Self Defense in the new Millennium

SELF-DEFENSE IN THE

NEW MILLENNIUM States’ Interests and Modern Terrorism

Jon Phillip Spiers, MD, JD

19 December 2011

SELF-DEFENSE IN THE NEW MILLENNIUM

States’ Interests and Modern Terrorism


He who makes himself a sheep will be eaten by wolves.

German Proverb

TABLE OF CONTENTS

I. INTRODUCTION -------------------------------------------------------------------------------- 3

II. THE DOCTRINE OF PREEMPTIVE ATTACK -------------------------------------------------- 7

A. The Caroline Incident ------------------------------------------------------------------ 11

B. The United Nations Charter and Self-Defense ------------------------------------- 18

C. Nicaragua v. United States. ----------------------------------------------------------- 25

III. SELF-DEFENSE IN THE ERA OF THE UNITED NATIONS 1945 - 2001. ------------------- 27

A. The 1962 Cuban Missile Crisis. ------------------------------------------------------ 30

B. The 1967 Arab – Israeli War. --------------------------------------------------------- 32

C. The Entebbe Hostage Rescue of 1976. ---------------------------------------------- 35

D. The 1981 Destruction of the Osiraq Nuclear Reactor. ---------------------------- 39

E. The Soviet Invasion of Afghanistan, 1979. ----------------------------------------- 43

F. United States Response to Berlin Bombing, 1986 --------------------------------- 45

G. The 1990 Iraqi Invasion of Kuwait --------------------------------------------------- 47

H. 1998 Cruise Missile Strikes Against Sudan and Afghanistan -------------------- 52

IV. SEPTEMBER 11, 2001; SELF-DEFENSE AND MODERN GLOBAL TERRORISM ---------- 56

V. SELF-DEFENSE AND THE ONGOING MEXICAN DRUG WAR ----------------------------- 66

VI. CAROLINE PRINCIPLES SURVIVE INTO THE 21ST CENTURY ----------------------------- 77

Self Defense in the New Millennium State’s Interests and Modern Terrorism


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I. INTRODUCTION

The doctrine of self-defense1 has been part of customary international law for centuries.

Most see self-defense as “inherent in the concept of Statehood.”2 Moreover, common sense,

dictates a party need not wait for an imminent harm to come to pass without taking action to

prevent the damage. Thomas Hobbes noted that while some individuals are stronger or weaker

than others are, none is so strong as to be beyond fear of their demise, justifying as the highest

necessity that of self-defense.3 Hobbes recognized the role of the state as a fictional person,

subject to similar restraints and limitations, writing “[f]or by art is created that great

LEVIATHAN called a COMMON-WEALTH, or STATE . . . which is but an Artificial Man;

though of greater stature and strength than the Natural, for whose protection and defence it was

1The terms “preemptive self-defense” and “anticipatory self-defense” are used in this essay to

refer to cases where a party uses force to respond to an imminent attack or in response to planned

further attacks after an attack has already occurred. This is in contrast to the broader term

“preventive self-defense,” where force is used to quell any possibility of future attack by another

state. Usage of these terms is inconsistent in the literature.

2 Christopher Greenwood, International Law and the Pre-Emptive Use of Force: Afghanistan, al-

Qaida, and Iraq, 4 San Diego Int'l L.J. 7, 11 (2003).

3 Thomas Hobbes, Leviathan, or The Matter, Forme and Power of a Common Wealth

Ecclesiasticall and Civil, (C B Macpherson ed., Penguin Books 1982) (1651).



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intended . . ..”4 Scholars such as Grotius, Pufendorf and Vattel have all espoused the necessity of

self-defense and, like Hobbes, applied the doctrine not only to individuals but also to nations.5

Judge Abraham Sofaer has written describing the broad historic philosophic support of the

principle of self-defense in preemption of attacks under specific circumstances.6

Most scholars recognize that this doctrine was most clearly enshrined in modern

international law following a minor skirmish along the northern border of the United States when

forces of Great Britain sank the U.S. flagged steamship Caroline in United States’ waters.

Customary international law recognized the existence of circumstances that made permissible the

application of extra-territorial force to protect sovereignty. This premise of self-defense evolved

parallel with technology of both war and peace, as both the potential lethality of attacks

increased and the ability of states to communicate more readily matured.

4 Id.

5 See Abraham D. Sofaer, On the Necessity of Pre-emption, 14 Eur. J. Int’l L. 209, 216 nn.24-26

(2003).

6. Id. at 216.



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The conclusion of World War II marked an end to the era when the Clausewitz doctrine

of waging unlimited war to implement state policy was acceptable international behavior.7

Nuclear weapons gave all nations pause as the destructive forces at nations’ disposal reached

new heights. Imminent danger, in the era of intercontinental ballistic missiles armed with

multiple independent targetable reentry vehicles, as well as less conventional nuclear,

bacteriological, chemical weapons, and highly destructive conventional weapons, requires

redefinition. Modern weapons, particularly those of mass destruction, dictate that traditional

concepts of self-defense evolve. Yet some scholars so narrowly construe the possible application

7 Carl von Clausewitz, On War (James Graham trans., Brownstone Books (2009)) (1831).

Clausewitz’s premise that “[w]ar is not merely a political act, but also a real political instrument,

a continuation of political commerce, a carrying out of the same by other means” is readily

applied to most, if not all, wars.



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of force as to render almost all acts of self-defense illegal8, applying a stricter interpretation than

even that rendered by the International Court of Justice in Nicaragua v. United States.9

Concurrent with the development of increasingly lethal weapons of mass destruction was

the transformation of the concept of imminence. Into this milieu, where imminence must be

redefined to suit dramatically different and varied threats, is thrust the asymmetric conflicts

characteristic of terrorism. Non-state actors are using increasingly lethal and coordinated

methods to attack states and their citizenry. There exists a recognizable potential for a non-state

actor to acquire and use a complex chemical, bacteriological, or even a nuclear weapon. Self-

defense must accommodate this change. This is further complicated by the maturation of

international concepts of human rights. Today self-defense measures are assessed not only in

light of the Caroline factors of imminence, necessity, and proportionality, but also in relation to

their impact on human rights. Nations must not be limited by outdated concepts as they struggle

8 See generally Ian Brownlie, International Law And The Use of Force by States (1963);

Christine Gray, International Law and The Use of Force (2000); Louis Henkin, How Nations

Behave (1979); Yoram Dinstein, War, Aggression and Self-Defence (3rd ed., Cambridge Univ.

Press 2001); Mary Ellen O'Connell, The American Society of International Law Presidential

Task Force on Terrorism; The Myth of Pre-emptive Self-Defense, available at

http://www.asil.org/taskforce/oconnell.pdf (last visited Oct. 19 2011)

9 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits,

Judgment, I.C.J. Reports 1986, p.14.



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to fulfill the obligations of their social contract to their citizens and to their neighbors.

Conversely, nations cannot rely on claims of self-defense to wage unfettered wars against

sophisticated actors without consideration and application of the classic requirements of just war

and lawful self-defense.

Even the line between common criminal activity and terror is blurred. Terror takes many

forms, and the drug cartels along the border of the United States and Mexico are increasingly

using terror tactics to further their aims. Atrocities committed by these non-state actors are

frighteningly common, and their violence transcends national borders. The governments of

Mexico and the United States have had only modest success against the drug cartels using

conventional law enforcement means. Escalating violence endangers the citizenry of both

nations, making it is necessary to evaluate the drug cartels and their actions in the scope of

preemptive self-defense measures. Such measures must include the consideration of targeted

killings of those figures participating in the hostile actions against Mexico and the United States

against a backdrop of international human rights and domestic law.

II. THE DOCTRINE OF PREEMPTIVE ATTACK

In 1625, Hugo Grotius noted the right of a state to act preemptively in its own defense

and defined three requirements for invoking a claim of self- defense: there must be an immediate



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danger, defensive actions are necessary to counter the threat, and the defense is proportionate to

the threat.10 Grotius wrote, “[the] first cause of a just war is an injury not yet done which

menaces body or goods.”11 Baron Samuel Pufendorf, considering just war and self-defense, held

that it is just for one to attack another who demonstrates his intent to attack, positions himself to

do the harm, and equips himself to do the harm, without actually waiting for the harm to occur.12

Pufendorf recognized that society would be rendered untenable were man deprived of his

“liberty of resistance” to ward off attacks.13 Pufendorf wrote:

The [l]ife of [m]en would then indeed most properly rendered [i]nsociable, if,

in a [n]atural [s]tate, any bounds were set to the [l]iberty of [r]esistance. For

what [a]ge of [t]orments should I undergo, if another [m]an were allow’d to

perpetually to lay me on only with moderate [b]lows, whose [m]alice I could

not otherwise stop, or repel, than by compassing his [d]eath? Or if a

10 Robert P. Chatham, Defense of Nationals Abroad: The Legitimacy of Russia's Invasion of

Georgia, 23 Fla. J. Int'l L. 75, 82 (2011).

11 Sofaer, supra note 5,at 216, (quoting H. Grotius, De Jure Belli: et Pacis (1853) at 206).

12 See Samuel Pufendorf, De Jure Naturae et Gentium, (Basil Kennett ed, Jean Barbeyrac &

Basil Kennett trans, The Lawbook Exchange 2005) (1672) at 144-160.

13 Id. at 147



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[n]eighbor were to continually to infest me with [i]ncursions and [r]avages

upon my [l]ands and [p]ossessions, whilst I could not lawfully kill him, in my

[a]ttempts to beat him off?14

Professor Oscar Schachter noted the potential for the use of force distinct from the

defense of armed attack on a state. These seven categories include

“(1) the use of force to rescue political hostages believed to face imminent

danger of death or injury,” as demonstrated by the Israeli actions at Entebbe,

discussed below;

“(2) the use of force in a foreign state believed to support acts directed against

nationals of the state claiming the right of defense,” as the United States did in

1986 when it bombed Libya;

“(3) the use of force against troops, planes, vessels or installations believed to

threaten imminent attack by a state with declared hostile intent,” such as the

Israeli attack on Egypt to preempt Egypt’s planned invasion of 1967;

14 Id.



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“(4) the use of retaliatory force against a government or military force so as to

deter renewed attacks on the state taking such action,” such as the 1998 cruise

missile strikes in Afghanistan and Sudan by the United States;

“(5) the use of force against a government that has provided arms or technical

support to insurgents in a third state,” such as the support of the rebels in

Nicaragua by the United States;

“(6) the use of force against a government that has allowed its territory to be

used by military forces of a third state considered to be a threat to the state

claiming self-defense,” as in the 1962 Cuban Missile Crisis;

“(7) the use of force in the name of collective defense (or counter intervention)

against a government imposed by foreign forces and faced with large-scale

military resistance by many of its people,” of which the Soviet invasion of

Afghanistan in 1979 is an example.15

To understand how these categories developed, a look back to the sinking of the SS

Caroline by Great Britain provides an accepted starting point.

15 Oscar Schachter, Self-Defense and the Rule of Law, 83 Am. J. Int'l L. 259, 271 (1989).



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A. The Caroline Incident

In the summer and fall of 1837, William Lyon Mackenzie finalized his plans to

overthrow the government of Upper Canada.16 Little did Mackenzie realize the implications of

his actions would have over the next one hundred seventy-four years. Mackenzie implemented

his plans in early December of 1837, but his supporters were handily defeated at the battle of

Montgomery’s Tavern on December 7, 1837.17 Mackenzie sought refuge in Buffalo, New York,

where he continued to agitate and seek to foment rebellion.18 Mackenzie hatched a scheme

16 See generally George M. Wrong & H.H. Langton, The Chronicles of Canada: Volume VII –

The Struggle for Political Freedom (2009); Roger E. Riendeau, A Brief History of Canada

(2007); Colin Read, The Rebellion of 1837 in Upper Canada (1988).

Upper Canada consisted of lands north of the Great Lakes near the headwaters of the St

Lawrence River. This province comprised much of what is now Southern Ontario. Upper

Canada was established to govern the central third of British North America.

