Reconceptualising the right of self-defence against ‘imminent’ armed attacks

Abstract

A state’s right to act in self-defence against ‘imminent’ armed attacks remains an unsettled question of international law. Yet, states persist in justifying military actions on this basis. Absent a common definition of imminence, assessing the legality of these operations is practically impossible. Although imminence is traditionally understood as referring solely to the temporal proximity of an armed attack, for some this approach is insufficient. This article examines scholarship and examples of state practice that indicate that imminence may be viewed as comprising several contextual indicators that determine whether states may have recourse to self-defence. This conception of imminence raises fears of an expansive right of self-defence. Yet, this author concludes that such ‘contextual imminence’ stands as a proxy for jus ad bellum necessity. This conflation is perhaps unfortunate, but an orthodoxy regarding all forms of self-defence is thereby maintained, subject to the enduring legacy of the Caroline formula.