1 Introduction

1.1 Anticipatory Action in Self-Defence: A Controversial Concept

1.2 The Temporal Controversy of the Right of Self-Defence

1.3 Structure and Methods of Research

1.3.1 Explanation of Central Terms

1.3.2 Methods of Research

1.3.3 Pre-Charter Customary Law (Part Ⅰ)

1.3.4 Post-Charter Customary Law (Part Ⅱ)

1.3.5 Rationale of Part Ⅲ

1.3.6 Tracing the Evolution of Customary Law

1.4 Notes on Terminology

1.5 Disclaimers

1.6 Contribution

References

Part Ⅰ Pre-Charter Customary Law on Self-Defence

2 Self-Defence in Ancient and Medieval Natural-Law

2.1 War in Ancient Greece and Rome

2.2 Early Christian Views on War and Self-Defence

2.3 Medieval Christian Views on War and Self-Defence

2.4 Christian Legalist Views on War and Self-Defence

2.4.1 Probabilistic Arguments and the First Rejections of the Just War Theory

2.4.2 Spanish Scholastics and their View on Self-Defence

2.4.3 Protestant Legalist Views on War: Gentili and Grotius

2.4.4 Self-Defence: As Seen by Gentili and by Grotius

2.5 The Christian Normative Framework and Self-Defence

References

3 Self-Defence as a Measure Short of War

3.1 The Rise of Positive Law

3.1.1 The Departure from the Christian Concept of Natural Law

3.1.2 Positive Law and War in Due Form

3.1.3 'Perfect' Wars

3.1.4 'Imperfect' Wars

3.2 War as an Instrument of Policy

3.2.1 Positive Law and War as a Legal Institution

3.2.2 State Practice and 'Measures Short of War'

3.3 The Positivist Normative Framework and Self-Defence

References

4 Self-Defence as an Exception to the Prohibition of War

4.1 Pacifist Trends of the Late Nineteenth and Early Twentieth Centuries

4.2 War in the Regulatory System of the Covenant of the League of Nations

4.3 Self-Defence in the League System

4.4 The Kellogg-Briand Pact and the Right of Self-Defence

4.5 State Practice in the 1930s and the Collapse of the League of Nations

4.5.1 The Invasion of Manchuria by Japan (1931-1932)

4.5.2 The Italian Invasion of Ethiopia (1935-1936)

4.6 Operation Catapult (1940)

4.7 The Emerging International Legal Framework and Self-Defence

References

5 The Right of Self-Defence and the Drafting of the UN Charter

5.1 Preliminaries and the Dumbarton Oaks Proposals

5.2 The Drafting of the UN Charter at the San Francisco Conference

5.2.1 Proposals Ahead of the Conference

5.2.2 The Plenary Discussions of the San Francisco Conference

5.2.3 The Work of Technical Committee 4 (Committee III/4)

5.3 The Final Provision on Self-Defence: Interpretation

5.4 Concluding Remarks

References

6 The Temporal Dimension of Self-Defence at the Time of the Charter

6.1 Forms and Content of Self-Defence in the Three Identified Frameworks

6.2 The Temporal Dimension of the Narrow Concept of Self-Defence

6.3 The Temporal Dimension of Preventive Wars

6.4 Limits of the Narrow Concept of Self-Defence

6.4.1 Necessity

6.4.2 Proportionality

6.5 The Status and Limits of Anticipatory Action in Self-Defence

References

Part Ⅱ Post-Charter Customary Law on Self-Defence

7 The Right of Self-Defence in the Judgments of the Nuremberg and Tokyo Tribunals

7.1 Introduction

7.2 The 'Major War Criminals' Trial' (Nuremberg, 1945-1946)

7.3 Self-Defence and the 'Major War Criminals' Trial'

7.4 The Trial and Judgment of the Japanese War Criminals (1946-1948)

7.5 Self-Defence as Interpreted by the Tokyo Tribunal

7.6 Self-Defence in the Nuremberg and Tokyo Judgments

References

8 Self-Defence in State-to-State Conflicts

8.1 Introduction

8.2 The Anticipatory Dimension of Self-Defence