Lower Canada, by contrast, was to the northeast, comprising much of what is today Quebec and

Labrador. Lower Canada comprised much of what was the formerly French colony of New

France.

17 See generally Wrong & Langton, supra note 16; Riendeau, supra note 16; Read, supra note

16.

18 Wrong & Langton, supra note 16, at 65-66.



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whereby volunteers would invade Upper Canada from the Canadian territory Navy Island in the

Niagara River.19 Over the next few weeks, while harassing the British forces in Upper Canada,

Mackenzie’s forces accumulated stores of food, arms, and ammunition at Navy Island, often

using the services of the SS Caroline to ferry men and equipment.20

On December 29, unwilling to tolerate further attacks, a British force struck, seeking to

capture SS Caroline at Navy Island.21 Not finding the ship at Navy Island, the British force

sought her at her anchorage in the United States at Fort Schlosser, where the Caroline was

captured, towed to the center of the Niagara River, and set ablaze.22

19 Id. ; Riendeau, supra note 16, at 146-47

20 Read, supra note 16, at 19-20

21 Id. at 20

22 Thomas Nichols, The Coming Age of Preventive War 2 (2008); Craig H. Allen, Maritime

Counterproliferation Operations and the Rule of Law 139 (2007); Martin A. Rogoff & Edward

Collins, Jr., The Caroline Incident and the development of International Law, 16 Brook. J. Int'l

L. 493 (1990); R.Y. Jennings, The Caroline and MacLeod Cases, 32 Am. J. Int'l L. 82, 82-84

(1938).



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The Caroline broke apart over several days, with the burnt out hulk eventually careening

over Niagara Falls.23 Mackenzie was not at Navy Island or aboard Caroline at the time of the

attack.24 The rebel leader was later convicted of violating American neutrality laws.25

The furor over the Caroline led to heightened tensions between the Unites States and

Great Britain, rekindling many of the tensions of the War of 1812. President Martin Van Buren,

fearing another war with Great Britain, issued a proclamation on January 5, 1838 declaring

neutrality in the Caroline affair and exhorting citizens of the United States to desist from actions

against Great Britain.26 The controversy continued into the administrations of Presidents

Harrison and Tyler, who assumed office on President Harrison’s untimely death. Alexander

Baring, 1st Baron Ashburton, and United States Secretary of State Daniel Webster ultimately

reached an accord; the United States agreed with Great Britain there were circumstances that

23 Id.

24 Id.

25 Id.

26 Martin Van Buren, Proclamation of Neutrality in the Caroline Affair, reprinted in Fred L.

Israel & Jim F Watts, Presidential Documents: The Speeches, Proclamations, and Policies That

Have Shaped the Nation From Washington to Clinton 91-92 (2000).



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necessitated the trans-border use of force in self-defense outside of the context of war.27 The

United States did not believe this was such a circumstance, while Great Britain did.28

According to Webster, a nation may only use preemptive force if it can confirm a

necessity of self-defense.29

Under these circumstances, and under those immediately connected with the

transaction itself, it will be for Her Majesty's Government to show, upon what

state of facts, and what rules of national law, the destruction of the "Caroline"

is to be defended. It will be for that Government to show a necessity of self-

defence, instant, overwhelming, leaving no choice of means, and no moment

for deliberation. It will be for it to show, also, that the local authorities of

Canada,- even supposing the necessity of the moment authorized them to enter

the territories of the United States at all,-did nothing unreasonable or

27 The Caroline (exchange of diplomatic notes between Great Britain and the United States,

1842), 2 J. Moore, Digest of International Law 409, 412 (1906).

28 Id.

29 Webster-Ashburton Treaty - The Caroline Case Correspondence, at

http://www.yale.edu/lawweb/avalon/diplomacy/britain/br-1842d.htm Accessed November 11,

2011.

http://www.yale.edu/lawweb/avalon/diplomacy/britain/br-1842d.htm



15

excessive; since the act justified by the necessity of self-defence, must be

limited by that necessity, and kept clearly within it. It must be strewn that

admonition or remonstrance to the persons on board the "Caroline" was

impracticable, or would have been unavailing; it must be strewn that daylight

could not be waited for; that there could be no attempt at discrimination,

between the innocent and the guilty; that it would not have been enough to

seize and detain the vessel; but that there was a necessity, present and

inevitable, for attacking her, in the darkness of the night, while moored to the

shore, and while unarmed men were asleep on board, killing some, and

wounding others, and then drawing her into the current, above the cataract,

setting her on fire, and, careless to know whether there might not be in her the

innocent with the guilty, or the living with the dead, committing her to a fate,

which fills the imagination with horror. A necessity for all this, the

Government of the United States cannot believe to have existed.30

While Mackenzie’s failed rebellion has become a footnote in Canadian history, the

Caroline incident has achieved immortality for defining the boundaries of the self-defense right

30 Id.(emphasis added).



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of a nation against state as well as non-state actors.31 While diplomats defined the criteria for

such action, it was the practice of the international community that recognized and incorporated

the concepts into customary international law.32

Professor Jordan Paust notes that in 1796, just over 40 years prior to the 1837 Rebellion

in Upper Canada, the United States Supreme Court recognized that the formation of customary

international law grew from customs and practices among nations and peoples.

U.S. Supreme Court Justice Chase recognized that the customary law of

nations is human law “established by the general consent of mankind,” a point

made three years later by Representative John Marshall when he referred to

“the practice of every nation” and “the opinion of the world” as cornerstones of

the laws of nations.33

31 Nichols, supra, at 2; Allen, supra note 22, at 139; Rogoff& Collins, supra note 22; Jennings,

supra note 22, at 82-84.

32 Id.

33 Jordan J. Paust, Nonstate Actor Participation in International Law and the Pretense of

Exclusion, 51 Va. J. Int'l L. 977, 998 (2011) citing Ware v. Hylton, 3 U.S. (3 Dall.) 199, 227

(1796); Paust, Nonstate Actor Participation in International Law and the Pretense of Exclusion,



17

As predicted by Justice Chase and future Chief Justice Marshall, time has enshrined the

so-called Caroline test into customary international law, moving self-defense from “a political

excuse to a legal doctrine”.34

The Caroline test, assessing necessity, imminence, and proportionality, lends itself to

actions against state actors and non-state actors alike.35 For an act of preemptive self-defense by

a nation to be valid under customary international law, the necessity must be “instant,

overwhelming, and leaving no choice of means, and no moment for deliberation”.36

supra, at 998 citing John Marshall, Speech in the House of Representatives, in The Political and

Economic Doctrines of John Marshall 225, 227 (John Edward Oster ed., 1914).

34 Jennings, supra note 22, at 82.

35 See generally Helen Duffy, The “War on Terror” and the Framework of International Law,

(2005).

36 The Caroline (exchange of diplomatic notes between Great Britain and the United States,

1842), 2 J. Moore, Digest of International Law 409, 412 (1906).



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B. The United Nations Charter and Self-Defense

Over 100 years after the Caroline plunged over Niagara Falls, the Charter of the United

Nations was adopted.37. The Charter specifically addresses the use of force as an instrument of

foreign policy: “All Members shall refrain in their international relations from the threat or use

of force against the territorial integrity or political independence of any state, or in any other

manner inconsistent with the Purposes of the United Nations.”38

The Charter does not prohibit all uses of force, but also defines two uses of force that are

acceptable. First, under powers granted the United Nations Security Council by Articles 24 and

25 and defined by in particular by Article 42, the Security Council can authorize the use of

force.39 The Charter recognizes that instances prompting the use of armed force might include

37 The U.N. Charter entered force on 24 October 1945.

38 U.N. Charter art. 2, para. 4.

39 U.N. Charter Article 24 confers “primary responsibility for the maintenance of international

peace and security, and agree that in carrying out its duties under this responsibility the Security

Council acts on their behalf.” Article 25 tasks the Security Council with the ultimate authority in

deciding matters of international peace and security. U.N. Charter arts. 24 – 25; Chapter VII of

the U.N. Charter outlines the mechanism for the Security Council to react to breaches of the

international peace. Charter Article 51 defines certain circumstances under which a state might

contemplate the use of force in self-defense. U.N. Charter arts. 39-51 .



19

“any threat to the peace, breach of the peace, or act of aggression.”40 Here the Charter once

again reflects customary international law when it contemplates that a mere “threat to the peace”

might warrant military action in order to restore order.” Security Council sanctioned actions are

preconditioned on the Security Council determination of the necessity of using military force in

addressing a threat to peace, making the test used remarkably similar to the Caroline test. The

Security Council must assess the nature of the threat, including its imminence, and decide the

necessity of using force as permitted under Article 42 versus less bellicose means to resolve the

conflict as described in Article 41.41 Contemplating the need for “urgent military measures,”

Article 45 requires Member States to maintain forces in readiness for direction by the Security

Council to effects its duty under the Charter, though the Security Council cannot order a nation

to go to war.42

The second instance where there should be universal agreement that force is permissible

under the U.N. Charter is under the conditions outlined by Article 51, governing the use of force

40 U.N. Charter art. 39.

41 U.N. Charter arts. 40-41.




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in self-defense.43 U.N. Charter Article 51 permits self-defense "if an armed attack occurs against

a Member of the United Nations, until the Security Council has taken measures necessary to

maintain international peace and security.”44 Considered in parallel with customary international

law, a nation must consider whether it must actually wait for an attack to occur in order to

comply with article 51, or might it act sooner.

The Article 51 condition precedent, that of an armed attack, does not on its face seem to

allow for an action before the attack has taken place.45 Consideration in light of Article 2

paragraph 4 would seem to reinforce that view. However, careful consideration of the Charter in

the context of the practice of international law affords an alternative interpretation. The stated

purpose of the U.N. Charter, codified in Article 1 paragraph 1, includes an obligation


44 U.N. Charter, art. 51.

45 Frederic L. Kirgis, Pre-emptive Action to Forestall Terrorism, American Society of

International Law (June 2002) available at http://www.asil.org/insigh88.cfm (Last visited 29

October 2011) (Discussing the evolution of customary international law and interpretations of

article 51 in light of the change in international circumstance brought about by modern

terrorism).

http://www.asil.org/insigh88.cfm



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[t]o maintain international peace and security, and to that end: to take effective

collective measures for the prevention and removal of threats to the peace, and

for the suppression of acts of aggression or other breaches of the peace, and to

bring about by peaceful means, and in conformity with the principles of justice

and international law, adjustment or settlement of international disputes or

situations which might lead to a breach of the peace.46

The critical phrases in the purpose of the charter, indicating the obligations of member

states to work towards “the prevention and the removal of threats to the peace and for the

suppression of acts of aggression...” recognizes the obligation members have under international

law to act to remove threats. While it is always preferable that this be accomplished peacefully,

the consideration of Article 2(4) in light of its specific reference to Article 1 as well as in the

context of customary international law indicates that force can be used in a manner consistent

with the Article 1 purpose seeking the “prevention and removal of threats to the peace.”47

Arguably, signatories of the charter have an obligation to prevent and remove threats to

peace, using force if needed, since that is consistent with the goals of the charter in promoting

46 U.N. Charter art.1 para. 1 (emphasis added).

47 U.N. Charter art. 1 para 1; U.N. Charter art. 2 para 4.



22

the greater peace. This would remove the artificial and exceedingly narrow classification

imposed by conventional interpretation of permissible uses of force under the U.N Charter,

making it not only more consistent with customary international law but also making the Charter

more capable of dealing with threats beyond those considered by its authors.48

As notes Sofaer, “[t]he [U.N.] Charter was adopted by states that had used force to defeat

the Axis powers, which were able to gain power in part because the League of Nations had failed

to use force to stop their aggressions.”49 Paust reflects that “the evolving meaning or content of a

treaty is based partly in the ordinary meaning of terms as supplemented by the object and

purpose of the treaty and general patterns of practice and opinio juris over time.”50 What a treaty

says, and the U.N. Charter is, at its heart, a treaty, must be considered in light of the way states

perform under its guidance more than what the treaty says. An illustration of the pragmatic

48 See generally Michael J. Glennon, The New Interventionism: The Search for a Just

International Law, Foreign Aff., 2 (May-June 1999). Glennon argues that conventional

interpretations of permissible uses of force under the charter are unable to address the challenges

posed by today’s international state and non-state actors.

