There has been an extraordinary misinterpretation and overreaction to
the Prime Minister’s answer to a journalist’s legitimate question last
The Prime Minister said that in certain, very limited circumstances he
would be prepared to launch military action in another country to
forestall an attack on Australia.
This has been widely and wrongly interpreted as some sort of ambit
claim to a right to make pre-emptive attacks on other states. This is not
The Prime Minister’s answer – not a statement as some described it
– was hedged in with restrictions entirely consistent with international
Now international lawyers are divided on the issue of pre-emptive
strikes but states have regularly claimed such a right.
The Netherlands declared war in 1941 before Japan had actually invaded
the then Dutch East Indies. Israel justified her attack on Egypt in June
1967 because Egypt denied Israel’s right to exist, and threatened her
with annihilation. Moreover, Egypt had closed the Straits of Tiran and
demanded the withdrawal of the UN force supervising the ceasefire line.
Israel felt she was entitled to pre-empt a likely attack. A more
questionable use of the doctrine – at least according to a unanimous
Security Council – was when Israel destroyed an Iraqi nuclear reactor
then under construction in 1981. With the benefit of hindsight, some
governments probably now approve of Israel’s action. Then in 1985,
Israel bombed PLO headquarters in Tunisia, arguing that terrorists were
harboured there with Tunisian complicity.
On one view the UN Charter provisions about the use of force may well
have lost any legal force. This is because they have been so long and so
often ignored they have slipped into desuetude. While this is a minority
view, it is fair to say that international law does allow glosses on the
text of even the UN Charter.
These can result from widespread patterns of behaviour by states,
provided they believe their actions are in accordance with international
law. For example, it may well be that the use of force in a genuinely
humanitarian intervention is now lawful even without UN involvement.
The difficulty is that international law has no single identifiable
legislature. The UN General Assembly is no parliament. Nor is there any
institution similar to our High Court which can give authoritative and
binding interpretations of the law.
But assuming the Charter still accurately states the law on the use of
force, the text itself allows exemptions on the general restriction of
One allows the Security Council to use force to keep the peace. In
addition, states retain an "inherent" right to individual or
collective self-defence. This preserves the rule that a state does not
have to wait until the bombs fall. It may anticipate that right, which is
different from a pre-emptive strike. The rules were spelt out as long ago
as 1837 in a dispute between Great Britain and the United States involving
a vessel, The Caroline. This right is available if it can be shown that
the "necessity for self-defence is instant, overwhelming and leaving
no choice of means and no moment of deliberation."
An example would have been if in 1941 the US had bombed the Japanese
fleet on its way to Pearl Harbour because it had convincing intelligence
of Japan’s intentions.
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