8.2.1 The Sinai Campaign (1956)

8.2.2 The Six-Day War (1967)

8.2.3 The 'Yom Kippur War' (1973)

8.3 The Remedial Dimension of Self-Defence

8.3.1 The Iran-Iraq War (1980-1988)

8.3.2 The Falklands War (1982)

8.4 Self-Defence Claims with Anticipatory and Remedial Dimensions

8.4.1 The UK Bombing of a Yemeni Fort (1964)

8.4.2 The Gulf of Tonkin Incident (1964)

8.4.3 US Bombing of Libya (1986)

8.4.4 US Missile Attack Against Iraqi Intelligence Headquarters (1993)

8.4.5 The South Ossetia War (2008)

8.5 Concluding Remarks

References

9 Self-Defence and Weapons of Mass Destruction

9.1 Introduction

9.2 The Cuban Missile Crisis (1962)

9.3 The Israeli Bombing of the Iraqi Reactor (1981)

9.4 The Nuclear Weapons Advisory Opinion (1996)

9.5 The War Against Iraq (2003)

9.5.1 The 2003 Iraqi War: Setting the Context

9.5.2 The 2003 Iraqi War: Disarmament and Security Council Resolutions

9.5.3 The 2003 Iraqi War: Self-Defence Against WMD.

9.5.4 The 2003 Iraqi War: The Requirement of Necessity

9.5.5 Proportionality

9.6 Concluding Remarks

References

10 Self-Defence Against Non-State Actors

10.1 Introduction

10.2 Israel and Arab Militants

10.3 State Practice in the 1960s-1980s

10.4 Terrorist Attacks in the 1990s

10.4.1 The Kenya and Tanzania Bombings

10.5 Terrorist Attacks of the New Millennium

10.5.1 The Attack on the USS Cole (2000)

10.5.2 The Attacks of 9/11 (2001)

10.5.3 The War Against Iraq (2003)

10.5.4 Israeli Invasion of Lebanon (2006)

10.5.5 Turkish Incursion into Northern Iraq (2007-2008)

10.5.6 The Gaza Crisis (2008-2009)

10.6 Concluding Remarks

References

11 The Interpretation of Self-Defence and the United Nations

11.1 The General Assembly of the United Nations

11.2 The Work of the International Law Commission

11.2.1 Self-Defence and 'General International Law'

11.2.2 Armed Action Against Private Groups as 'State of Necessity'

11.2.3 'Preventive' Self-Defence

11.2.4 Necessity and Proportionality

11.3 The Findings of the 2004 UN High-Level Panel

11.4 The Work of the International Court of Justice

11.4.1 The Conditionality of an Armed Attack

11.4.2 Immediacy

11.4.3 Proportionality

11.4.4 The Customary Basis of Self-Defence

11.5 Concluding Remarks

References

12 The Temporal Dimension of Post-Charter Self-Defence

12.1 Temporal Dimension of Self-Defence in State-to-State Conflicts

12.2 Temporal Dimension of Self-Defence in Conflicts Involving WMD

12.3 Temporal Dimension of Self-Defence in Conflicts Involving Non-State Actors

12.4 Concluding Remarks

References

Part Ⅲ Anticipatory Action in Self-Defence and International Customary Law

13 The Legality of Anticipatory Action in Self-Defence

13.1 Findings of Part I

13.2 Findings of Part II

13.3 The Legality of Anticipatory Action in Self-Defence in International Law

References

14 The Limits of Anticipatory Action in Self-Defence

14.1 Findings of Part I

14.2 Findings of Part II

14.3 Parameters of Analysis

14.4 Standard-Type Armed Attacks

14.4.1 Necessity: Conditionality of an Armed Attack and Immediacy

14.4.2 Proportionality

14.5 Hit-and-Run Tactics and the Limits of Self-Defence

14.5.1 Necessity: Collective Conditionality of Attacks and Immediacy

14.5.2 Proportionality

14.6 Demonstrating the Fulfilment of the Conditions of Necessity and Proportionality

14.7 Conclusions as to the Limits of Anticipatory Action in Self-Defence

14.8 Self-Defence: What It Is and What It Is Not

References

Bibliography

Table of Documents

Table of Cases

Index