49 Sofaer, supra note 5, at 213 n.14.

50 Jordan J. Paust, Permissible Self-Defense Targeting and the Death of bin Laden, supra, at 583

n.4 citing Vienna Convention on the Law of Treaties art. 31(1), (3)(b)-(c), May 23, 1969, 1155

U.N.T.S. 331 (entered into force Jan. 27, 1980).



23

application of the Charter to the use of force can be seen in the aftermath of World War Two.

Modern international jurisprudence affirmed the applicability of the Caroline test, with its

notable application at the International Military Tribunals at Nuremberg.51 The Caroline

standard also found application in the International Military Tribunals of the Far East.52

At Nuremberg, German defense counsel argued that Germany was “compelled to attack

Norway by the need to forestall an Allied invasion and that her [Germany’s] action was therefore

preemptive.”53 The tribunal considered and dismissed the German claims, noting Germany’s

actions were not justified under the Caroline test.54 Just as had been noted by Chase and

51 Olusanya Olaoluwa, Identifying the Aggressor Under International Law: A Principles

Approach, at 105 (2006).

52 See International Military Tribunal at Tokyo (1948), in 2 The Law of War: A Documentary

History 1029, 1157-59 (Leon Friedman ed., 1972).

53 Myres Smith Dougal & Florentino P. Feliciano, The International Law of War: Transnational

Coercion and World Public Order, at 211-212 (1994).

54 Olaoluwa, supra note 51, at 105



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Marshall, “…the Military Tribunal noted international law ‘grows out of the common reactions

and the composite thinking’ of the community.”55

In 1947, the United Nations General Assembly directed the International Law

Commission to “formulate the principles of international law recognized in the Charter of the

Nuremberg Tribunal and in the judgment of the Tribunal,” further ensconcing the Caroline test

into international law.56 The result, Principles of International Law Recognized in the Charter of

the Nürnberg Tribunal and in the Judgment of the Tribunal (the Nuremberg Principles), further

solidified the legacy of the Caroline incident.57 The practical effect of this UN Commissioned

work was to remind the international community that the Caroline standard was alive, well, and

applicable in the United Nations era.

55 Paust, supra note 33, citing United States v. Wilhem von Leeb, XI Trials of War Criminals

Before the Nuernberg Military Tribunals Under Control Council Law No. 10, 630 (1950) (“The

High Command Case”) reprinted in Jordan J. Paust, Jon M. Van Dyke & Linda A. Malone,

International Law and Litigation in the U.S. 2, 4, 29, 94, 105-08 (3d ed. 2009).

56 G.A. Res. 177, 2ND Sess., U.N. G.A. Doc. A/505, 1947.

57 "Yearbook of the International Law Commission, 1950". Available at

http://untreaty.un.org/ilc/publications/yearbooks/1950.htm.

http://untreaty.un.org/ilc/publications/yearbooks/1950.htm



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C. Nicaragua v. United States.

Germane to the application of the doctrine of self-defense against state and non-state

actors is the decision by the International Court of Justice in Nicaragua v. United States. This

decision affirms that the right to self-defense exists distinct from that afforded by the U.N.

Charter, and the Charter did not supersede or limit that right.58 In 1979, over four decades of

rule by the family of Anastasio Samoza ended. The political heirs of Augustus Cesar Sandino

assumed power, establishing a socialist government. The United States was long opposed to the

Sandinista movement, and when it assumed power, the United States sought to indirectly

destabilize and topple the regime by acting through intermediaries loyal to the Samoza regime.

After years of internal strife, some attributable to the support of the anti-government forces (the

Contras) by the United States, the Nicaraguan government sought relief in the International

Court of Justice.

In 1986, the ICJ returned its ruling on the merits. Despite the United States’ refusal to

recognize the jurisdiction of the court in applying the U.N. Charter, the court determined the

United States had acted illegally when it acted to support the activities of the anti-government

forces in Nicaragua. The United States was determined to have acted illegally by attempting to

58 Military and Paramilitary Activities In and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14,

P 176 (June 26).



26

intervene in the affairs of another state, of using force against another state, of violating the

sovereignty of another state, and of interrupting the maritime commerce of Nicaragua. While the

ruling was never enforced by the Security Council (as the United States had veto power over any

Security Council action) and Nicaragua ultimately withdrew its complaint, the implications are

important. First, the court recognized that an obligation not to interfere in the affairs of another

state existed distinctly from those delineated in the U.N. Charter. Second, the arming and

training of insurgents is a violation of the duty not to meddle in the affairs of another state, but it

does not equate to the use of force against that state; a state can be imputed the acts of non-state

actors only when it has operational, logistical, and organizational control of the non-state group.

This determination that the U.N. Charter did not remove or modify obligations of a state

under customary international law was not surprising. Discussing limitations imposed by the

U.N. Charter, Professor Michael Newton argues the “modern consensus that the sovereign right

of self-defense did not originate in Article 51 of the United Nations Charter and is not restricted

to responses enumerated therein.”59 Professor Oscar Schachter wrote, when describing the two

59 Molly McNab & Megan Matthews, Clarifying the Law Relating to Unmanned Drones and the

Use of Force: The Relationships Between Human Rights, Self-Defense, Armed Conflict, and

International Humanitarian Law, 39 Denv. J. Int'l L. & Pol'y 661, 674 (2011) citing Michael

Newton, Flying into the Future: Drone Warfare and the Changing Face of Humanitarian Law,

39 Denv. J. Int'l L. & Pol'y 601, 602 (2011).



27

schools of thought defining self-defense, “[t]he United Nations Charter has been said to reflect

this in characterizing self-defense as an ‘inherent right,’” but also recognized the competing

concept of the subordination of law to power, where “self-defense could not be governed by law

when a grave threat to the power of a state or to its way of life was perceived by that state”.60

Professor Paust asserts that the U.N. Charter admonition for preservation of territorial

integrity is not an absolute right, and one state can exercise its right to self-defense within the

territory of a state not responsible for an attack without coming into conflict with Article 51.61

An additional interpretation, put forth by D’Amato, argues that force is permissible so long as it

is not used to violate the territorial integrity or the political independence of a state. 62

III. SELF-DEFENSE IN THE ERA OF THE UNITED NATIONS 1945 - 2001.

Interpretations of the self-defense doctrine have evolved to recognize that an imminent

attack on a state, for which forceful response is a necessity in order to adequately avert or thwart

60 Schachter, supra note 15, at 259.

61 Paust, supra note 50, at 569-70 (2011) (arguing that drone attacks are permissible acts of self-

defense, not requiring consent of the nation in which the action is conducted).

62 Anthony D'Amato, Israel's Air Strike Upon the Iraqi Nuclear Reactor, 77 Am. J. Int'l L. 584

(1983).



28

the attack, can be sufficient to allow that state to act to defend itself without waiting for the blow

to strike.63 This is keeping with the Vienna Convention on the Law of Treaties, which allows a

party to suspend a treaty’s operation when an unforeseen change of an essential tenet of the

treaty radically changes a nation’s obligations under the treaty.64 An imminent attack is such a

situation. A target state’s U.N. Charter obligation to resolve conflicts peacefully is likewise

limited by an impending attack.

But states are not the only actors to which this principle applies. As interpretations of

self-defense have evolved, so too have the actors and actions prompting action in self-defense.

Both state non-state actors have long played a role in international politics,65 but it was not until

the latter half of the 20th century, when, fueled by near instantaneous news coverage and ever

more destructive technology, the repercussions of acts of terrorism and war were somewhat

63 The National Security Strategy of the United States of America, 18 (March 2006) available at

http://merln.ndu.edu/whitepapers/USnss2006.pdf; Kirgis, supra note 45.

64 Kirgis, supra note 45.

65 See e.g., Alexander N. Domrin, A Lost War on Terror: Forgotten Lessons of the Russian

Empire, 19 Mich. St. J. Int'l L. 63, 82 (2011) (discussing the assassination of Archduke Franz

Ferdinand, which, while perpetrated by a non-state actor, was perceived to be an action by a state

and ultimately served as an unwitting catalyst for World War I.)

http://merln.ndu.edu/whitepapers/USnss2006.pdf



29

regularly seen, if not necessarily felt, around the world more than ever before.66 This has often

served as an unwitting co-conspirator, as many actors appear to most dangerous when exploiting

news coverage for recruitment, propaganda, and self-validation.

In the 2006 National Security Strategy of the United States, President George W. Bush’s

administration defined a strategy that recognized there are scenarios in modern affairs that would

require preemptive action. President Bush stated

To forestall or prevent such hostile acts by our adversaries, the United States

will, if necessary, act preemptively in exercising our inherent right of self-

defense. The United States will not resort to force in all cases to preempt

66 See, e.g., Aaron Schwabach, Kosovo Virtual War and International Law, 15 Law & Literature

1, 3-4 (2003) discussing Jean Baudrillard, The Gulf War Did Not Take Place (Bloomington:

Indiana University Press, 1991) (Professor Schwabach, noting the transformation of war into a

mere likeness of war, states Baudrillard’s “basic point is that the Gulf War was not a war but the

simulacrum of a war; it happened not on the battlefield but on television. All of the traditional

trappings of the buildup to war were presented, even grotesquely exaggerated, on television; at

the end, however, we (the audience) were deprived of the final battle, left with neither victory for

the Allies nor defeat for Saddam Hussein.” This illustrates the public’s heightened awareness of

war and the paradoxical, relative insensitivity to war that accompanied the transformation from

an action in an often distant land to mere entertainment.).



30

emerging threats. Our preference is that nonmilitary actions succeed. And no

country should ever use preemption as a pretext for aggression.67

Support and acceptance of preemptive action against an imminent attack is demonstrated

earlier than 2006.68 A reinterpretation of the concepts of imminence, necessity and

proportionality was critical to the outcome of the 1962 Cuban Missile Crisis, when the Soviet

Union placed nuclear missiles in Cuba.

A. The 1962 Cuban Missile Crisis.

During the Cuban Missile Crisis, President John F. Kennedy was forced to interpret self-

defense in terms of nuclear conflict. Kennedy recognized that having nuclear weapons in such

proximity to the United States constituted a definite threat to peace and mandated any definition

of the concept of imminence account for this dramatic change in the fabric of warfare. As notes

Professor Greenwood, the “gravity” of the threat was thrust into the considerations of any

67 The National Security Strategy of the United States of America, 18 (March 2006) available at

http://merln.ndu.edu/whitepapers/USnss2006.pdf (Emphasis added).

68 Ziyad Motala & David T. Butle Ritchie, Self-Defense in International Law, The United

Nations, and the Bosnian Conflict, 57 U. Pitt. L. Rev. 1, 10 (1995).

http://merln.ndu.edu/whitepapers/USnss2006.pdf



31

preemptive action.69 The destructive nature and immediacy of any threat should a weapon be

deployed required action to avert the threat. Addressing the nation, President Kennedy declared

“It shall be the policy of this nation to regard any nuclear missile launched from Cuba against

any nation in the Western Hemisphere as an attack by the Soviet Union on the United States,

requiring a full retaliatory response upon the Soviet Union.” 70

Kennedy announced a naval blockade, arguably an overture to war, stating

To halt this offensive buildup, a strict quarantine on all offensive military

equipment under shipment to Cuba is being initiated. All ships of any kind

bound for Cuba, from whatever nation or port, will, if found to contain cargoes

of offensive weapons, be turned back. This quarantine will be extended, if

needed, to other types of cargo and carriers. We are not at this time, however,

69 See Greenwood, supra note 2.

70 John F. Kennedy, Radio and Television Report to the American People on the Soviet Arms

Buildup in Cuba (Oct 22, 1962), reprinted in Public Papers of the Presidents of the United

States: John F. Kennedy 1962 806, 806-07.



