War Preemptive and International Law Steven C. Welsh Dec. 5, 2003 The Bush National Security Strategy has prompted continuing discussion over the legal and policy implications of preemptive military action and its impact on the future of the global security system. This backgrounder examines some of the international legal standards and related policy considerations forming the context of that debate. A strategy of addressing an emerging threat with a range of options including force was envisioned by the UN Charter. While traditional international law emphasized respect for state sovereignty by placing greater restrictions on the use of force, the literal language of the UN Charter has a more liberal standard when force is used under the auspices of the Security Council. For cases where force is used outside of the Security Council framework, it is not definitively clear whether under the UN Charter a state retains a traditional right of self-defense, including a right of anticipatory self-defense against an imminent threat, or if that right is curtailed to not include anticipatory self-defense. Some commentators argue that the UN Charter itself is no longer a valid source of international law, in which case a right of anticipatory self-defense would exist regardless and traditionally be limited to cases in which there is a threat of imminent attack. Given the UN Charter's authorization of preemptive acts by the Security Council, ultimately the real division over preemption is not necessarily over preemption itself but over the multilateral framework under which it is carried out, who holds decision-making authority, and the extent to which those arrangements are codified and therefore rendered more stable and predictable. If the original concept of the Security Council was that the ad hoc coalition which won World War II would remain intact to stamp out future Hitlers before they reached a critical level of strength, historical changes such as the Cold War may have altered the course of that plan. The right and obligation of a governing authority to use force to defend its citizens against an aggressor predates by centuries modern nation-states and modern international law. Christian just war theory, upon which the modern laws of armed conflict are based, recognized such a duty as early as the 4th Century. Since their emergence in the 16th Century, modern nation-states have been believed to hold such a right. While aggression is traditionally considered unlawful, and self-defense lawful, more problematic is the question of whether a first-strike could ever be considered a defensive act rather than an act of aggression. The right of anticipatory self-defense assumes that an aggressor is poised to strike, and that one acts defensively in anticipation of the attack rather than waiting for the attack to occur. Traditionally, it was deemed theoretically possible that even a first-strike could be deemed defensive in nature, and lawful, if it was to forestall an attack that was imminent. The most widely accepted modern standard for anticipatory self-defense was articulated by U.S. Secretary of State Daniel Webster in diplomatic correspondence with his British counterpart over the Caroline incident (often mischaracterized as the Caroline "case") and
consisted of two prongs. One was that the need to use force in anticipatory self-defense must first rise to the level of being a necessity, and one that is instant, overwhelming, and leaving no choice of means and no moment for deliberation. The other requirement was that the action taken must be proportionate to the threat and not be excessive. Debate continues over the impact of the UN Charter on this area of international law. The UN Charter has a general prohibition against the use of force, but authorizes the Security Council to use force even in the absence of an act of aggression by the target, and permits unilateral and non-UN multilateral acts of self-defense under certain constraints. With respect to the Security Council, the literal language of the UN Charter, in Articles 39, 41, and 42, envisions the use of a range of options, such as economic sanctions and varying degrees of force (e.g., blockades as well as all-out war) in response to acts of aggression, breaches of the peace, and threats to the peace. As a result, under the Charter force may be used against even a mere threat when authorized by the Security Council. For unilateral acts and the multilateral use of force outside of the UN framework, Article 51 of the UN Charter refers to an inherent right of self-defense against armed attack, permitting defensive actions until the Security Council addresses the matter, and requires that such a defensive use of force be reported to the Security Council. The literal language of Article 51 seems to roll back the traditional right of self-defense, requiring that an armed attack have occurred before self-defense can be exercised, and implying that unilateral self-defense is an interim measure until the Security Council addresses the situation. Some commentators argue, however, that by referring to an "inherent" right of self-defense the UN Charter simply retains pre-existing international law regarding selfdefense, including anticipatory self-defense. While it is not necessarily clear what role he plays in the matter, it appears that Secretary General Koffi Annan might hold the latter view, referring to states "retain[ing]" the inherent right of self-defense under the Charter. To the extent the UN Charter can be deemed a relevant source of international law then some right of self-defense remains, which very well may include a right of anticipatory self-defense. At the same time, in international law, if a consistent pattern of state practice demonstrates a departure from preexisting norms, it can be argued that international law has changed. Some commentators suggest that state practice has indicated that with respect to the use of force the UN Charter no longer is a part of international law. If that is the case, then presumably international law would revert to the standard of anticipatory self-defense articulated by Webster. The bottom line, then, is that with respect to anticipatory force exercised without Security Council authorization, either the UN Charter is essentially defunct with respect to the laws of armed conflict and the Webster standard continues, or the UN Charter is not defunct but retains the Webster standard, or that the Webster standard is displaced by a stricter standard requiring an armed attack to have occurred before one may invoke a right of self-defense. The prevailing view probably is that, one way or another, anticipatory self-defense is permissible but traditionally has required the existence of an imminent threat.
