals Ahead of the Conference 103

5.2.2 The Plenary Discussions of the San Francisco Conference 104

5.2.3 The Work of Technical Committee 4 (Committee III/4) 105

5.3 The Final Provision on Self-Defence: Interpretation 109

5.4 Concluding Remarks 113

References 114

6 The Temporal Dimension of Self-Defence at the Time of the Charter 117

6.1 Forms and Content of Self-Defence in the Three Identified Frameworks 117

6.2 The Temporal Dimension of the Narrow Concept of Self-Defence 119

6.3 The Temporal Dimension of Preventive Wars 120

6.4 Limits of the Narrow Concept of Self-Defence 120

6.4.1 Necessity 121

6.4.2 Proportionality 122

6.5 The Status and Limits of Anticipatory Action in Self-Defence 123

References 123

Part Ⅱ Post-Charter Customary Law on Self-Defence 129

7 The Right of Self-Defence in the Judgments of the Nuremberg and Tokyo Tribunals 129

7.1 Introduction 129

7.2 The 'Major War Criminals' Trial' (Nuremberg, 1945-1946) 130

7.3 Self-Defence and the 'Major War Criminals' Trial' 131

7.4 The Trial and Judgment of the Japanese War Criminals (1946-1948) 135

7.5 Self-Defence as Interpreted by the Tokyo Tribunal 135

7.6 Self-Defence in the Nuremberg and Tokyo Judgments 138

References 139

8 Self-Defence in State-to-State Conflicts 141

8.1 Introduction 141

8.2 The Anticipatory Dimension of Self-Defence 142

8.2.1 The Sinai Campaign (1956) 142

8.2.2 The Six-Day War (1967) 144

8.2.3 The 'Yom Kippur War' (1973) 149

8.3 The Remedial Dimension of Self-Defence 150

8.3.1 The Iran-Iraq War (1980-1988) 150

8.3.2 The Falklands War (1982) 153

8.4 Self-Defence Claims with Anticipatory and Remedial Dimensions 155

8.4.1 The UK Bombing of a Yemeni Fort (1964) 156

8.4.2 The Gulf of Tonkin Incident (1964) 157

8.4.3 US Bombing of Libya (1986) 159

8.4.4 US Missile Attack Against Iraqi Intelligence Headquarters (1993) 161

8.4.5 The South Ossetia War (2008) 163

8.5 Concluding Remarks 167

References 170

9 Self-Defence and Weapons of Mass Destruction 173

9.1 Introduction 173

9.2 The Cuban Missile Crisis (1962) 174

9.3 The Israeli Bombing of the Iraqi Reactor (1981) 179

9.4 The Nuclear Weapons Advisory Opinion (1996) 182

9.5 The War Against Iraq (2003) 186

9.5.1 The 2003 Iraqi War: Setting the Context 186

9.5.2 The 2003 Iraqi War: Disarmament and Security Council Resolutions 188

9.5.3 The 2003 Iraqi War: Self-Defence Against WMD. 191

9.5.4 The 2003 Iraqi War: The Requirement of Necessity 192

9.5.5 Proportionality 196

9.6 Concluding Remarks 196

References 199

10 Self-Defence Against Non-State Actors 203

10.1 Introduction 203

10.2 Israel and Arab Militants 204

10.3 State Practice in the 1960s-1980s 207

10.4 Terrorist Attacks in the 1990s 216

10.4.1 The Kenya and Tanzania Bombings 218

10.5 Terrorist Attacks of the New Millennium 221

10.5.1 The Attack on the USS Cole (2000) 221

10.5.2 The Attacks of 9/11 (2001) 222

10.5.3 The War Against Iraq (2003) 231

10.5.4 Israeli Invasion of Lebanon (2006) 233

10.5.5 Turkish Incursion into Northern Iraq (2007-2008) 237

10.5.6 The Gaza Crisis (2008-2009) 239

10.6 Concluding Remarks 242

References 244

11 The Interpretation of Self-Defence and the United Nations 249

11.1 The General Assembly of the United Nations 249

11.2 The Work of the International Law Commission 251

11.2.1 Self-Defence and 'General International Law' 253

11.2.2 Armed Action Against Private Groups as 'State of Necessity' 255

11.2.3 'Preventive' Self-Defence 255

11.2.4 Necessity and Proportionality 256

11.3 The Findings of the 2004 UN High-Level Panel 258

11.4 The Work of the International Court of Justice 259

11.4.1 The Conditionality of an Armed Attack 260

11.4.2 Immediacy 263

11.4.3 Proportionality 264

11.4.4 The Customary Basis of Self-Defence 264

11.5 Concluding Remarks 265

References 267

12 The Temporal Dimension of Post-Charter Self-Defence 269

12.1 Temporal Dimension of Self-Defence in State-to-State Conflicts 269

12.2 Temporal Dimension of Self-Defence in Conflicts Involving WMD 273

12.3 Temporal Dimension of Self-Defence in Conflicts Involving Non-State Actors 274

12.4 Concluding Remarks 275

References 277

Part Ⅲ Anticipatory Action in Self-Defence and International Customary Law 279

13 The Legality of Anticipatory Action in Self-Defence 281

13.1 Findings of Part I 282

13.2 Findings of Part II 283

13.3 The Legality of Anticipatory Action in Self-Defence in International Law 284

References 287

14 The Limits of Anticipatory Action in Self-Defence 289

14.1 Findings of Part I 289

14.2 Findings of Part II 290

14.3 Parameters of Analysis 290

14.4 Standard-Type Armed Attacks 291

14.4.1 Necessity: Conditionality of an Armed Attack and Immediacy 291

14.4.2 Proportionality 301

14.5 Hit-and-Run Tactics and the Limits of Self-Defence 303

14.5.1 Necessity: Collective Conditionality of Attacks and Immediacy 304

14.5.2 Proportionality 308

14.6 Demonstrating the Fulfilment of the Conditions of Necessity and Proportionality 310

14.7 Conclusions as to the Limits of Anticipatory Action in Self-Defence 312

14.8 Self-Defence: What It Is and What It Is Not 312

References 315

Bibliography 319

Table of Documents 335

Table of Cases 341

Index 343