32

denying the necessities of life as the Soviets attempted to do in their Berlin

blockade of 1948.71

Ultimately, the Soviets removed their offensive missiles from Cuba while the United

States removed an outdated missile system from Asia Minor. Scholars agree this episode was

the cold war confrontation that brought the two superpowers closest to nuclear war. Kennedy

had taken aggressive action just short of war to preserve the peace. Kennedy showed it was the

right of a nation to take steps to protect her citizens outside the bounds of the traditional precepts

of self-defense.

B. The 1967 Arab – Israeli War.

While the Cuban Missile crisis brought the world to the brink of nuclear war while

redefining the parameters by which the world community would measure imminence, no shots

were fired. Traditional “force” was never employed by either state, though both nations

deployed forces for battle. This was not the case in the Middle East just 5 years later. In what is

near universally accepted as the benchmark for a preemptive action against states in modern

71 Id.



33

times, the successful 1967 Israeli action to thwart an inevitable invasion by Egypt and Syria has

been described as “[a] classic example of a preemptive war.”72

Tensions between Israel and its surrounding Arab neighbors had been growing

throughout late 1966 and early 1967. These tensions achieved critical mass in the Spring of

1967. Egyptian President Gamal Abdel Nasser set in motion a series of events that clearly

signaled his intentions to Israel. Nasser strengthened military ties with Syria, Jordan and Iraq.

Nasser mobilized his own forces. Nasser ejected the United Nations peacekeeping force; the

force had been deployed in the Sinai since 1956 to act as a buffer between Egypt and Israel.

Egypt undertook a blockade of Israel’s access to the Red Sea and thus the Indian Ocean. Just as

in the Cuban Missile Crisis, this blockade could be construed as an act of war.

Finally, Nasser not so subtly proclaimed the goal in any future Egyptian war with Israel

was the total destruction of Israel. Israel carefully considered the various acts and postures, and

recognized an attack was imminent. With Egypt massing its forces at the Israeli border, the

72 Henry Shue & David Rodin, Preemption: Military Action and Moral Justification 215 (2007));

Karl P. Mueller et al., Striking First: Preemption and Preventive Attack in U.S. National Security

22 (2006); Thomas Franck, Recourse to Force 103 (2002); William V. O'Brien, The Conduct of

Just and Limited War 133 (1981); but see O'Connell, supra note 8.



34

implication was clear.73 Israel could not be certain of its survival were it to wait for the

inevitable attack. A preemptive action was the only alternative, as it was clear there was no

diplomatic action that would deter Egypt.

Israel struck first, relying on the element of surprise to aid them in defeating the

numerically superior forces of the Arab states already poised to attack.74 As a consequence of

the operational disarray of the aggressor states, Israel took effective control of the West Bank

and East Jerusalem from Jordan, the Gaza Strip and the Sinai from Egypt, and the Golan Heights

from Syria.

The classic tenets of a justifiable preemptory self-defense were satisfied. Here the attack

on Israel was indisputably imminent. There was no other means to avert harm to Israel and its

people, satisfying the criteria of necessity. The response, even against overwhelming odds, was

proportional. Unfortunately, the peace this victory brought the Israelis would be short lived, as

the Egypt and Syria would successfully launch a surprise attack in 1973. Israel was unable to

fend off this attack preemptively, despite warnings of an imminent attack offered by Jordan in

73 Charles W. Kegley & Gregory A. Raymond, The Global Future: A Brief Introduction to World

Politics 219 (2009); Shue & Rodin, supra note 72, at 215

74 Kegley & Raymond, supra note 72, at 219; Shue & Rodin, supra note 72, at 215 ; Mueller,

supra note 72, at 22; Franck, supra note 72, at 103; O'Brien, supra note 72, at 133



35

secret meetings with the Israeli government. The Israeli intelligence service did not think Syria

would go to war without Egypt, and their sources led them to believe Egypt was unprepared for

war. The comparison between the two wars is most important because of Israel’s compliance

with the Caroline principles for preemptive self-defense in both, despite the mistake in

determining the imminence of the attack in the second war. Since Israel did not feel there was an

imminent attack in 1973, they did not implement their strategy of a preemptive attack. The Arab

attack came during Yom Kippur, hoping to maximize the benefit of the surprise. The defense

Israel mounted against this second attack was considerable, resulting in significant, albeit

temporary, territorial gains.75 Yet even this response was within the bounds of self-defense

under international law as well as U.N. Charter article 51 self-defense.

C. The Entebbe Hostage Rescue of 1976.

Israel’s strategy of aggressive pre-emptive self-defense again proved successful in less

than a decade, when Israel was forced to mount a preemptive strike against what was ostensibly

75 Abraham Rabinovich, The Yom Kippur War, (2004).



36

a group of non-state actors and rescuing hostages held by terrorists at Entebbe airport in

Uganda.76

On June 27, 1976, a group of Palestinian and German terrorists hijacked an Air France

plane with 248 passengers onboard shortly after it refueled in Athens, Greece. The jet first flew

to Libya, where one passenger was released. From there the plane flew to Entebbe, in Uganda.

Additional terrorists joined the group in Uganda. Some hostages were released, but over 100

were detained. The terrorists delivered an ultimatum, demanding the release of numerous

prisoners in return for the lives of the hostages. As the July 1 deadline approached, the Israeli

government recognized there was going to be no response to diplomatic efforts. Indeed, there is

evidence the attack was aided and abetted by the Ugandan regime under Idi Amin Dada,77 and it

is generally accepted the hostages were in imminent danger of death when attempts at a

diplomatic solution collapsed.78

76 Dinstein, supra note 8 (On 27 June 1976, terrorists hijacked an Air France plane bound for

Paris from Israel after a stop in Athens. The terrorists had the plane refueled at Benghazi, Libya,

and then sought refuge at Entebbe airport in Uganda.).

77 Dinstein, supra note 8.

78 See Wallace F. Warriner, The Unilateral Use of Coercion Under International Law: A Legal

Analysis of the United States Raid on Libya on April 14, 1986, 37 Naval L. Rev. 49, 59 (1988).



37

Israel acted to rescue the hostages without the consent of Uganda, and, though Israel

stationed support assets at Nairobi airport in Kenya, Israel did not inform Kenya of the ongoing

operation.79 Some claimed this was a violation of Kenya’s territorial sovereignty, in violation of

the U.N. Charter.80 While many Arab and African states sought UN condemnation for the Israeli

action, no security resolution condemning Israel passed. Central to complaints was the fact that

Israel entered another state, leading to assertions of violation of territorial integrity.

While a strict interpretation of the U.N. Charter articles 2(4) and 51 might support this

view, the well-established Caroline principles are unchanged; a state can act in the territory of

another without necessarily acting against the state within which the action takes place. The

validity of this view is manifested by the relative inaction of the United Nations Security

Council. Despite calls for condemnation by the aforementioned African and Arab states, the

Security Council did not condemn Israel.81 Rather, the United Kingdom and the United States

offered a draft resolution that suggested the Security Council directed its ire at the crimes of air

79 Chatham, supra note 10, at 99-100.

80 Id.

81 Id.



38

piracy and other terrorist acts.82 The rescue operation itself has attained near legendary status

because of its audacity, precision, and determination, all orchestrated and performed in

compliance with customary international law.

82 See U.N. Security Council, United Kingdom of Great Britain and Northern Ireland and United

States of America: Draft Resolution, U.N. Doc. S/12138 (1976), available at http://daccess-dds-

ny.un.org/doc/UNDOC/GEN/N76/138/01/PDF/N7613801.pdf?OpenElement. (The draft

resolution

“1. Condemns hijacking and all other acts which threaten the lives of

passengers and crews and the safety of international civil aviation and calls

upon all States to take every necessary measure to prevent and punish all such

terrorist acts;

2. Deplores the tragic loss of human life which has resulted from the hijacking

of the French aircraft;

3. Reaffirms the need to respect the sovereignty and territorial integrity of all

States in accordance with the Charter of the United Nations and international

law;

4. Enjoins the international community to give the highest priority to the

consideration of further means of assuring the safety and reliability of

international civil aviation.”).

http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N76/138/01/PDF/N7613801.pdf?OpenElement.

http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N76/138/01/PDF/N7613801.pdf?OpenElement.



39

D. The 1981 Destruction of the Osiraq Nuclear Reactor.

The 1981 bombing of the Iraqi nuclear reactor at Osiraq stands, to some, in contrast to the

1967 Arab-Israeli War. A joint Franco-Iraqi program, the reactor was built by the French only

after protracted negotiations with the Iraqis aimed at minimizing the potential for weaponizing

the reactor. While the Iraqis initially wanted a reactor capable of generating plutonium, the

French ultimately agreed to a much more modest facility.83 In 1980, about a year before the

Israeli attack, the reactor was attacked by the Iranians as part of their war against the Iraqis.

Since the Iranians failed, the work on the reactor continued. Tensions in the region continued to

escalate. Israel believed it was faced with the imminent threat of a nuclear capable Iraq; an Iraq

headed by a leader who they felt was fully capable of launching a nuclear attack against the

Israeli state.84

Most but not all scholars contend this act by the Israelis did not meet the standard of the

Caroline test, placing it in the category often called “preventive self-defense.”85 Israel’s

83 Amos Perlmutter, Michael Handel & Uri Bar-Joseph, Two Minutes over Baghdad (2d. ed.

2008).

84 Michael R. Gordon, Papers From Iraqi Archive Reveal Conspiratorial Mind-Set of Hussein,

N.Y. Times, Oct. 26, 2011, at A12.

85 D'Amato, supra note 62, at 584.



40

justifiable concerns over the Iraqi reactor’s use in the development of nuclear weapons prompted

several months of planning by the Israeli Defense Force for the reactor’s destruction.86

Admittedly, Israel stood little chance of winning international approval as they attempted to

navigate between Scylla and Charybdis.87 Were Israel to wait for the reactor to become

operational before destroying it, the Iraqi populous near the reactor would be exposed to lethal

radiation, while if the Israelis acted before the reactor was operational they risked international

condemnation for their act because of the perceived lack of imminence.88

86 Rogoff & Collins, supra note 22, at 508-09.

87 Faced with condemnation, Israel argued the Caroline principles did not apply, as “[t]o assert

the applicability of the Caroline principles to a State confronted with the threat of nuclear

destruction would be an emasculation of that State's inherent and natural right of self-defence.”

U.N. Doc. S/PV. 2288, at 32 (1981).

88 Timothy L.H. McCormack, Self-Defense in International Law: The Israeli Raid on the Iraqi

Nuclear Reactor, 297-302 (St. Martin's 1996) (concluding that the destruction of the reactor was

justified as anticipatory self-defense, using the term “anticipatory self-defense” in a manner

similar to the term “pre-emptive self defense” ): Anthony D'Amato, Israel's Air Strike against

the Osiraq Reactor: A Retrospective, 10 Temple Intl & Comp L J 259, 262-63 (1996) (arguing

the bombing of the unfinished reactor was justified); but see O'Connell, supra note 8.



41

Israel chose to act before the reactor was operational, resulting in international

condemnation.89 It is important to note that condemnation of Israel seemed based on the fact

“Israel had failed to demonstrate that there was an imminent threat from Iraq and had thus failed

to satisfy the Caroline requirements for anticipatory self-defense, rather than on any rejection of

anticipatory self-defense as such”.90 Interestingly, President Reagan seemed to be concerned, at

least in part, that Israel had not exhausted diplomatic means, though he acknowledged Israel

might have believed the bombing was a legitimate act of self-defense.91 Moreover, this rejection

89 See S.C. Res. 487, U.N. SCOR, 36th Sess., 2288th mtg., U.N. Doc. S/RES/487 (1981)

(adopted unanimously, condemning the Israeli action).