Another aspect of the UN framework, emphasized during the Cuban missile crisis, is that the UN Charter does permit regional security arrangements as long as they are consistent with the purposes and principles of the United Nations. However, the literal language of Article 53 requires that enforcement actions taken under regional arrangements not be initiated without Security Council authorization. With respect to preemption, the National Security Strategy (NSS) issued by U.S. President George W. Bush itself does not necessarily significantly challenge prevailing international law. It rests upon a standard doctrine of anticipatory self-defense, and explores the question of when an attack is imminent. On its face it does not seek to overturn the rule, but to explore how the rule and its underlying purpose could be applied in particular situations not existing in the past. One could argue that the rule does not actually require an attack to be imminent to act, but rather permits defensive measures to be taken before one passes a point in time when it is too late to prevent catastrophe. The NSS focuses on several major considerations, one being that the imminence of a terrorist attack is much harder to detect, another being the fact that innocents are often targeted, and the third being the devastating impact of weapons of mass destruction (WMD.) While the text in the NSS relating to preemption does not necessarily limit its scope to WMD, it comes in a section dedicated to WMD. Some commentators have suggested that WMD, and WMD proliferation, might be carved out as a special category under anticipatory self-defense. They argue that the right implied by anticipatory self-defense to act against a threat before it is "too late" may require setting a threshold in the context of WMD at some earlier point in the proliferation process, with that earlier point serving as the equivalent of the imminence of a threat. Such a point, it is argued, could represent the presence of a danger justifying a "defensive" first-strike, perhaps when accompanied by other factors such as a history of aggression, ties to terrorism, or certain criminal activities by the target regime. Even if an exception were limited to WMD, or rogue state WMD, however, there still would remain the problem of setting a new and potentially destabilizing precedent, with the U.S. preemption policy serving as a basis for other countries initiating or threatening conflicts they might not otherwise have been emboldened to undertake. Concerns over precedent highlight the fact that international law does in fact mean something, and serves more than simply a cosmetic role providing a rhetorical backdrop for actions taken for entirely different reasons. Whether in a local domestic context or the international arena, law and security go hand-in-hand to the extent that assumptions about reliable rules limit and guide conduct, if only by making more predictable its consequences. Countries do seem to care about what kind of reaction a particular course of conduct will bring. In two major wars, Korea and Gulf War I, the United States in hindsight was accused of having overlooked hints by the aggressors of their intentions, failing to respond strongly enough to the hints. International law can help serve to warn
state actors what other states would think of particular courses of action, by clearly articulating norms of conduct and by drawing up more clearly defined parameters for joint action in response to unlawful or otherwise dangerous situations. The Bush administration therefore faces an important challenge to articulate its own policies clearly and carefully, determine the extent to which the United States is willing to help contribute to the establishment of clear international norms, and explain whether and in what manner an international framework for decision-making will be honored. Concerns expressed by allies over the shaping of preemption do not necessarily evidence an unwillingness to adapt shared understandings of law and security to changing circumstances. Rather, they reflect a fundamental appreciation for the prospect of a stable, effective and sustainable global security system in which the sole superpower ideally provides leadership that is clearly articulated, predictable, reasonable and promotes respect for the law. The National Security Strategy calls for accurate, honest, and timely threat-assessments and coordination with allies, wisdom reinforced by the Iraq war. One of the biggest lessons from the Iraq conflict might not center around what to call it (i.e., preemption or something else) but rather the weaknesses inherent in relying on potentially flawed intelligence and the difficulties that could be posed in the future if a U.S. administration once again seeks to convince the citizenry and the world community to trust undisclosed information, or disclosed allegations resting on similar intelligence-gathering. Another lesson is that even the United States needs help dealing with a large and complicated problem, whether it is before, during, or after a conflict addressing what the Bush administration deems a grave and gathering threat. In the past, Bush has been somewhat reserved with respect to his own presentation of a preemption doctrine, and his decision to lead a multilateral coalition Saddam against Hussein was presented with a tapestry of arguments among which were references to Security Council resolutions, the ongoing situation since the previous Gulf War, Saddam's ties to terrorists, and humanitarian concerns. Secretary of State Colin Powell also has adopted a multifaceted and internationalist approach, and recently articulated a view of preemption that was closely akin to traditional anticipatory self-defense, referring to taking action when "see[ing] a danger coming at you ." Vice President Dick Cheney until recently adopted a more aggressive posture reminiscent of a Cold War ideology -- us good, them bad -- and the United States needing an unfettered capacity to take action anywhere at any time. Publicly, Cheneys focus seems to have shifted away from open support for preemption to the engagement of terrorists in an ongoing series of hostilities, the need to appraise the future of the system of global security, and the importance of democracy. Important questions that must be answered include whether the world is safer with or without a strengthening of international law and carefully crafted international institutions restricting the use of force, and whether the United States is willing to provide the leadership it has demonstrated in the past in these areas.
