A response to amos guiora: Reassessing the parameters of use of force in the age of terrorism

Abstract

This commentary examines the "strict-scrutiny" approach to self-defence as proposed by Professor Amos N. Guiora and analyzes whether it provides for a clear guideline as to when states may carry out pre-emptive and anticipatory action against a non-state actor. It reviews the existing concepts of the right of self-defence and pre-emption under international law, with special emphasis on the prevailing debates stemming from contesting interpretations of the related law. In addition, the commentary assesses the relevant decisions in international litigation and state practice to shed light on the application of the conditions for admissible use of force in specific instances of the use of force. In the second part, the commentary critically examines the merits and applicability of Professor Guiora's proposal. It concludes that when there is an international organization (United Nations) which is empowered as a world court, the utility of such domestic mechanism would be limited in terms of providing a legal and moral right to act preventatively. © Oxford University Press 2008; all rights reserved.