90 Greenwood. supra note 2, at 14 citing Thomas Franck, Recourse to Force 105 (2002)

91 See The President's News Conference, Pub. Papers of Ronald Reagan 519, 520 (1981); see

also Statement and Remarks by the Department of State Spokesman (Fischer) at the Daily Press

Briefing, June 8, 1981, reprinted in Am. Foreign Pol'y Current Documents 1981, Doc. 301, at

684 (1984) (“The United States Government condemns the reported Israeli air strike on the Iraqi

nuclear facility, the unprecedented character of which cannot but seriously add to the already

tense situation in the area.”);Statement by the [U.S.] Representative at the United Nations

(Kirkpatrick) Before the U.N. Security Council, June 19, 1981, reprinted in Am. Foreign Pol'y

Current Documents 1981, Doc. 306, at 689-90 (1984) (noting the United States’ vote for

condemnation was “based solely on the conviction that Israel failed to exhaust peaceful means

for the resolution of this dispute.”); cf. Abraham D. Sofaer, The Sixth Annual Waldemar A. Solf

Lecture in International Law: Terrorism, the Law, and the National Defense, 126 Mil. L. Rev.

89, 109 (1989) (writing as Legal Adviser to the Secretary of State) (noting “absence of any



42

symbolized the will of the international community to adhere to the self-defense paradigm as

described in the UN Charter, in form if not in function.92 Interestingly, President Clinton, in

2005, verbalized what many felt in 1981 but could not reconcile with international law when he

stated the Israeli bombing was “the right thing to do.”93

evidence that Iraq had launched or was planning to launch an attack that could justify Israel's use

of force”).

92 W. Michael Reisman, Andrea Armstrong, The Past and Future of the Claim of Preemptive

Self-Defense, 100 Am. J. Int'l L. 525, 525-26 (2006) citing Military and Paramilitary Activities

in and Against Nicaragua (Nicar. v. U.S.), 1984 I.C.J. 392 (Nov. 26); Military and Paramilitary

Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27); Oil Platforms

(Iran v. U.S.), 1996 I.C.J. 803 (Dec. 12); Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161 (Nov. 6);

Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda) 2005 I.C.J. 168

(Dec. 19).

93 Bill Clinton, Interview at the World Economic Forum in Davor, (Jan. 27, 2005) available at

http://www.clintonfoundation.org/news/news-media/012705-cf-ee-cgi-usa-che-ts-interview-at-

the-world-economic-forum.

http://www.clintonfoundation.org/news/news-media/012705-cf-ee-cgi-usa-che-ts-interview-at-the-world-economic-forum

http://www.clintonfoundation.org/news/news-media/012705-cf-ee-cgi-usa-che-ts-interview-at-the-world-economic-forum



43

E. The Soviet Invasion of Afghanistan, 1979.

The former Soviet Union acted under the guise of mutual self-defense when it invaded

Afghanistan, supposedly at the behest of the Afghani government.94 Afghanistan was on the

verge of civil war throughout the 1970s. After a Marxist government assumed power in 1978,

tensions were heightened by reforms, leading to open rebellion. A Soviet-Afghan treaty afforded

the Marxist Afghan government the opportunity to call upon the Soviets for military support. As

conditions within Afghanistan deteriorated, the Afghans did just that. The Soviet Politburo

justified the invasion on the grounds of self-defense by stating, in part

The Soviet Union thereby is proceeding from a commonality of interests of

Afghanistan and our country in issues of security recorded in the 1978 Treaty

of Friendship, Good-Neighborliness, and Cooperation and the interests of

maintaining peace in this region. The favorable reaction of the Soviet Union to

this request of the leadership of Afghanistan also proceeds from the provision

of Article 51 of the U.N. Charter stipulating the inherent right of countries to

94 Christi Scott Bartma, Lawfare and the Definition of Aggression: What the Soviet Union and

Russian Federation Can Teach Us, 43 Case W. Res. J. Int'l L. 423, 441 (2010) citing Politburo

Decree, Central Committee of the Communist Party, 1979, P177/151(Ru.)(regarding the

placement of military detachments in Afghanistan by the Soviet Union).



44

collective and individual self-defense in order to repel aggression and restore

peace.95

While on the surface this seems a reasonable exercise of collective self-defense, most

now agree this was more an exercise in regional expansion than self-defense. Then Afghan

President Amin was deemed an unreliable ally by the Soviets, and they used the opportunity to

depose (and execute) him, replacing him with a more docile leader. The invasion was

condemned by the U.N. General Assembly after the Soviet Union’s permanent seat on the

Security Council prevented condemnation from the Security Council.96

Nonetheless, the Soviet Union’s reliance on the provisions of Article 51 to justify its

actions demonstrated the inherent weakness of the provision. A nation must decide when to take

an action of self-defense during the darkest hours, and have its actions judged in the full light of

the aftermath. Just as had Israel when it bombed the Osiraq reactor, the Soviet Union determined

what constituted just cause for an action of self-defense. While one was perhaps more earnest

than the other in its beliefs, neither action met the standard of the day. It is this urgency that

95 Id. (emphasis added).

96 G.A. Res. ES-6/2, 6th Emer. Spec. Sess., U.N. G.A. Doc. A/RES/ES-6/2, 1981.



45

makes such decisions far easier to dissect after they are made than during the compressed and

tense time when they are necessarily made.

F. United States Response to Berlin Bombing, 1986

While the International Court of Justice was deciding the validity of the tangential and

indirect actions in Nicaragua v. United States, the United States was directly acting to protect its

own interests against the action of a group of non-state actors, who were sponsored, supported,

trained, and controlled by a state: Libya. This level of control made the terrorists de facto agents

of the Libyan state, in contrast to the contras supported by the United States in their activities

against Nicaragua, who were supported but never controlled or trained by the United States.

The United States’ response to these terrorist actions as embodied in Operation El

Dorado Canyon began to explore fully the bounds of United Nations Charter Article 51 as it

applied to state sponsored terrorism. The United States acted swiftly and decisively to respond

to the bombing of a Berlin discotheque by Libyan terrorists, which killed three people, two of

whom were US Servicemen, and injured more than 200, of whom 60 were US Servicemen.97

97 U.S. Department of State, "U.S. Exercises Right of Self-Defense against Libyan Terrorism,"

Department of State Bulletin, June 1986, pp. 1-2; Ronald Reagan: "Address to the Nation on the

United States Air Strike Against Libya," April 14, 1986.Online by Gerhard Peters and John T.

Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=37131.



46

In a televised address, President Ronald Reagan noted the act was state sponsored,

explaining “[t]he evidence is now conclusive that the terrorist bombing of La Belle discotheque

was planned and executed under the direct orders of the Libyan regime.”98 In a tribute to the

United States Intelligence service, it was noted the intelligence services

…pulled off a spectacular intelligence coup: They began regularly intercepting

messages from Gadhafi's intelligence headquarters in downtown Tripoli. The

exact method was a closely guarded secret, but by one account, they received

and decoded 388 messages. One three-line message sent March 25 to eight of

the Libyan People's Bureaus -- the Libyan equivalent of embassies -- instructed

them to stand by to execute the ‘plan.’

In the early hours of April 5, another intercepted message from East Berlin to

Tripoli reported that an operation was ''happening now'' and would not be

traceable to the Libyans in East Berlin. Within 10 minutes, at 1:49 a.m. Berlin

98 Reagan Says `Conclusive' Proof Tied Libya To Blast: President Says Other Attacks Were

Planned, 1986 WLNR 1692309; See also Obsession With Guarding Reagan Uncovers Libyan

Plot, 1987 WLNR 1744640.



47

time, a bomb detonated at the LaBelle discotheque in West Berlin -- a known

congregation point for off-duty American military personnel.99

In this instance, the terrorist action was clearly imputed to a state. The United States chose not to

declare war, but merely respond in a limited fashion, deeming its response proportional when it

bombed sites in Libya using airpower launched from bases in the United Kingdom.100 The

implications were clear: Terrorist acts by a state can constitute an armed attack as defined by

customary international law and the U.N. Charter, and such acts justify a proportional military

response.101

G. The 1990 Iraqi Invasion of Kuwait

The Iraqi Invasions of Kuwait is best remembered for the international coalition’s actions

under color of U.N. approval and sanction. The invasion of Kuwait by Iraq demanded careful

consideration by the Security Council. The Security Council considered various actions, up to

99 Obsession With Guarding Reagan Uncovers Libyan Plot, 1987 WLNR 1744640.

100 See Christopher J. Greenwood, International Law and the United States' Air Operation

Against Libya, 89 W. Va. L. Rev. 933, 939-45 (1987) (discussing pre-emptive force against

anticipated terrorist attacks).

101 Id.



48

and including the ultimate military operations mounted against Iraq, while first seeking a

peaceful resolution.102

While the Security Council considered options to counter the rogue actions of Saddam

Hussein and Iraq, the United States was carefully considering self –defense options to protect its

interests. The United States had evidence that US citizens were placed in harm’s way through

illegal action by Iraq. 103 Notes Professor Harry Rhea, “[T]he Judge Advocate General (JAG) of

the United States Army began to informally collect evidence that United States citizens were

taken hostage in Kuwait by Iraqi military personnel and forcibly deported to Iraq” as part of a

larger plan to intervene in the region under the color of Article 51 self-defense if necessary.104

Under such a scenario, a response could have been justified on the grounds of self-defense,

102 S.C. Res. 660, U.N. SCOR, 45th Sess., 2963d mtg., U.N. Doc. S/RES/660 (1990).

103 Harry M. Rhea, The United States and International Criminal Tribunals: An Historical

Analysis, 16 ILSA J. Int'l & Comp. L. 19, 28 (2009) (noting that the day following the invasion

of Kuwait by Iraq, Such action would have justified United States action under UN Charter

Article 51, but such justification was unnecessary.

104 Id.



49

though it was more readily and indisputably legitimized by the more conventional means of

United Nations Chapter VII action.105

Ultimately, the United States and allies came to the aid of Kuwait following its invasion

by Iraq following a long and protracted attempt to resolve the crisis through diplomatic means,

punctuated by a dozen Security Council resolutions.106 This choice by the United States, to rely

on Security Council authorization, may have been related to the fallout over earlier United States

actions based on the premise of self-defense in the nations of Grenada (1983),107 Nicaragua

(1982-1986),108 and Panama (1989-1990).109 On 17 January 1991, a massive bombing campaign

by the United States and its coalition allies crippled much of Iraq’s military and its infrastructure.

105 S.C. Res. 678, U.N. SCOR, 45th Sess., 2963d mtg., U.N. Doc. S/RES/678 (1990) (The

Security Council noted Iraq’s failure to comply with resolution 660 and subsequent related

resolutions, and authorized under Article VII the use of all necessary means to restore

international peace and security as well as bring Iraq into compliance with the resolutions.).

106 S.C. Res. 678, U.N. SCOR, 45th Sess., 2963d mtg., U.N. Doc. S/RES/678 (1990).

107 See generally James Ferguson, Grenada: Revolution in Reverse (1990).

108 See generally Robert F. Turner, Nicaragua v. United States: A Look at the Facts (1987).

109 See generally James P. Terry, Law in Support of Policy in Panama, 63 Naval War C. Rev.

110, 110-11, 117 n.2 (1990).



50

Soon afterward, the coalition invaded Kuwait, expelling the Iraqi forces. The coalition then

entered Iraq, driving their enemies before them towards Baghdad.

A interesting and relevant delayed consequence of the 1990-1991 Gulf War was the June

1993 action authorized by President Bill Clinton against Iraq.110 In April 1993, President George

H. W. Bush was invited to Kuwait where he was to be honored for his role in the liberation of

Kuwait from Iraq.111 Unknown to Bush or his security detail, Kuwaiti intelligence forces had

just foiled a complex three-part assassination plot involving 16 persons believed to be acting

under Iraqi guidance and supervision.112 A thorough investigation by the United States

concluded the assassination plot was indeed the work of Iraq.113

110 Raid on Baghdad: U.S. fires missiles at Baghdad, citing April plot to kill Bush, 1993 WLNR

3397276.

