Study On Preventive Self-defense In International Counter-terrorism

International terrorism has become one of the greatest threats to peace and security in today's world,bringing endless suffering and fretfulness to mankind.Under the global wave of counter-terrorism,the power of international terrorism has not yet been controlled comprehensively.Facing the ravages of international terrorists,how to effectively prevent and punish international terrorist acts and forcefully safeguard the security of the country and its people has become a realistic and urgent task for all states.After the “9·11” incident,as the United States,Russia and some other countries took unilateral armed actions against international terrorism,the theory and practice of preventive self-defense gradually entered the international counter-terrorism field.People's evaluations of preventive self-defense are mixed.On the one hand,it has been praised for its ability to stop the imminent terrorist attacks in time.On the other hand,it has been widely criticized for its high risk of abuse.Therefore,the use of preventive self-defense in international counter-terrorism has become one of the most controversial issues in international law.International terrorism is both a serious challenge to international peace and security and an arbitrary violation of human fundamental rights and freedoms.Confronting fierce and cruel international terrorists,the response measures of the international community are embarrassed,and the pure punishment mode after the event is not enough to powerfully protect the nation and the people's safety.In view of this,the legitimacy and legality of preventive self-defense in international counter-terrorism needs to be re-examined and re-identified.Preventive self-defense in international counter-terrorism is an act that is the first use of force against the threat of urgent terrorist attacks by international terrorists.Under the current international counter-terrorism background,preventive self-defense in international counter-terrorism has obvious necessity.The transient and devastating characteristics of terrorist attacks make it become a real need for international counter-terrorism,it can not only make up for the deficiencies of the legal punishment afterwards,but also fetch up for the limitations of international counter-terrorism cooperation,and it can also recuperate the limitations of national self-defense and the authorized use of force by the Security Council.Thus it is an effective beforehand defense measure.State terrorism acts and terrorism crimes of international terrorist organizations are its targets of exercise.As far as legal legitimacy is concerned,preventive self-defense in international counter-terrorism is both justified in legal theory and legal economics.From the perspective of jurisprudence,preventive self-defense in international counter-terrorism can guarantee the security of the country and the people to the greatest extent by timely stopping the imminent terrorist attacks,it can forcefully prevent international terrorists from trampling on individual and collective human rights,and can potently curb the deliberate destruction of social order by terrorists,so it is in line with the law's security value,human rights value and order value.Simultaneously,it is also in accordance with justice value of the law: for one thing,preventive self-defense in international counter-terrorism reducing the importance of equality in order to ensure the safety of the majority of people is in conformity with states' rational choice,because in the extreme circumstances that security and equality cannot be balanced,innate psychological characteristics or a dominant cultural atmosphere could make people more inclined to safety between them;for another,the public interests protected by the preventive self-defense in international counter-terrorism are greater than the personal interests it harms,it conforms to the principle of proportionality in the measurement of interests,and it is a reasonable choice after the state weighs the public interests and personal interests.At the same time,from the perspective of legal economics,the expected legal benefits of the preventive self-defense in international counter-terrorism are bigger than the expected legal costs,that is to say,the benefits it brings are greater than the damages caused by it,and thus it has economic rationality and accord to efficiency value of the law.In terms of legality,international customary law provides legality basis for preventive self-defense in international counter-terrorism.First of all,national practices on preventive self-defense could demonstrate the legality of it in modern international law.The “Caroline” incident in 1837,the Afghan war in 2001,and French bombing of the “Islamic State” in Syria in 2015 were all national practices related to preventive self-defense,and all received wide support and approval from the international community.Secondly,international organization resolutions on preventive self-defense could confirm the legality of it.Judging from the Security Council resolutions that made for Israel armed forces attacked Arab countries such as Egypt in 1967,Israel secretly attacked Iraq's nuclear reaction facility in 1981 and the U.S.air struck Libya in 1986,preventive self-defense was universally recognized by the international community at the time,and related actions were denied just because they did not conform the exercise conditions of preventive self-defense right.Then,judicial precedents on preventive self-defense could evidence its legal existence.In 1946,the Tokyo Military Court clearly admitted that the Netherlands declared war on Japan was exercising the right of preventive self-defense;in the same year,the Nuremberg Military Court repudiated that Germany's military offensive against Norway was legal preventive self-defense on the grounds that its military action did not comply with the exercise conditions of preventive self-defense right,and reiterated the exercise conditions of it.Finally,the doctrine of international law jurists on preventive self-defense also could prove that it was approbated by the international community.The well-known jurists such as Cicero,Grotius,and Vettel all believed that preventive self-defense is legal,and the High-level Panel of Eminent Persons on United Nations Reform,Oppenheim,McDougall,and some Chinese international jurists also considered that states had the right to take preventive self-defense actions in the face of urgent armed attack threat.Although for various reasons,the international community has not yet formed general practices on preventive self-defense,according to instant international customary law theory,as long as the international community forms clear and consistent common legal concept of preventive self-defense,it can constitute the international customary law.However,considering the overall development direction of international law that restricts the unilateral use of force by the nations,it is necessary to strictly limit the scope of application of preventive self-defense.The author deems that preventive self-defense in international counter-terrorism should be allowed as a legal exception under the premise of general prohibition of preventive self-defense.In order to prevent preventive self-defense in international counter-terrorism abused by states,it is necessary to impose strict restriction factors on it,and to control its scope of exercise within the necessary minimum.There are the essential elements for the exercise of preventive self-defense in international counter-terrorism: the threat of international terrorist attack should constitute the “armed attack” threat,the threat of terrorist attack is real and urgent,and state's self-defense action should accord with the standard of proportionality;simultaneously,timely reporting to the Security Council is a procedural requirement for the exercise of it.In addition,state's preventive self-defense action against terrorist crimes committed by international terrorist organizations should also be approved by the host country.Generally speaking,the legal exercise of preventive self-defense in international counter-terrorism should conform the above-mentioned substantive and procedural requirements.Although the self-defense country violating procedural element does not necessarily lead to its self-defense action illegal,the legality of self-defense action will be questioned by the international community.It is even possible to become prima facie evidence of self-defense action violation international law.In reality,the cases of states abuse the preventive self-defense exist objectively.However,since preventive self-defense lacks a complete legal liability system,it is difficult for the injured country to pursue the legal responsibility of countries and individuals that abuse preventive self-defense,and thus the acts abuse preventive self-defense is also difficult to contain effectively.To establish an accountability system for the abuse of preventive self-defense,the “necessity” and “proportionality” can be used as the criterion for the Security Council to judge whether the state's armed counter-terrorism behavior constitutes the abuse of preventive self-defense and investigates the international legal responsibility of the country and its responsible persons that abuse it.The main form of state responsibility for the state abuse it is to stop the illegal act and compensate for the loss,but if the state refuses to take responsibility,it will face economic,political or military sanctions from the Security Council.If an individual representing the country abuse it constitutes an international crime,the individual's international criminal responsibility can be pursued through the International Criminal Court.Furthermore,in order to prevent the permanent members of the Security Council from using the veto right to evade legal responsibility,the international community can exclude the parties' veto right through United Nations reform such as use the “passive abstention” approach,thus make all countries and individuals abuse preventive self-defense are punished as they should bear.