1
NEW FRONTIERS, OLD PROBLEMS: THE WAR ON TERROR AND THE NOTION
OF ANTICIPATING THE ENEMY
Jackson Nyamuya Maogoto
*
Abstract
[The old truism, that international law is not a suicide pact, is forceful in an age of destructive weaponry.
Nevertheless strategically, there is little precedent for a major military offensive against a state that has not
proximately used force against the interests of the belligerent state. Legally, while a number of legitimate
justifications might permit the use of force, an appropriate international law doctrine, under which the United
States could execute the military campaign it recently successfully launched against Iraq, does not currently exist.
But that lacuna was seemingly plugged with the “Bush Doctrine” that advocates pre-emptive strikes against rogue
states and /or entities involved in terrorism. The so-called “Bush Doctrine” articulates a new rule of international
law that seeks to bring to life the doctrine of anticipatory self-defence as an appropriate means through which to
combat terrorism (including states that actively support terrorism or that are themselves terror states in the sense
of acquiring and stockpiling weapons of mass destruction).]
*
LL.B (Hons)(Moi), LL.M (Hons) (Cantab), PhD (Melb), Lecturer in law, University of Newcastle.
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NEW FRONTIERS, OLD PROBLEMS: THE WAR ON TERROR AND THE NOTION
OF ANTICIPATING THE ENEMY
[“We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge.”
George W Bush Jr., US President]
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[ “[With] [t]he Bush doctrine…The US president is hijacking the anti-terrorist agenda and crashing it into the
most sacred skyscraper in New York: the headquarters of the UN. If his doctrine is not rapidly rejected by other
states, preferably those which call themselves Washington’s allies, Article 51 of the UN Charter will have
suffered a mortal blow.” Jonathan Steele, Journalist]
2
[“War on terrorism cannot be the guiding principle of US foreign policy-the most powerful country on earth
preoccupied solely with self-preservation.” George Soros, International Financier]
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I. Introduction
The law of permissible uses of force in international law dates back to ancient Greek and
Hindu law.
4
Following the Christianisation of the Roman Empire, the use of force abroad was
driven by the just war doctrine. Under this doctrine, force could be used as long as it complied
with the divine will.
5
The foundation of this theory was that order was a deterrent to force, and
force threatened order.
6
At the time, war was used to punish wrongs and restore the status quo.
During this time, St. Augustine elaborated and gave authority to the concept of just war and
theorized that war for the purposes of aggression was unjust.
7
The just war concept remained the dominant guide on lawful resort to war throughout the early
centuries but developments in the fourteenth to sixteenth centuries rendered the already vague
and easily manipulated concept almost meaningless in the face of the emergence of
1
Commencement address by President George Bush at the West Point Military Academy graduation, June 1,
2002, announcing an expansive new policy of pre-emptive military action. The speech can be accessed at the
following URL <http://www.whitehouse.gov/news/releases/2002/06/20020601-3.html> (last visited May 1, 2003).
2
See e.g. Jonathan Steele, The Bush Doctrine Makes Nonsense of the UN Charter, THE GUARDIAN, London
(UK), Comment, June 7, 2002. This article can be accessed at the following URL
http://www.guardian.co.uk/bush/story/0,7369,728870,00.html (last visited May 1, 2003).
3
George Soros, Bush’s Inflated Sense of Supremacy; FINANCIAL TIMES, London, (UK), Mar. 13 2003, at 13.
4
See Sebastian Junger, The Forensics of War, VANITY FAIR, London, (UK) Oct. 1999, at 144.
5
See MALCOLM N. SHAW, INTERNATIONAL LAW 777-78 (4th ed. 1997).
6
Id. at 778.
7
IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES, 5-6 (1963); SHAW,
id. at 778; Leah Campbell, Defending Against Terrorism: A Legal Analysis of the Decision To Strike Sudan And
Afghanistan, 74 TUL. L. REV. 1067, 1075-1076 (2000).
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independent princes and national states.
8
In the seventeenth century however, a new standard
on the use of force was articulated by Dutch lawyer Hugo Grotius generally acclaimed as the
Father of International Law
9
who redefined the just war theory as self-defence.
10
Under the
new theory of self-defence, force was permissible to protect property and punish wrongs
suffered by citizens.
11
In essence, Grotius refined the just war doctrine to exclude general evil
contemplated by opposing states and required that some injury must have been suffered by the
state that resorted to force. Soon after, the treaty of Westphalia in 1648
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dispensed with the
just war doctrine entirely.
13
The just war doctrine was replaced by a universal concept of state
sovereignty that eviscerated the source of just war actions. Coming at the end of the period of
violent religious wars in Europe, the treaty sought to establish a balance of power among states
that was to last until 1914.
14
At the beginning of the 20
th
century and particularly during the era of the League of Nations
the freedom to resort to war became more and more restricted. The right of self-defence gained
in significance displacing the expansive right of self-preservation.
15
This development first
8
With the emergence of independent princes and national states, scholars argued that a prince recognizing no de
facto superior had the right to declare war. In essence, to be just a war was now not only confined to the vague
motive of a just cause but also extended to a war waged by one who had the power to declare it. See BROWNLIE,
supra note 7, at 7-13.