111 Bush, on a Visit to Kuwait, Is Given a Hero's Welcome, N.Y. Times, Apr. 15, 1993, at A6.

112 Barton Gellman & Ann Devroy, U.S. Links Iraq to Plot to Assassinate Bush in Kuwait, Wash.

Post, May 8, 1993, at A1; Kuwait Didn't Tell Bush of Death Plot Before Visit, Hous. Chron., July

4, 1993, at A22 (Before the visit, the Kuwaiti government had discovered evidence of an

assassination plot. Kuwait did not inform United States officials or Bush until after he arrived in

Kuwait and the plot was foiled for fear that he would cancel the trip.).

113 James Collins, Striking Back, Time, July 5, 1993, at 20, 21.



51

President Bill Clinton ordered a twenty-six Tomahawk cruise missile strike against the

Iraqi intelligence headquarters in Baghdad, reasoning that an attack on a former president of the

United States, because of the former president’s official actions as the head of state, was itself an

attack on the United States, and would not be tolerated.114 In his address to the nation following

the attack, President Clinton described the plot as “elaborate plan devised by the Iraqi

Government and directed against a former President of the United States because of actions he

took as President. As such, the Iraqi attack against President Bush was an attack against our

country and against all Americans.” 115 Citing Article 51 as the basis for the United States

attack, the United States presented its explanation to the Security Council as required by the U.N.

Charter; there was no condemnation.116 This episode refined the course of the future United

States posture towards terror.

114 William Clinton, Address to the Nation on the Strike on Iraqi Intelligence Headquarters, 29

Weekly Comp. Pres. Doc. 1180, 1181 (June 26 1993).

115 Id.

116 See U.N. SCOR, 48th Sess., 3245th mtg. at 3-9, U.N. Doc. S/PV.3245 (1993) (speech by

Madeleine Albright, U.S. Permanent Representative to the United Nations).



52

H. 1998 Cruise Missile Strikes Against Sudan and Afghanistan

The near simultaneous attacks on the United States’ Embassies in Nairobi, Kenya and

Dar es Salaam, Tanzania brought al-Qaeda to the attention of the world, and prompted a limited

attack by the United States against targets thought to be connected with terrorism. On August 7,

1998, trucks laden with high explosive were detonated outside each of the embassies. In

Nairobi, approximately 4000 persons were wounded, and 212 were killed. In Dar es Salaam, the

casualties were lower, with 11 dead and 85 wounded. These attacks demonstrate a common

feature of acts of terror; the infliction of injury on non-combatants, often totally unrelated to the

conflict. Although the attacks were aimed at Americas, the vast majority of the casualties were

not Americans. Of the over 200 killed, only 11 were Americans.

The Security Council immediately took note of the acts, strongly condemning the actions

and stressing the importance of international cooperation in the struggle to contain international

terrorism.117

These attacks once again led the United States to consider the use of force in self-defense.

On August 20, 1998, President Bill Clinton authorized Operation Infinite Reach in response to

terrorist bombings of U. S. embassy compounds in Kenya and Tanzania without the prior

117 See S.C. Res. 1189, U.N. SCOR, 53rd Sess., 3915th mtg., U.N. Doc. S/RES/1189 (1998).



53

authorization of the UN Security Council.118 Investigations let the United States to believe the

attacks were orchestrated by the Egyptian Islamic Jihad, an organization lead and funded by

Osama bin laden. U.S. Ambassador to the United Nations Bill Richardson informed the Security

Council of the United States action, as is required by the U.N. Charter, reporting the United

States

. . . has obtained convincing information from a variety of reliable sources that

the organization of Usama Bin Ladin is responsible for the devastating

bombings on 7 August 1998 of the United States embassies in Nairobi and Dar

Es Salaam. . .In accordance with Article 51 of the Charter of the United

Nations, I wish, on behalf of my Government, to report that the United States

of America has exercised its right of self-defence in responding to a series of

armed attacks against United States embassies and United States nationals.119

The United States launched 75 cruise missiles into the Islamic Emirate of Afghanistan

targeting four non-state actor (al Qaeda) training sites; the Al-Farouq training camp, the Muawai

118 See Letter from Bill Richardson, Permanent Representative of the United States of America

to the United Nations, to Danilo Turk, President, U.N. Security Council, U.N. Doc S/1998/780

(Aug 20, 1998)

119 Id.



54

training camp (believed to be operated by Pakistan to train militants to fight in Kashmir), the

Jarawah Khost training area, and the Zhawar kili al-Badr camp frequented by Osama bin

Laden.120 The United States did not seek permission from the Taliban government for the action

121

President Clinton recognized that the terrorist forces were non-state actors, but noted that

Afghanistan and Sudan have been warned for years to stop harboring and

supporting these terrorist groups. But countries that persistently host terrorists

have no right to be safe havens.122

In his remarks at Martha's Vineyard, the President justified the operation as follows:

I ordered this action for four reasons: first, because we have convincing

evidence these groups played the key role in the Embassy bombings in Kenya

120 President William Jefferson Clinton, Remarks on Departure for Washington, DC, from

Martha's Vineyard, Mass.: Military Action Against Terrorist Sites in Afg. and Sudan, 2 Pub.

Papers 1460, 1460 (Aug. 20, 1998).

121 Letter from Bill Richardson, supra note 118.

122 President William Jefferson Clinton, Address to the Nation on Military Action Against

Terrorist Sites in Afghanistan and Sudan, 2 Pub. Papers 1460, 1460-1462 (Aug. 20, 1998).



55

and Tanzania; second, because these groups have executed terrorist attacks

against Americans in the past; third, because we have compelling information

that they were planning additional terrorist attacks against our citizens and

others with the inevitable collateral casualties we saw so tragically in Africa;

and fourth, because they are seeking to acquire chemical weapons and other

dangerous weapons.123

President Clinton was convinced that force was necessary in order to prevent an

imminent attack on the United States or its citizens. President Clinton noted there was

“compelling evidence that the bin Laden network of terrorist groups was planning to mount

further attacks against Americans and other freedom-loving people, I decided America must

act.”124 Further, President Clinton stated

But of this I am also sure: The risks from inaction, to America and the world,

would be far greater than action, for that would embolden our enemies, leaving

their ability and their willingness to strike us intact. In this case, we knew

123 Id. at 1460.

124 Id. at 1461.



56

before our attack that these groups already had planned further actions against

us and others.125

Article 51 self-defense and the Caroline principles were cited to justify the attacks.

Ironically, had the Tomahawk missile strikes resulted in the death of Osama bin Laden, the

“planned further actions” and the bloodiest terror attack in modern history may never have

materialized.

IV. SEPTEMBER 11, 2001; SELF-DEFENSE AND MODERN GLOBAL TERRORISM

In 1994, Rosalyn Higgins, , writing prior to her elevation to the international Court of

Justice, where she would ultimately serve as president of the court, echoed not only the spirit of

President Kennedy’s words during the Cuban Missile Crisis but also the practice of nations in the

first half-century of the United Nations Charter Era:

[I]n a nuclear age, common sense cannot require one to interpret an ambiguous

provision in a text in a way that requires a state passively to accept its fate

before it can defend itself. And, even in the face of conventional warfare, this

would also seem the only realistic interpretation of the contemporary right of

self-defence. It is the potentially devastating consequences of prohibiting self-

125 Id. at 1461 (emphasis added).



57

defence unless an armed attack has already occurred that leads one to prefer

this interpretation--although it has to be said that, as a matter of simple

construction of the words alone, another conclusion might be reached. In the

present writer's opinion, this view accords better with State practice and with

the realities of modern military conditions than with the more restrictive

interpretation of Article 51, which would confine the right of self-defense to

cases in which an armed attack had already occurred.126

Joining Higgins in support of the premise of preemptive defense, “Waldock, Fitzmaurice,

Bowett, Schwebel, and Jennings and Watts have all argued that there is a right of anticipatory

self-defense against an imminent armed attack.”127 McDougal, Feliciano, and Sofaer favor broad

126 Rosalyn Higgins, Problems and Process: International Law and How We Use It, 242 (1994)

(emphasis added).

127 Greenwood, supra note 2, at 15 (citations omitted) (noting “Waldock, Schwebel, and

Jennings are all past Presidents of the International Court of Justice; Fitzmaurice was a Judge of

that Court.”); Stephen M. Schwebel, Aggression, Intervention and Self-Defense in Modern

International Law, in Justice in International Law: Selected Writings of Judge Stephen M.

Schwebel 530, 580 (1994).



58

application of preemptive force in self-defense.128 Judge Schwebel notes that the language of

Article 51 is not limiting because it lack conditionality; an armed attack is not the only

circumstance allowing an armed attack.129

Brownlie,130 Gray,131 Henkin,132 and O’Connell133, among others, have argued that there

is no right of self-defense until an armed attack has actually commenced. Dinstein similarly

dismisses the concept of anticipatory self-defense but reasons there is a right of “interceptive

self-defense,” where a State has “committed itself to an armed attack in an ostensibly irrevocable

128 Myres S. McDougal & Florentino P. Feliciano, Law and Minimum World Public Order

(1961); Sofaer, supra note 5.

129 Military and Paramilitary Activities In and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J.

(dissenting opinion of Judge Schwebel P173).

130 Brownlie, supra note 8, at 257-76.

131 Gray, supra note 8.

132 Louis Henkin, How Nations Behave 141-44 (1979)

133 McNab & Matthews, supra note 59, at 669 (2011) (noting that O'Connell argues that States

should treat terrorist acts as mere crimes, and not utilize military force to counter these acts since

they are do not rise to the level an armed attack, so that self-defense under U.N. Charter Article

51 is not an option).



59

way.”134 O’Connell goes as far as to describe preemptive self-defense as a myth, and claims

“[p]reemptive self-defense . . . is clearly unlawful under international law”.135 O’Connell

believes that a state must obtain permission from the United Nations before any preemptive

action; otherwise, there would be a violation of UN Article 2(4) and Article 51.136

Under the minority view’s limited regime (as advocated by O’Connell, Brownlie, Gray, and

Henkin), state action such as that of Israel in rescuing the hostages at Entebbe is a violation of

U.N. Charter Article 2(4) because no nation should use force against another or within another’s

territory. At Entebbe, since Israel was not in the grips of an armed attack, these scholars would

argue Israel could not rely on U.N. Charter Article 51 as the legal basis for a claim of self-

defense. Such a scheme is dangerously close to giving terror free rein based on a technicality.

But terror cannot hide behind technicalities. As Professor Mark Baker notes

The sanctuary state might claim that such action would violate their sovereign

immunity, especially in situations where there is a weak link between the state

and the terrorist group. However, such a claim would carry little weight

134 Greenwood, supra note 2, at 15 (2003) quoting Dinstein, supra note 8, at 182.

135 O'Connell, supra note 8.

136 Id. citing U.N. Charter Articles 2(4) and 51.



60

because it has already been established that a state has a categorical legal

obligation to prevent its territory from being used to support or harbor terrorist

groups.137

Terrorism does not lend itself to simple application of standard law enforcement, nor is it

clearly addressed or anticipated by the UN Charter. Never was this more apparent than in the

aftermath of the terrorist attacks of September 11, 2001. While UN Charter article 2 paragraph 4

was inserted to prevent the aggression of large, powerful nations towards smaller and weaker

states, and article 51 was drafted to afford states the right to act in self-defense against,

ostensibly, other states, perhaps not contemplated was the increasing lethality and transnational

activity of terrorist organizations.

As is well known, on the morning of September 11, 2001, 19 Islamist terrorists boarded

four passenger flights, hijacking the planes to use them as guided missiles against the Twin

Towers of the World Trade Center in New York City and against the pentagon in Arlington,

Virginia. The fourth flight was deliberately crashed in Pennsylvania by the terrorists after

passengers attempted to wrest control of the plane from the terrorists.

