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The Past and Future of the Claim of Preemptive Self-Defense

Published online by Cambridge University Press:  27 February 2017

W. Michael Reisman  and
Andrea Armstrong
Andrea Armstrong
Affiliation:
Yale Law School
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Extract

The claim by the United States to a right of what has come to be known as “preemptive selfdefense” has provoked deep anxiety and soul-searching among the members of the college of international lawyers. Some have feared that the claim signaled a demand for the prospective legitimation of “Pearl Harbor” types of actions, that is, sudden, massive, and destructive military actions “out of the blue,” by one state against another in the absence of a state of war, with the objective of militarily neutralizing or even eliminating a latent or potential adversary. Since some public intellectuals within the American political system had recommended such a strategy with respect to the People’s Republic of China in the midst of the Cold War, the anxiety could not be dismissed as entirely unfounded or even hysterical. Nor could it be ignored as if it were some sort of exclusively American aberration that could be tolerated as the idiosyncrasy of one state. From the earliest unilateral claims to a continental shelf, a copycat or mimetic dynamic in modern international law has taken shape whenever an enhancement of state power has become available, so that the possibility of similar claims to an expanded notion of preemptive self-defense by many other states could not be excluded. Indeed, while the United States may now have retreated somewhat from its 2002 broad claim to preemption, various other states (including some with nuclear weapons) have adopted the preemptive self-defense claim as their own. If the U.S. claim posed potentially destabilizing consequences for world order, how much more so would proliferation of the claim?

Type
Centennial Essays
Information
American Journal of International Law , Volume 100 , Issue 3 , July 2006 , pp. 525 - 550
Copyright
Copyright © American Society of International Law 2006

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References

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5 The discourse has used different terms to describe this claim throughout the debate on the legality of the use of force. For an interesting discussion, see Yoram Dinstein, War, Aggression, And Self–Defence (4th ed. 2005).

6 The inherent difficulty of such exercises is apparent in Taft and Buchwald’s contention that the U.S. invasion of Iraq in 2003 was a lawful use of preemptive military self–defense. William, H. Taft IV & Todd, F. Buchwald, Preemption, Iraq, and International Law, 97 AJIL 557 (2003)Google Scholar.

7 The authors disagree with some scholarly characterizations of the U.S. blockade of Cuba during the 1962 Cuban missile crisis as preemptive self–defense. The claim to preemptive self–defense, at its core, is an asserted legal right to use offensive military force against a target that does not yet, but may in the future, pose a threat. Although the blockade could be characterized as preemptive action or as a measure of self–defense, it is not preemptive self–defense. See Ruth, Wedgwood, The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self–Defense, 97 AJIL 576, 584–85(2003)Google Scholar.

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32 Id.

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36 A More Secure World, supra note 34, at 54–55, paras. 189, 191.

37 Thomas Franck argued in this Journal as early as 1970 that Article 51 was of little use in distinguishing between claims of self–defense and aggression. Thomas, M. Franck, Who Killed Article 2(4)? 64 AJIL 809, 818 (1970)Google Scholar.

38 Military and Paramilitary Activities in and Against Nicaragua (Nicar.v. U.S.), Merits, 1986 ICJ Rep. 14,103—04, para. 195 (June 27) (citation omitted (quoting Definition of Aggression, GA Res. 3314 (XXIX), annex)) [hereinafter Nicaragua].

39 Oil Platforms (Iran v. U.S.), Merits, 2003 ICJ Rep. 161, paras. 57, 61, 64, 71–72 (Nov. 6).

40 Id., para. 51 (citations omitted (quoting Nicaragua at 101, para. 191, & 103, para. 195)).

41 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 139 (Int’l Ct. Justice July 9, 2004), 43 ILM 1009 (2004) [hereinafter Wall Opinion].

42 Congo v. Uganda, supra note 4, para. 109.

43 Id., para. 119 (citation omitted).

44 Id., para. 143 (citation omitted (quoting Nicaragua at 103, para. 194)).

45 Id., para. 146.

46 Id.

47 Id., para. 147.

48 See generally Michael Reisman, W., Assessing Claims to Revise the Laws of War, 97 AJIL 82 (2003)Google Scholar; Michael Reisman, W., Private Armies in a Global War System, 14 Va. J. Int’l L. 1 (1973)Google Scholar.

49 Nicaragua at 103–04, paras. 194–95; Wall Opinion, supra note 41, para. 139.

50 Congo v. Uganda, supra note 4, Separate Opinion of Judge Kooijmans, para. 26 (citation omitted (quoting Nicaragua at 103, para. 195)).

51 Wall Opinion, supra note 41, para. 35.

52 Congo v. Uganda, supra note 4, Separate Opinion of Judge Kooijmans, para. 28.

53 Congo v. Uganda, supra note 4, Separate Opinion of Judge Simma, para. 11.

54 See infra pt. VI, “Non–U.S. Coalition Partners.”

55 SC Res. 487 (June 19, 1981), 20 ILM 993 (1981).

56 The Security Council did, however, approve a resolution implicitly endorsing the U.S. occupation by authorizing a “multinational force under unified command” to provide security in Iraq. SC Res. 1511 (Oct. 16, 2003), 43 ILM 254 (2004).

57 See, e.g., Elizabeth, Neuffer, After Discord, UN’s Effectiveness Called into Question, Boston Globe, Mar. 18, 2003 Google Scholar, at A29, available in Westlaw, All News Combined. But as Ruth Wedgwood notes, the Security Council later passed Resolution 1483 (May 22, 2003), providing political cover for states to engage in the reconstruction of Iraq. Wedgwood, supra note 7, at 582.

