CRANFIELD UNIVERSITY DAREN BOWYER JUST WAR DOCTRINE

action before any blow is actually struck. Michael Walzer argues that ‘(b)oth
individuals and states can rightfully defend themselves against violence that is imminent
but not actual; they can fire the first shots if they know themselves about to be attacked.
This is a right recognized in domestic law and also in the legalist paradigm for
international society.’ 187 There must, however, be restrictions and in the realm of
international law the most usually-cited are those emanating from the Caroline Case.
This resulted from the British attack, in December 1837, on the US-owned steamer, the
Caroline, which was being used to supply rebels in Canada across the Niagara River.
British forces boarded the Caroline, killing two of the crew, set the ship afire and sent
her over Niagara Falls. The US protested and it is Secretary of State Daniel Webster’s
articulation of the justification required for acts of anticipatory self defence that have
become convention: ‘while it is admitted that exceptions growing out of the great law of
self-defence do exist, those exceptions should be confined to cases in which the
necessity of that self-defence is instant, overwhelming, and leaving no choice of means,
and no moment for deliberation.’ 188 (Emphasis added).
The judgement of the ICJ in Nicaragua vs the US, already touched upon in Chapter 2,
(see p89 et seq) would seem to reinforce the restrictions set out by Webster, placing
emphasis not only on proportionality but also on necessity (‘no choice of means and no
moment of deliberation’). 189 Again, international reaction to the Israeli attack on Iraq’s
developing nuclear reactor at Osirak reaffirmed a very restrictive understanding of any
right to pre-emptive self defence. In June 1981 Israeli aircraft attacked the reactor, close
to Baghdad. Israel claimed that she was acting defensively as the reactor could give rise
to an Iraqi nuclear weapons capability that would be an unacceptable threat to Israel’s
security, given Saddam Hussein’s overt hostility. 190 Condemnation in the UN Security
Council was unanimous. 191 Remarkably, and uncharacteristically, even the US voted
for the condemnatory resolution rather than merely abstaining or, as she often had on
resolutions critical of Israel, using the veto. Members of the Security Council clearly
felt that neither necessity nor immediacy could be argued since the plant was far from
being operational and Iraq had proved herself compliant with the conditions of the
Nuclear Non-Proliferation Treaty (which Israel had not). Byers judges the opinio juris
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