Original scientific paper

Aggression, self-defence and anticipatory self-defence

Maja Seršić

Abstract

Prohibition of the use of force is the imperative norm of customary international law, enshrined in the Charter of the UN. The only exception to this rule is the right of individual or collective self-defence, as far as unilateral use of force is concerned, and the use of force upon authorization of the UN Security Council.

The author analyzes legal concepts of self-defence, armed attack (aggression) and anticipatory self-defence. Special attention is paid to the definition of armed attack since the legality of self-defence depends on the existence of an actual armed attack. In addition to the relevant international documents, the author examines the international jurisprudence, practice of the UN organs as well as state practice outside the UN. The legality of the anticipatory (preventive) self-defence is also examined. The author concludes that preventive action is permissible only within the restrictive conditions of the Caroline formula. Any expansion of the right of pre-emptive self-defence beyond this formula, as suggested by the recent American doctrine, is not acceptable, as it would undermine the very prohibition of the use of force.

The broadening of the right of preventive actions has not proved to be the adequate answer to the new threats, such as irresponsible governments in possession of nuclear weapons or international terrorism. The only solution seems to be the recourse to the UN Security Council mandate.

Keywords

aggression; self-defence; anticipatory self-defence; Caroline case; pre-emptive strike

Hrčak ID:

11584

URI

https://hrcak.srce.hr/11584

Publication date:

15.4.2007.

Article data in other languages: croatian german

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