It stands to reason that if you believed that somebody was going to launch an attack against your country, either of a conventional kind or of a terrorist kind, and you had a capacity to stop it and there was no alternative other than to use that capacity, then of course you would have to use it.

- Australian Prime Minister John Howard

Australian John Howard’s recent foreshadowing of the possibility of the use of pre-emptive military strikes against terrorist cells and/or organizations operating in foreign nations is further evidence of a growing shift in state practice regarding the doctrines of “anticipatory self defense” and the use of force in international law. Although it can be said that international jurisprudence is “organic,” in the sense that it partially consists of the actual practice of states, certain precepts and/or principles of international law do not change, irrespective of the actions and/or policies of states. The United States, Israel, and Great Britain are nations that, in several instances, have not found themselves compelled to seek guidance in the United Nations Charter, and have used pre-emptive military action to achieve self-interests. Australia, after its citizens were the purported targets of international terrorism in Bali, is poised and ready to follow the path of pre-emption.

Howard’s admonition was followed by an almost immediate statement of solidarity from the United States: “The president of course supports pre-emptive action… September 11 changed everything, and nations must respond and change their doctrines to face new and different threats. That’s the way of the world, it always has been. And a nation that remains in the status quo after an event like September 11^th can only endanger its own people.”¹ 

The reaction from Islamic South East Asia was one of outrage. The leaders of Indonesia and Malaysia were especially outraged, as they were under the impression that they were the intended “audience” of the remarks.

The Prime Minister’s statements are more than mere words. To classify the Prime Minister’s statements (as Australian Shadow Foreign Minister Kevin Rudd did) as “hairy chested” is naïve. Howard’s admonition may carry fairly significant implications for the stability of Australian/Oceania-South East Asian relations, the global “war on terror,” and - of paramount concern - the possible emergence of a “new” state practice that undermines the Charter of the United Nations, which seemingly (on paper) seeks to eradicate the concepts of unilateralism and pre-emptive military aggression.     

Implications for Australian/Oceania-Islamic relations

The immediate reaction, from the Philippines, Thailand, Malaysia and Indonesia, following the Prime Minister’s statements was certifiable outrage. The foreign minister of the Philippines blasted Howard’s remarks as “quite arrogant,” and Malaysian Foreign Minister Syed Hamid Albar stated: “I think Australia must think they are a big power. They are talking the language of a big power.”²

Howard’s statements have created increased tension in an almost politically untenable relationship between Australia and Islamic South East Asia since the tragedy in Bali. His statements are widely perceived as a threat to the sovereign integrity of South East Asia, which has been classified as a hotbed of Islamic terrorism.

A consequence that may result could be the complication of anti-terror efforts in the region, and joint Australian/South East Asian anti-terror working relations. Indonesia for example, post-Bali, worked swiftly to implement anti-terror laws and to apprehend those responsible for the attacks that claimed almost one hundred Australians. A primary reason for Indonesian apprehension in applying such laws at any earlier stage was the impact those laws would have on civil rights and liberties in a nation which had been under the grip of Suharto. Australian threats of pre-emptive attacks will create a further diplomatic and political rift between Australia and South East Asia.

Implications for the “War on Terror”

Prime Minister Howard’s carefully and politically crafted admonition had an overall political and diplomatic objective: formally enlisting the aid and assistance of the United States in fighting its own leg of the “war on terror.” The United States, pursuant to its own interests of gaining a foothold in the region and to its obligations pursuant to the ANZUS (Australia, New Zealand, and the United States) treaty, will likely provide Australia with further military and logistical support, if and when Australia acts. The ANZUS treaty was an agreement reached between Australia, New Zealand and the United States (New Zealand has since unofficially withdrawn from its obligations) that imposes obligations on the parties to protect and defend the other parties in times of war or the threat of war.

Immediately following the attacks of September 11, Prime Minister John Howard invoked the obligations of ANZUS: “The Governments of Australia and the United States have concluded that Article IV of their mutual defense treaty applies to the terrorist attacks on the United States.”³ Article IV of ANZUS states that: “Each Party recognizes that an armed attack in the Pacific Area on any of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional processes.” It may be only a matter of time until the United States formally invokes Article IV to solidify its commitment to assist Australia with its “war on terror.” If and when Australia engages in a pre-emptive strike, it will not be without the military and/or logistical support of the United States, the reasons being that Australia lacks the military and logistical capabilities, and because the United States has a strong need for a strategic military and intelligence presence in the region.

The Emerging Crisis of State Practice: “Anticipatory Self Defense” vs. the United Nations Charter

Article 51 of the United Nations Charter establishes:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence 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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

The language is clear and unambiguous: measures of self-defense are legitimate if “an armed attack occurs” against a member of the United Nations. The United States, Great Britain and Israel have often applied the “cumulative events” theory to the definition of armed attack to justify measures of self-help.

The “cumulation of events theory” holds that: “a series of attacks should be viewed as a whole, so action taken to prevent future attacks in the series can be seen not as anticipatory self defence but as self defence against one attack that continues to occur.”⁴ This approach has been widely criticized and disparaged, and the definitions of “armed attack” and self-defense were narrowly tailored in the opinion of the International Court of Justice in the Nicaragua case. The Judgment of the Court held that an “armed attack” must be understood as “including not merely action by regular armed forces across an international border, but also the ‘sending by or on behalf of a State of armed bands, groups, irregulars, or mercenaries, which carry out acts of armed force against another State of such gravity to amount to’ (inter alia) an actual armed attack conducted by regular armed forces, ‘or its substantial involvement therein’.”⁵ The opinion clearly rejects the “cumulation of events” theory to define an armed attack.