At the same time, an examination of the global system of sovereign states might not be complete without a consideration of the rightful purpose of sovereignty itself, taken together with the more broad-based views of security expressed by the National Security Strategy, and Bush's decision to draw greater attention to the need to create a safer and more just world by promoting freedom and democracy. Sovereignty was never appropriately meant to sanctify the frontiers of tyrants and prevent outside intervention against their crimes, but truly is meant to serve the cause of peace. The theoretical basis for having nation-states in the first place was the idea that power would be concentrated in the hands of the sovereign, rather than private armies, local warlords, and armed bands, and that sovereigns themselves would be limited with respect to the instances in which they would attack each other, with the overall effect of reducing the incidence of war and violence and thereby protecting innocent lives. (see e.g., Cusimano Love, "09.11.01: Globalization, Ethics, and the War on Terrorism," Notre Dame Journal of Ethics & Public Policy, Vol. 16, 2002, pp. 65-80). This system has been challenged by the nexus of modern technology with the reemergence of warlords and private armies, but it also has been challenged wherever sovereignty rests on oppression rather than democratic legitimacy. Security and the diverse realities impacting it encompass a growing range of concerns. The National Security Strategy with its consideration of the importance of development and trade relationships, the president's renewed focus on democratization, and an appraisal of the forces of globalization and the connection between terrorism and poverty all point to a new direction in security that is not simply based on force but most definitely is based on prevention. The key, however, will be to not simply be preventive, but to be proactive. To not simply put out fires and react to events, but to invest in human potential and human freedom, to promote respect for human life and the dignity of the human person, and to sign on for the long haul to create a world that is more free, more just, and therefore decidedly more secure. Addendum Since the drafting of this article, President George W. Bush delivered his London address of Nov. 19, 2003, in which he refrained from openly rearticulating a policy of preemption but did, in his second "pillar," voice the need for free nations to be willing as a last resort to use force to restrain "aggression and evil." While force employed in response to "aggression" could fall into the category of defense against an actual attack, using force to restrain "evil" seems a somewhat more nebulous concept, and Bush did not elaborate as to timing and circumstance. By referring to "free nations" in the plural, Bush did seem to continue a theme of multilateral action. Efforts at multilateralism would be consistent with his first pillar, the need for international organizations to be effective at meeting today's challenges, with effectiveness measured by results and not just procedure. Bush recognized that global problems such as terrorism do require a global response. He pointed to the need for the United Nations to adequately address threats while also citing an American commitment
to NATO, the need for security cooperation between the United States and the European Union, his multilateral approach to North Korea, and the importance of the International Atomic Energy Agency adequately addressing concerns over Iranian nuclear technology. The question of "where to go from here" would seem to center around working to build greater effectiveness for international institutions and frameworks for multilateral action, but the third pillar, the president's call for democratization, especially in the Middle East, also is noteworthy. The United States appears to be expressing contrition for past policies of building ties with regimes of less than stellar democratic credentials, and even more importantly to be focusing on policy directions which are not simply preemptive or preventive, but actually proactive. Just as at the conclusion of World War II the United States learned from the mistakes of the Treaty of Versailles, it appears that the United States once again is endeavoring to learn from past mistakes by focusing on longer-term goals, addressing the sources of instability and aggression, and aspiring to unite values with practical action by investing in human potential and cultivating the foundations of true peace. As Pope John Paul II cautioned in Coventry in 1982, peace is more than just the absence of war, and must be built thoughtfully and patiently over time. A sincere and farsighted approach to that principle, grounded in freedom, justice, and the rule of law, would appear to be the rightful mission of a United States that assumes a position of global partnership with other free nations. Sources and Additional Reading: Bruce Ackerman, "But What's the Legal Case for Preemption?" Washington Post, Aug. 18, 2002, republished at http://www.law.yale.edu/outside/html/Public_Affairs/282/ yls_article.htm. U.N. Secretary-General Kofi Annan, Address to the General Assembly, Sept. 23, 2003, http://www.un.org/webcast/ga/58/statements/sg2eng030923.htm. Anthony Clark Arend, "International Law and the Preemptive Use of Military Force," The Washington Quarterly, Spring 2003, pp. 89-103, http://www.cfr.org/pdf/highlight/03spring_arend.pdf. Anthony Clark Arend, "Anticipatory Self-Defense and International Law," American Society of International Law Briefing (live presentation), Washington, D.C., Aug. 2, 2002, http://www.asil.org/briefing.htm#selfdefense. President George W. Bush, "President Bush Discusses Iraq Policy at Whitehall Palace in London: Remarks by the President at Whitehall Palace, Royal Banqueting Hous...