Document Type : Original Independent Original Article
Highlights
Introduction
If a military attack happens, military and political leaders of countries may quickly mobilize civilians and utilize non-military buildings to achieve their military goals. International humanitarian law seeks to support non-military targets based on the distinction law. This support is reflected in multiple international documents, which are known to the doctrine of all countries. Considering the events in international wars, such as the Second World War, we can conclude that countries with an advanced military force do not hesitate to kill civilians and violate the distinction law. The September 11 attacks introduced the preemptive defense to the military doctrine of western countries, mainly the United States. The mentioned concept presents a different procedure for legitimate defense, which is stated in article 51 of the United Nations Charter. Based on preemptive defense, simply detecting an imminent threat justifies the use of force against it. Western countries have used this concept and mobilized their military forces to different parts of the world. They have always justified their military actions by labeling them as the war on terror, like the war on Afghanistan (2001), or the war on rogue states, like the Iraq war (2003). The main question is to what extent is resorting to preemptive defense acceptable in international law. The secondary question is also defined as what measures the legal and military leaders should take when resorting to preemptive defense. Our main hypothesis is that although preemptive defense is more legally justifiable than its more extreme version, called the preventive defense, but it is not acceptable in international law. Also, our secondary hypothesis is that resorting to preemptive defense against imminent threats to protect civilians is rational when the threatening party does not hesitate to execute their threats, but from a legal standpoint, resorting to preemptive defense against threats is considered an illegal act against the illegal act of the threatening party.
Methodology
The method of research is descriptive-analytical. The authors first discuss the high probability of violating the distinction law by the countries with advanced military force and then call for practical measures against imminent threats that put civilians’ lives at risk. Then the legal and military obstacles in resorting to preemptive defense against terrorists or the states which threaten civilians are considered.
Results and Discussion
Considering the previous violations of the distinction law by some countries, such as the US and Israel, the statements of the leaders of countries with advanced military force about threatening to attack civilians, such as Donald Trump’s speech in 2017, and the refusal of great military powers, including India and Pakistan, to ratify the Additional Protocol (I) to the Geneva Conventions, it can be assumed that in case a military attack happens, the mentioned countries hardly conform to the distinction law because multitudes of countries prioritize their political and economic interests over international peace and security. Considering the decline in the retirement of nuclear weapons and an increased modernization of these weapons by nuclear countries, it is wise to monitor any military mobilization and suspicious threats on civilians. So, it is necessary to review the legitimacy of resorting to preemptive defense, because resorting to this strategy seems rational, not for confronting terrorism or rogue states, but for using it against countries who have invented the preemptive defense, abused it, have violated the distinction law, explicitly threatened the civilians, and considering their past actions, carrying out their threats is likely. While the Security Council’s expediency in protecting the interests of its permanent members is evident, preemptive defense to counter crimes against humanity is the reason for this research. Therefore, it is necessary to consider this new military strategy in international law and examine the legal and military obstacles of resorting to it.
Conclusion
The term “preemptive defense” has been common in the past century. However, examples of resorting to force, such as the Peloponnesian war and the battle of Copenhagen, are similar to the principles of this strategy. None of the instances of resorting to preemptive defense by states have been explicitly accepted in international law. The Security Council has mostly condemned these occurrences of resorting to force, or in cases where the Security Council has not been able to condemn such actions, the country resorting to preemptive defense has been highly criticized and has paid a high price in international politics. Although resorting to such a strategy to protect civilians seems rational, it acts only as a temporary remedy and sometimes has considerable consequences. There is no mention of preemptive defense in the United Nations Charter. Also, we have not found any instance of resorting to this military strategy approved in international law. Furthermore, by analyzing article 39 of the Charter, we can conclude that preemptive defense is only a privilege of the Security Council. Arbitrarily employing it is a clear violation of articles 2, 39, 42, and 51 of the Charter. Except for the cases where imminent threats on civilians, mobilizing military weapons, or similar actions which reveal the seriousness of threat are regarded as hostile acts according to article 39 of the Charter and Article 3 of the Resolution 3314, and the threatened country is permitted to resort to force by the Security Council, defending preemptively to counter imminent attacks on civilians is a confrontation of two illegal acts. It is less likely that preemptive defense is accepted in international law until the international society reaches a consensus on different matters, such as the difference between the imminent threat and imminent attack, threat tools, the number of threatened civilians, indications of the seriousness of the threat, and Security Council’s position.