Since the “war on terror” has commenced, it appears that the United States, Great Britain, Israel, and now Australia have disposed of earlier attempts to work and posture within Article 51 and within the definition of an “armed attack.” The Bush Administration’s “National Security Strategy” signifies this movement. In part, the Plan states:

For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat—most often a visible mobilization of armies, navies, and air forces preparing to attack… The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction— and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively.

The White House response quoted above affirms this earlier statement of policy. With John Howard’s comments, the United States has consolidated a key alliance in the global “war on terror.” If and when Australia pursues pre-emptive military action, it will likely be bilateral, with direct military and logistical support from the United States.

The White House statement immediately following the Prime Minister’s seems to be an attempt to make a case for pre-emption as an emerging “new,” or reborn, principle of customary international law, because of the practices of states. The Bush administration is, in essence, arguing that “anticipatory self defense” is now becoming (or at least should be) a rule of customary international law, because a small group of states are practicing it. In order to constitute a rule of customary international law: “Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it”.⁶ The country invoking, or threatening to invoke, anticipatory self-defense must prove that the rule “invoked by it is in accordance with a constant and uniform usage by States.”⁷

The Bush administration and Prime Minister Howard have painted the picture that pre-emptive or anticipatory self-defense is a legitimate tool to be employed by nations in fighting the threat of international terrorism. “Anticipatory self defense,” however, is not customary international law in the modern global community. The United Nations Charter “pre-empts” the doctrine of anticipatory self-defense and pre-emption. Professor Kelsen, in his seminal work The Law of the United Nations (1950), has stated that the right of self-defense: “has no other content than the one determined by Article 51.” Professor Henkin has further asserted:

Nothing… in its drafting… suggests that the framers of the Charter intended something broader than the language implied… It was that mild, old fashioned Second World War which persuaded all nations that for the future national interests will have to be vindicated, or necessary change achieved, as well as can be by political means, but not by war and military self help. They recognised the exception of self-defence in emergency, but limited to actual armed attack, which is clear, unambiguous, subject to proof, and not easily open to misinterpretation or fabrication… It is precisely in the age of the major deterrent that nations should not be encouraged to strike first under pretext of prevention or pre-emption.⁸ [Italics added]

Australia’s foray into pre-emption may indicate the beginnings of a possible emergence of “new” state practice in the direction of accepting the doctrine of “anticipatory self defense” to address concerns of international terrorism. To be sure, international law, like law itself, does not remain in stasis; it is capable of evolving. However, at present and for the foreseeable future, this is not occurring, as the great majority of states opposes the use of pre-emption and “anticipatory self defense,” and defers to the United Nations Charter. No scholar or diplomat can argue with any seriousness that there exists the consensus of states or the acknowledgement of obligation necessary to classify the use of “anticipatory self defense” as a modern rule of customary international law.

Nonetheless, Australia’s purported course of action may create a slippery slope and encourage other nations to do “whatever is necessary” to ensure national security, without limiting themselves to what is required by the United Nations Charter. The threat of international terrorism has certainly changed the landscape of the “battlefield” of combat, and nations must respond accordingly. However, nations must respond within the scope of the laws of nations, as encapsulated within the Charter of the United Nations. In a period of international terrorism, global unity and multi-lateralism are essential in achieving peace. Pre-emptive military action does not foster provident global relations, especially when it is the true brokers of global power who engage in it.

Thomas J. Haidon is an American attorney and activist residing in Wellington, New Zealand. He received a Jurisdoctorate (J.D.) with a certificate of international law from the University at Buffalo School of Law and a Bachelor of Arts in Political Science from Niagara University. He has studied at the American University in Cairo and Birzeit University, Palestine. He is currently pursuing an L.L.M. in international law. You can reach him at thaidon@justice.com

1- “Bush Backs Howard on Pre-emptive Strikes” The Age, December 3, 2002.

2- “Howard outrages South East Asian Nations” The People’s Daily, December 3, 2002.

3- “US-Australia Treaty Applies to Terrorist Attacks”. US Department of State, September 14, 2001.

4- Harris, D.J. Cases and materials on international law. Fifth Edition. (London: Sweet & Maxwell, 1998) p. 898.

5- Nicaragua Case Merits. Nicaragua v. United States. I.C.J. Reports 1986, p.14 para. 195.

6- North Sea Continental Shelf Cases. Federal Republic of Germany v. Denmark; Federal Republic of Germany v. The Netherlands, I.C.J. Reports 1969, p. 18

7- Asylum Case. Colombia v. Peru I.C.J. Reports 1950, p.266

8- Henkin, Louis. How Nations Behave (2^nd ed., 1979) pp. 141-142.

The articles posted on this page reflect solely the opinions of the authors. Views Archive Advanced Search Views & Analyses

Related Links

• Australia’s September 11^th: The Future of Australian-Islamic South Asian Relations

• The Bush Doctrine: A Lesson in the Arrogance of Power

• Iraq’s Right of Self-Defense and Preemption: An Apology

• How Indonesian Observers View the Bali Mystery