Preemptive Legitimate Defense: the Legitimacy of Resorting to Force or Frequent Breach of the United Nations Charter (Text in Persian

Subject Areas :

Mohammad Javad Zarif ¹ ( استاد و عضو هیأت علمی دانشکده روابط بین الملل وزارت امورخارجه ([e-mail]) )
Mohammad Ahani Amineh ² ( دانشجوی دکتری روابط بین الملل دانشگاه آزاد اسلامی واحد علوم و تحقیقات اصفهان )

Received: 2012-09-10 Accepted : 2012-11-09 Published : 2012-01-01

Keywords: Terrorism, preemptive legitimate defense, article 51 of the United Nations’ Charter, preventive invasion, broad interpretation of article 51,

Abstract :

After the Second World War and formulation of the United Nations’ Charter, the main founding principle of international security for the post war period was laid and that was prohibition of the use of force in international relations. The founder of the United Nations’ Charter taking into consideration the experience of the League of Nations in which the governments within certain conditions had the right to resort to force, this time strictly prohibited the use of force in international relations and considered it illegal and illegitimate. Nevertheless, for this rigid and inflexible rule there were two exceptions viz collective security derived from chapter seven of the United Nations Charter and referring to right of self-defense or legitimate defense based on Article 51 of the United Nations Charter. Except these two exceptions any resort to force in international relations was prohibited and considered illegal. In question of the criteria of implementing collective security there was not serious debate. But after 11 September events the question of preemptive legitimate defense was brought about from theoretical Pandora box of American leaders and on that basis the United States strategy of countering terrorism formed. On the basis of this concept which had its origin in customary international law; despite of the clear emphasis which the United Nations Charter put on occurrence of military aggression for referring to the principle of legitimate defense, stated that there was no need for military aggression and mere existence of direct and immediate threat which have the sign of imminent aggression from enemy, allows the governments to attack the threating center and eliminate the source of threat. The present article wants to examine whether such a preemptive strategy of the United States is having legal legitimacy based on the United Nations’ Charter or it is an action to justify and legitimize the application of force in international relations? Therefore, the articles by looking into different legal and political aspect of this rule, examines the legitimacy or lack of legitimacy of the United States measures.