PREVENTIEVE ZELFVERDEDIGING
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“Although there were instances of the use of force against non-state actors prior to 2001, the 9/11 attacks urged discussion about the right to pre-emptive self-defence in international law. Following the attacks, the Bush Administration in the USA adopted a security strategy, based on the right to pre-emptive self-defence.
The doctrine of pre-emptive self-defence assumes the right to use force without international authorisation in order to prevent the development of a possible future attack by another state. The USA’s National Security Strategy (US Government, 2002) used the term of pre-emptive self-defence, particularly with reference to terrorist attacks:
«The war against terrorists of global reach is a global enterprise of uncertain duration. […] And, as a matter of common sense and self-defence, America will act against such emerging threats before they are fully formed.»
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The idea of pre-emptive self-defence is extremely controversial, as it goes against the core principles of international law regulating the use of force. The UN Charter allows for the use of force only in extreme circumstances, as a means of last resort, once all peaceful means have been exhausted. Furthermore, the use of force against another state in circumstances where there is a lack of an armed attack in the first place questions the necessity and proportionality of an attack carried out by a state which acts on the basis of ‘pre-emptive self-defence’.
The ICJ has not yet commented on the existence of a right to use force against non-state actors, nor the right to pre-emptive self-defence.”