137 Mark B. Baker, Terrorism and the Inherent Right of Self-Defense (A Call to Amend Article 51

of the United Nations Charter), 10 Hous. J. Int'l L. 25, 40 (1987).



61

Soon after the attacks, the terrorists were identified138 and the action linked to al Qaeda.139 The

attacks demonstrated the threat posed by modern terrorists. Not only did nearly 3,000 persons

lose their lives, but also the entire world was forced to reevaluate its concepts of self-defense.

Where nations and international organizations had sought to prevent war between states, now

terrorists were shown to have sufficient means to endanger international peace and security.

Notes Professor Bruce Hoffman “[t]he enormity and sheer scale of the simultaneous attacks on

September 11 eclipsed anything previously seen in terrorism.”140 Professor Hoffman goes on to

note the “ambitious scope and dimensions” as well as the ‘impressive coordination and

138 FBI Announces List of 19 Hijackers (September 13, 2001),

http://www.fbi.gov/news/pressrel/press-releases/fbi-announces-list-of-19-hijackers.

139 Dale L. Watson, Testimony Before the Senate Select Committee on Intelligence (February 06,

2002) http://www.fbi.gov/news/testimony/the-terrorist-threat-confronting-the-united-states. Mr.

Watson, the Executive Assistant Director, Counterterrorism/Counterintelligence Division,

Federal Bureau of Investigation, noted the link between al Qaeda, bin Laden and the September

11 terrorist attacks were irrefutable.

140 Bruce Hoffman, Rethinking Terrorism and Counterterrorism Since 9/11, 25 Studies in

Conflict & Terrorism 303 (2002).

http://www.fbi.gov/news/pressrel/press-releases/fbi-announces-list-of-19-hijackers

http://www.fbi.gov/news/testimony/the-terrorist-threat-confronting-the-united-states



62

synchronization” demonstrated in the attacks.141 No longer were terrorists content to play to an

audience with a few casualties: now they wanted large numbers of casualties.142

Soon after the September 11 attacks, the United States struck back, first in Afghanistan,

and later in Iraq. A decade later, and the struggle to control terror continues. A decade of

warfare has yet to counter fully the most effective of terror tactics; mobility and anonymity, both

made possible in part by the ever-increasing availability of technology that can be bent to the use

of terrorists. Recognizing that, unlike in conventional warfare, a struggle against terrorists is

unlikely to have a definable endpoint. For terrorists, “not losing is winning.”143 Counterterrorism

tactics have evolved to mount a new type of proportionate response: the selected targeting of

participants in hostility using drone missile strikes.

While few reasonable persons would shed a tear when the attempted capture of Osama

bin Laden resulted in his death, many took notice when an American citizen, Anwar al-Awlaki,

was terminated by a Hellfire missile launched from a Predator drone. Awlaki was not the first

141 Id. at 304.

142 Id. at 306, quoting Brian M. Jenkins, International Terrorism: A New Mode of Conflict, in

David Carlton and Carlo Schaerf (eds.), International Terrorism and World Security (Croom

Helm, 1975), p. 15.

143 Id. at 311.



63

American to be killed by a remotely piloted aircraft: that distinction goes to Kamal Derwish, a

leader of a Buffalo New York terror cell killed along with the target of a 2002 strike in

Yemen.144 While in Yemen in September, 2011, Awlaki suffered the same fate, though this

time, he was the target, launching an intense debate over the legality of killing an American

outside the scope of a war in the classical sense.145 However, Professor John Yoo believes the

United States is engaged in a war.

Because the United States is at war with al-Qaeda, it can use force--especially

targeted force--to conduct hostilities against the enemy's leaders. This does not

violate any American law-- constitutional, congressional, or presidential--or

any ratified treaty. Precise attacks against individuals have long been a feature

of warfare. These attacks further the goals of the laws of war by eliminating

the enemy and reducing harm to innocent civilians.146

144 John Yoo, Assassination or Targeted Killings After 9/11, 56 N.Y.L. Sch. L. Rev. 57, 58

(2012).

145 Mark Mazzetti, Eric Schmitt & Robert F. Worth, C.I.A. Strike Kills U.S.-Born Militant In A

Car In Yemen, N.Y. Times Oct. 1, 2011, at A1.

146 John Yoo, Assassination or Targeted Killings After 9/11, 56 N.Y.L. Sch. L. Rev. 57, 63

(2012).



64

Because Awlaki was a participant in hostilities, contributing to the planning and

execution of terror activities, he was a legitimate target. Discussing al Awalki’s death, President

Barak Obama stated

Earlier this morning, Anwar al-Awlaki -- a leader of al Qaeda in the Arabian

Peninsula -- was killed in Yemen. The death of Awlaki is a major blow to al

Qaeda's most active operational affiliate. Awlaki was the leader of external

operations for al Qaeda in the Arabian Peninsula. In that role, he took the lead

in planning and directing efforts to murder innocent Americans. He directed

the failed attempt to blow up an airplane on Christmas Day in 2009. He

directed the failed attempt to blow up U.S. cargo planes in 2010. And he

repeatedly called on individuals in the United States and around the globe to

kill innocent men, women and children to advance a murderous agenda.147

147 Barack Obama, Remarks at the Change of Command Ceremony for the Chairman of the

Joint Chiefs of Staff at Fort Myer, Virginia, Daily Comp. Pres. Docs., DCPD-201100695, 1,

(Sept. 30, 2011) (emphasis added).



65

In what may be seen as a statement defining and clarifying the stance of the United States in

dealing with terrorist organizations, President Obama went on to state “[t]his is further proof that

al Qaeda and its affiliates will find no safe haven anywhere in the world.”148

While debate regarding the legality of targeting of an American citizen will fuel many

academic careers, the central premise is clear: the United States intends for those that engage in

terror tactics against the United States to find no safe haven. While efforts to eliminate terrorism

are hoped to always be a cooperative effort between nations, there will always be the occasion

where a nation must venture unbidden into the sovereign territory of another to protect its

citizens from the acts of terrorists. This was the case for Israel in Uganda in 1976149; the case

for the United States in Libya in 1986150; the United States in Afghanistan in 1998151; the United

States in Yemen in 2011152; and of course, Great Britain acting in the United States in 1835.153

148 Id.

149 Dinstein, supra note 8.

150 Greenwood, supra note 100.

151 Clinton, supra note 120, at 1460.

152 Marzetti, Schmitt & Worth, supra note 145.

153 Read, supra note 16.



66

V. SELF-DEFENSE AND THE ONGOING MEXICAN DRUG WAR

In Mexico, government forces are struggling to counter the drug cartels, which have

themselves been waging war amongst themselves. This has long been called the “Mexican Drug

War.” While there may be debate over the origins of the war, and even the propriety of calling it

a war, there is no doubt it has become a bloody conflict, dragging the United States into the

struggle. In 2006, Mexican President Felipe Calderon launched a major campaign against the

cartels.154 Since that time the violence between the cartels themselves and between the Mexican

government and the cartels has steadily escalated, and has spilled over into the United States and

the death toll for drug war related violence continues to rise, reaching over 11,000 in 2010.155

Since 2006, this number approaches 30,000.156

154 Stratfor Global Intelligence, Mexican Drug Cartels: Two Wars and a Look Southward, p. 2

(Dec. 16, 2009), http://web.stratfor.com/images/writers/STRATFORCartelReport2009.pdf.

155 Stratfor Global Intelligence, Mexican Drug Cartels: Bloodiest Year to Date, p. 14 (2010)

http://web.stratfor.com/images/writers/STRATFORCartelReport2010.pdf. (At the time of the

publication of this report there had been 11,041 deaths in Mexico related to organized crime.

This was a significant increase from the reports of just one year earlier, when the death toll was

estimated to be 6,900 to 8,000.)

156 June S. Beittel, Congressional Research Service, Mexico’s Drug Trafficking Organizations:

Source and Scope of the Rising Violence (Jan. 7, 2011) p13.

http://web.stratfor.com/images/writers/STRATFORCartelReport2009.pdf

http://web.stratfor.com/images/writers/STRATFORCartelReport2010.pdf



67

Mexico long relied on its military to combat the drug cartels, as its domestic police force

has long been known to be corrupt. Further, the weapons used by the cartels were more akin to

those of the military than to those of law enforcement.157 Grenade launchers, anti-tank rocket

launchers, sniper rifles and other heavy ordinance are increasingly used by the drug

organizations.158 The drug cartels have even constructed (and used) submarines to ply their

illegal trade.159 Improvised explosive devices (IEDs) are manufactured using readily available

explosives and are used by the drug cartels, though some note the use has been tempered by

restraint.160 The Mexican government continues to rely heavily on its military forces despite

157 See generally Fred Burton and Scott Stewart, Stratfor Global Intelligence Mexico: The Third

War (Feb 18,2009), http://www.stratfor.com/weekly/20090218_mexico_third_war. (Discussing

the lethality of the weapons being deployed by the drug cartels in Mexico.).

158 June S. Beittel, Congressional Research Service, Mexico’s Drug-Related Violence (May 27,

2009) p. 12, citing E. Eduardo Castillo and Michelle Roberts, “AP IMPACT: Mexico’s weapons

cache stymies tracing,” Washington Post, May 7, 2009.

159 United States Joint Forces Command, The Joint Operating Environment 2008: Challenges

and Implications for the Future Joint Force (December 2008) p 34.

160 Stratfor Global Intelligence, Mexico Security Memo: Restrained IED Attacks a Necessary

Tactic For Drug Cartels (Oct. 26, 2011) http://www.stratfor.com/analysis/20111026-mexico-

security-memo-restrained-ied-attacks-necessary-tactic-drug-cartels.

http://www.stratfor.com/weekly/20090218_mexico_third_war

http://www.stratfor.com/analysis/20111026-mexico-security-memo-restrained-ied-attacks-necessary-tactic-drug-cartels

http://www.stratfor.com/analysis/20111026-mexico-security-memo-restrained-ied-attacks-necessary-tactic-drug-cartels



68

attempts to rely conventional law enforcement, as aggressive military campaigns are mounted

against particularly violent cartels.161

The drug war has long spilled over into the United States. This is true in part to the fact

that the United States is the major market for the Mexican drug trade, and organizations vie for

market share using the currency with which they are most familiar: violence. In Ciudad Juarez ,

a leading newspaper identified drug cartels as the ‘de facto authorities” in the city.162 Secretary

of State Hillary Clinton expressed concern that the activities of the cartels could be “morphing

into . . . what we would call an insurgency.”163 The potential for Mexico to become a failed state

has been debated, with President Calderon recognizing that the cartels have used violence to

161 Stratfor Global Intelligence, Mexican Drug Wars Update: Targeting the Most Violent Cartels

(Jul. 21, 2011) http://www.stratfor.com/analysis/20110720-mexican-drug-wars-update-targeting-

most-violent-cartels.

162 See Beittel, supra note 156, at 1.

163 “A Conversation with U.S. Secretary of State Hillary Rodham Clinton,” Council on Foreign

Relations, September 8, 2010. Transcript available at

http://www.cfr.org/publication/22896/conversation_with_us_secretary_of_state_hillary_rodham

_clinton.html.

http://www.stratfor.com/analysis/20110720-mexican-drug-wars-update-targeting-most-violent-cartels

http://www.stratfor.com/analysis/20110720-mexican-drug-wars-update-targeting-most-violent-cartels



69

“attempt to replace the state.”164 The United States has repeatedly declared that it has full

confidence in Mexico as a state, but the United States military prepares for the possibility that

Mexico could fail and destabilize the region.165

Just as troubling is the evolution of the drug cartels from a centralized structure to a

diversified system of localized cells, each acting with increasing independence.166 This parallels

the operations of al Qaeda, which has used this decentralization to increase its ability to survive

changes in leadership such as the deaths of bin Laden and al Awlaki. This similarity to al Qaeda

that requires the United States to reassess its strategy in the Mexican Drug War. Deployment of

the systems, processes, and tools that have met with success in other theaters of operation is

logically transferrable to the United States’ southern border.