9
There were many publicists before Grotius who wrote on special parts of the International law. Consequent to
the centrality of war in international relations, these early authoritative treatises on international law focused on
the laws of war and peace in a bid to regulate war and outlaw the international anarchy that was inherent in the
sovereign right of war. These publicists are referred to by Oppenheim as ‘Forerunners of Grotius.’ Although
Grotius owes much to Gentilis, he is nevertheless the greater of the two and bears by right the title of-Father of the
International law. LASSA OPPEINHEIM, INTERNATIONAL LAW: A TREATISE (PEACE) 171 (1
st
ed., 1905)
Vol I.
10
See HUGO GROTIUS, DE JURE BELLI AC PACIS LIBRI TRES Bk. I, ch. I, § II (1646), reprinted in 2 THE
CLASSICS OF INTERNATIONAL LAW 172 (James Brown Scott ed. & Francis W. Kelsey trans., 1925).
11
Id.
12
The treaty of Westphalia concluded the Thirty Years War and marked the first attempt by nation-states in
Europe to establish a collective agreement as to use of force. See e.g. ANTONIO CASSESSE,
INTERNATIONAL LAW IN A DIVIDED WORLD 34-35 (1986).
13
Campbell, supra note 7, at 1076.
14
BROWNLIE, supra note 7.
15
In this Article the term self-defence is used in its contemporary meaning i.e., a lawful use of force in reaction to
an armed attack or other territorial injury suffered by a state while anticipatory self-defence (and pre-emptive
strikes) is used in the context of use of force by a state against another based on a perceived or potential threat of
attack or injury to its territorial integrity.
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culminated in the conclusion of the Kellogg-Briand Pact in 1928.
16
The general prohibition of
war laid down in Article I of the Pact was subject only to the reservation of the right of self-
defence.
17
Consequently, it was solely in the exercise of the right of self-defence that war could
still be lawful. The failure of the League to enforce the constrains on the waging of warfare
however paved the way for sovereign excesses leading to the outbreak of the Second World
War. The end of the war saw the birth of the United Nations and another effort to put in place
an international security regime to guarantee peace. With the adoption of the UN Charter, the
course of events and legal developments subsequent to the Second World War reinforced the
importance of the right of self-defence. Individual or collective self-defence became the
cornerstone relating to use of force and since then has been invoked with regard to almost
every use of external military force.
The volatile Cold War era that ushered in the UN era saw to it that any use of external military
force by states was almost always pegged on the right of self-defence, with condemnation of
any attempts to base the same on anticipatory self-defence. The dangers of a recognition of pre-
emptive or anticipatory self-defence were easily understood. About four decades after the birth
of the UN, the Cold War finally ended and a new era of hot peace was seemingly in the
making. One thing remained constant and fixed-the justification for external use of military
force by states (excepting UN authorized missions) remained firmly pegged on self-defence.
However, the atmosphere of great optimism, a hope for reduced international tension and a
greater chance for world peace masked the fact that most of the world’s problems were not
simply by-products of global politics a view that seemed to prevail during the political
bipolarisation of the Cold War era. In particular, terrorism was gradually undergoing a
16
General Treaty for the Renunciation of War, signed at Paris 27 August 1928, 94 L.N.T.S., 47, Treaty Series,
No. 29 (1929); United States Statutes at Large Vol. 46, Part 2, p 2343 (hereinafter Kellogg-Briand Pact).
17
Article I of the Kellogg-Briand Pact, id, provided:
The High Contracting Parties solemnly declare in the names of their respective peoples that they
condemn recourse to war for the solution of international controversies, and renounce it, as an
instrument of national policy in their relations with one another.
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transformation into a separate, generic policy issue. The development of terrorism as a
transnational enterprise would soon make it more than ever a separate unit of policy concern
not simply for States, but the international community. The Cold War era policy of focusing on
terrorist groups rather than terrorist attacks was now insufficient. Unilateral actions which had
previously been the most appropriate response were now an insufficient basis for overall policy
and a strain on international cooperation. Isolating terrorist groups and states supporting
terrorism seemed the urgent (though not new) primary goal of international cooperation aiming
at pressuring countries to make measures unilaterally or multinationally to deprive terrorist
groups of mobility, safe havens and sources of income.
Increasingly, it was recognized that successful terrorists were choosing technology to exploit
the vulnerabilities of modern societies. With citizens tending to live, work and travel in close
proximity providing concentrated targets, modern societies are particularly susceptible to
massive attacks and weapons that are capable of killing many people at one time-weapons of
mass destruction.
18
This fact was not lost on perpetrators of terrorism as witnessed by its
growing capabilities and lethalness throughout the Cold War era and into the post-Cold War
era.
19
Though terrorism has always been high on the international agenda, it was the September
11, 2001 attacks that brought the issue of terrorism and the international regime on the use of
force into a new, urgent and sustained debate. With the US at the forefront, the emergence of
terrorism as a global threat was forcing states of the world to adopt a new view of sovereignty-
if a governing body cannot stop terrorists victimizing others from its territory, or if it offers
safe havens and finance-then the government of the victim will reach across borders to do the
necessary stopping. The strategy quickly crystallized into the so-called “Bush Doctrine” of hot
18
JESSICA STERN, THE ULTIMATE TERRORISTS 4 (1999).
19
Between 1970 and 1995, on average each year brought 206 more incidents and 441 more fatalities. STERN, id.
at 6.