164 See Tracy Wilkinson and Ken Ellingwood, “Cartels Thrive Despite Calderon’s Crackdown;

Drug Gangs Have Expanded Their Power and Reach in both Mexico and the United States,” Los

Angeles Times, August 8, 2010.

165 United States Joint Forces Command, The Joint Operating Environment 2008: Challenges

and Implications for the Future Joint Force (December 2008) p 36.

166 Beittel, supra note 156, at 18, citing Luis Astorga and David A. Shirk, Drug Trafficking

Organizations and Counter-Drug Strategies in the U.S.-Mexican Context, Woodrow Wilson

International Center for Scholars Mexico Institute, Working Paper Series on U.S.-Mexico

Security Cooperation, May 2010, p. 25.



70

A 2005 report to Congress noted unmanned aerial vehicles had been successfully tested

along the U.S. – Mexican border with success.167 In 2011, the use of UAVs deep within Mexico

was acknowledged by both the United States and Mexico, with the caveat that the vehicles were

operating under the guidance of Mexico to avoid sovereignty issues.168 Deploying the UAV

technology is a logical step, as the intelligence gathered can provide insight into the operations of

the cartels that will complement that gained by other intelligence sources. Reportedly,

information gathered from a UAV was instrumental in locating several suspects in the murder of

U.S. Immigration and Customs Enforcement Agent Jaime Zapata.169

Despite the escalating violence, and attacks on United States citizens in Mexico as well

as in the United States itself, some claim that to date the violence of the cartels has been

167 Christopher Bolkcom, Congressional Research Service, Homeland Security: Unmanned

Aerial Vehicles and Border Surveillance (February 7, 2005).

168 Ginger Thompson and Mark Mazzetti, U.S. Drones Fight Mexican Drug Trade, N.Y. Times,

Mar. 16, 2011, at A1.

169 Stratfor Global Intelligence, Mexico: U.S. UAVs Gather Cartel Intelligence (Mar. 16, 2011)

http://www.stratfor.com/sitrep/20110316-mexico-us-uav-gather-cartel-intelligence.

http://www.stratfor.com/sitrep/20110316-mexico-us-uav-gather-cartel-intelligence



71

calculated to keep the United States’ role in the conflict somewhat limited.170 On the surface,

this seems far from reality. In July 2011, the U.S. Consulate in Juarez issued a warning that it

might be target by one of the Mexican cartels.171 Soon afterward, narcomantas (banners covered

with messages from a cartel left, often, in the company of decapitated bodies, or found hanging

from bridges alongside victims) appeared threatening agents of the U.S. Drug Enforcement

Agency and employees of the U.S. Consulate in Juarez.172

These threats did not materialize in the way they might have in another theater of

operations, though whether this was due to the arrest of a leader of the cartel making the threats

or because of a strategic decision within the cartels is unknown. This unpredictability makes

determining the imminence of any threat more complicated, requiring consideration not only of

where an attack may occur, where it might occur, and how it might occur, but also if it will or

not; this makes mounting an appropriate response difficult.

170 Scott Stewart, Stratfor Global Intelligence, The Buffer Between Mexican Cartels and the U.S.

Government (Aug. 17, 2011) http://www.stratfor.com/weekly/20110817-buffer-between-

mexican-cartels-and-us-government.

171 Id.

172 Id.

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While, for example, Juarez is incredibly violent, with over 3000 murders in 2010, its twin

on the United States’ side of the Border is remarkably spared.173 Violence in Mexico is

punctuated with decapitations, bodies left hanging from bridges, and seemingly random gunshots

fired into crowds.174 Some speculate that the disparity in the levels of violence on each side of

the southern border is because of the fear of intervention by the United States; fear by both the

cartels, who conduct their business with much more impunity on the southern side of the border

than the northern, and also the Mexican (and other Latin American) governments. Some

speculate that this is why the cartels are less active in the United States and do not openly attack

its embassies, since they certainly have the ability to perform such acts.175

Others believe the specter of the United States’ past acts in Latin America have created

an atmosphere that prevents the cartels from crossing the hypothetical line that, once crossed,

would bring the full fury of the United States upon their illegal operations.176 Because the

United States has been an aggressor in the region before, the relations between Mexico and the

173 Andrew Rice, Life on the Line, N.Y. Times Mag. (July 31, 2011), at MM20.

174 Id.

175 Stewart, supra note 172.

176 Id.



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United States are tempered to avoid the appearance of colonialism. In an effort to maintain

stable collegial relations with Mexico, the United States makes significant efforts to respect

Mexican sovereignty; perhaps more than is required.177

Yet the cartels are not averse to pressing their luck. Journalists, often courted by

terrorists to win favor for their cause, have become increasingly the victims of violence.178 In

Houston, Texas, far from the border, an apparent “hit-squad” killed a government informant in

full view of law enforcement agents.179 In October of 2011, United States authorities announced

they had thwarted a plan to kill the Saudi Arabian ambassador to the United States. What made

this more interesting was the involvement of a Mexican drug cartel; Iranian officials had planned

to retain a cartel (Los Zetas) to assassinate the ambassador, blow up the Israeli embassy in

177 Id.

178 Stratfor Global Intelligence, Above the Tearline: Mexican Cartels and Threats Against

Journalists (Sept. 21, 2011) http://www.stratfor.com/analysis/20110920-above-tearline-mexican-

cartels-and-threat-journalists.

179 Stratfor Global Intelligence, Above the Tearline: Mexican Cartel Violence in Texas (Nov. 30,

2011) http://www.stratfor.com/analysis/20111129-above-tearline-mexican-cartel-violence-texas.

http://www.stratfor.com/analysis/20110920-above-tearline-mexican-cartels-and-threat-journalists

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Washington as well as destroy other embassies in South America.180 This cooperation of the

drug cartels with a government known to support terror activities is particularly troubling. Had

this been successful, the United States certainly could have looked to the principle of self-

defense for the legal justification to take action had Mexico not readily agreed to whatever action

proposed, provided the U.S. response met the Caroline criteria.

Indeed, should the cartels continue to endanger the lives of U.S. citizens, an assassination

attempt against a state figure need not be the catalyst. The cartels, in addition to their drug

trafficking, also exploit illegal immigrants.181 Because the cartels use low-level couriers to

transport their drugs into the United States, they have in place a mechanism to move immigrants.

By combining the trafficking of drugs with the movement of immigrants, the cartels have

expanded their work force, decreased their personal risks, and, since they often charge significant

sums to facilitate the entry into the U.S. of an illegal immigrant, added to their profits.182 This

human rights violation adds to the culpability of the cartels’ membership at all levels. When

180 Charlie Savage and Scott Shane, Iranians Accused of a plot to kill Saudis’ U.S. Envoy, N.Y.

Times (Oct. 12, 2011) at A1.

181 Josh Meyer, Drug Cartels Raise the Stakes on Human Smuggling (Mar 23, 2009) L.A.Times,

http://articles.latimes.com/2009/mar/23/nation/na-human-smuggling23

182 Id.

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considered in light of the other deeds of the cartels, this trafficking in humans may be enough to

tip the balance towards intervention in the future.

It is the nature of such intervention that must be carefully considered. Because of the

underlying distrust of the United States by many Latin American countries, the use of force to

defend United States interests must be carefully weighed on the scale of regional and

international geopolitics. Even so, given advances in technology, enhanced intelligence,

increasingly ruthless drug cartels, and the cartels’ resistance to conventional law enforcement

efforts, it is necessary to consider the targeted killing of the leaders of these cartels. Because

they make operational decisions and participate in the strategic actions of their organizations,

they are valid targets. While decapitating an organization will not eliminate it, this should not

deter the use of this weapon in combating narco-terrorism should the need arise. Citizens in the

areas plagued with the violence of the cartels deserve to be spared more harm. Because of the

danger posed to conventional law enforcement agents by the military grade weaponry of the

cartels, the use of the targeted UAV attack should be considered.

Arguably, it is the duty of Mexico to control their own criminal element, and it is

apparent they are attempting to do so. However, should Mexico lose resolve, or fail to control

this growing trans-national threat, under the United Nations General Assembly Declaration on

Principles of International Law Concerning Friendly Relations and Co-operation Among



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States183 a state “may be held responsible for the acts of terrorist groups if it fails or refuses to

take reasonable steps to control their activities.”184

Any consideration of the use of force should be tempered with the Caroline principles.

The Mexican delegate to the United Nations summed up these requirements eloquently during

discussions in 1965, describing the requirements as follows:

For the use of force in self-defense to be permissible under the Charter, such

force must ... be immediately subsequent to and proportional to the armed

attack to which it was an answer. If excessively delayed or excessively severe

it ceased to be self-defense and became a reprisal which was an action

inconsistent with the purposes of the United Nations.185

183 G.A. Pres. 2625, U.N. GAOR Supp. (No. 18) at 121-24, U.N. Doc. A/8082 [The U.N.G.A.

Declaration on Principles of International Law concerning friendly relations and co-operation

among states in accordance with the Charter of the U.N.] (1970).

184 Baker, supra note 137, at 36.

185 Id. at 33-34 (1987) citing U.N. GAOR/20th Sess., C.6 (886th Mtg.) para. 42 U.N. Doc.

A/C.6/886 (Dec. 1, 1965).



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VI. CAROLINE PRINCIPLES SURVIVE INTO THE 21ST CENTURY

On a wintry night in 1837, a ship would be set adrift and aflame, charting the future

course of preemptive self-defense which would be followed with little change over the next 174

years. While some see the United Nations Charter as limiting these rights, one of the first acts of

the United Nations was to memorialize the Caroline principles for preemptive self-defense when

it commissioned the International Law Commission to formulate the principles of international

law as exercised in the judgment of the Nuremberg Tribunal. In the years following, many

nations have claimed to act in self-defense under the guise of U.N. Charter article 51. Those

actions are often measured against the time honored principles found in the correspondence

between Secretary of State Webster and Minister Lord Ashburton in the Caroline incident;

Necessity, Proportionality, and Imminence.

The definition of each term has changed as technology has evolved. Imminence has

taken on a new context in the nuclear era, and this has not lessened with modern terrorism.

While proportionality remains a measure evaluated by the international community on a case-by-

case basis, today’s defenders face an increasing demand for precise strikes despite the

willingness of non-state actors to place the innocent in harm’s way. Necessity has also changed

to account for technology, particularly for the ready and rapid modes of communication available

to modern states. Diplomatic communications are possible in real-time, hopefully providing a

ready means for peaceful resolution; this is offset by similar capabilities used by those wishing

ill on a peaceful community. Into this mix is added the near continuous news cycle which



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insures any actions are judged by as many hearts and minds as possible, even when those making

such a judgment are ill equipped to render one.

Non-state actors, once significant enough to bring the United States and Great Britain to

the brink of war, receded in international importance for a time. Today, with the growing

lethality and fanaticism of modern terror groups, these players have returned to the world stage

in a substantive role. In this role, terror groups will continue to demand notice, and all too often,

the restrained use of force against them. Just as on that cold night almost two centuries ago,

sometimes these responses will take a nation into the sovereign territory of another that is not a

participant in the hostility. While technology has changed, and ever higher standards of conduct

are applied to nations seeking to defend themselves from groups willing to skirt decency and

legality, only to hide beneath a shield of international law when cornered. While Clausewitz

described a fog of war leading to confusion on the battlefield despite the best-laid plans, modern

non-state actors and terrorists can always shield themselves by exploiting voids within the

stinging smog of terror.186

186 Stephen Sloan, The Changing Nature of Terrorism, in The Terrorism Threat and U.S.

Government Response: Operational and Organizational Factors 51, (James M. Smith &

William C. Thomas eds., 2001).

Self Defense in the new Millennium

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