58 SC Res. 1368 (Sept. 12, 2001), 40 ILM 1277 (2001).

59 The Security Council may yet moderate extended claims to preemptive self–defense, according to one scholar. José, E. Alvarez, Hegemonic International Law Revisited, 97 AJIL 873, 888 (2003)Google Scholar.

60 While the authors focus on government statements of policy, a question worth noting (but beyond the scope of this essay) is whether states have realigned their actual military policies to adhere more closely to their polices, or whether the government statements examined here are more aspirational in nature.

61 Robert, Hill, Minister for defence, John Bray Memorial Oration, University of Adelaide (Nov. 28, 2002)Google Scholar, available at <http://www.minister.defence.gov.au/HillSpeechtpl.cfm?CurrentId=2121>.

62 Australia, Ministry of Defence, National Security: A Defence Update 2003 Google Scholar, at 16, available at <http://www.defence.gov.au/ans2003/Report.pdf>.

63 Royal Australian Air Force, Military Operations Index: Strike Google Scholar (n.d.), available at <http://www.defence.gov.au/raaf/organisation/infoon/operations/strike.htm>.

64 John, Howard, Australian prime minister, Press Conference, Parliament House (June 20, 2002)Google Scholar, available at <http://www.pm.gov.au/News/interviews/2002/interview1709.htm>.

65 Bob, Burton, Australia: Premier Stands Firm on ‘Anti–Terror’ Strikes, IPS–Inter Press Serv., Dec. 2, 2002 Google Scholar (quoting Prime Minister John Howard, TV interview, Dec. 1, 2002), available in Lexis, Wire Service Stories; transcript of interview with Laurie Oaks available at <http://www.pm.gov.au/news/interviews/2002/interview2015.htm>.

66 Teresa, Cerojano, Philippine VP Defends Outcry over Australia, AAP Newsfeed, Dec. 5, 2002 Google Scholar, available in Lexis, Aap Newsfeed.

67 John, Howard, Australian prime minister, Interview with Metro TV (Indonesia) (Oct. 19, 2004)Google Scholar, available at <http://www.pm.gov.au/news/interviews/Interviewll30.html>.

68 Japan Defense Agency, Overview of Japan’s Defense Policy (May 2005)Google Scholar, available at <http://www.jda.go.jp/e/publications/overview/english.pdf>.

69 Tetsushi, Kajimoto, Constitution Paces Long Road to Amendment, Japan Times, May 3, 2005 Google Scholar, available in Lexis, Major World Newspapers.

70 Japan Defense Agency, Defense of Japan White Paper (summary), §4 (2002)Google Scholar, available at <http://www.jda.go.jp/e/pab/wp2002/0304.htm>.

71 Upper House Begins Debating Military Contingency Bills, Japan Econ. Newswire, May 19, 2003 Google Scholar, available in Lexis, Wire Service Stories.

72 Government Outlines New View on Self–Defense, Daily Yomiuri (Tokyo), Jan. 26, 2004 Google Scholar, at 1, available in Lexis, Major World Newspapers.

73 Martin, Fackler, Japan Finds Still Sterner Words for North Korea’s Missile Tests, N.Y. Times, July 11, 2006, at A4Google Scholar.

74 See, e.g., Japan’s Security Bills Dangerous for Region, China Daily, June 9, 2003 Google Scholar, available in Lexis, Major World Newspapers; North Korea Denounces Japan’s Moves for “Oversas Expansion,”BBC Int’l Rep.,June5, 2003, available in Lexis, Individual Publications.

75 Tony, Blair, Prime Minister Warns of Continuing Global Terror Threat, Mar. 5, 2004 Google Scholar, available at <http://www.pm.gov.uk/output/Page5461.asp>.

76 Select Committee on Foreign Affairs, House of Commons, International Law and The War Against Terrorism, Seventh Report, para. 420 (July 21, 2004), available at <http://www.publications.parliament.uk/pa/cm200304/cmselect/cmfaff/441/44120.htm>.

77 Select Committee on Foreign Affairs, House of Commons, Disarming Iraq, Second Report, para. 159 (Dec. 17, 2002), available at <http://www.publications.parliament.uk/pa/cm200203/cmselect/cmfaff7l96/19609.htm#n210> (footnotes omitted).

78 Uk Ministry of Defence, The Strategic Defence Review: A New Chapter, para. 9 (July 2002)Google Scholar, at <http://www.mod.uk/defenceinternet/home> [hereinafter New Chapter]. In a progress report on the new chapter, Minister of Defence Geoffrey Hoon stated: “all our analysis shows that tackling the problem at distance—whether through prevention or, where justified, pre–emption, or through use of other effects in the framework we have developed—is much preferable to waiting for problems to come to us.” Geoffrey, Hoon, The New Chapter to the Strategic Defence Review: A Progress Report, Speech to City Forum Roundtable (May 23, 2002)Google Scholar (on file with authors).

79 New Chapter, supra note 78, para. 77. A strategy of attacking problems abroad before they manifest themselves on British soil is also a prominent theme in discussions on restructuring the military. In April 2002, the veterans minister stated:

The Ministry of Defence is therefore currently conducting work to re–examine our own defence posture to ensure that we have the right defence concepts, forces and capabilities to defeat the threat from international terrorism. … … … But the initial findings are that we need to put more emphasis on taking the initiative and, where possible and justifiable, to pre–empt problems rather than simply wait for problems to come to us.

Opening Address by Dr. Lewis Moonie MP, minister for veterans affairs, to Veteran Plenary Forum (Apr. 17, 2002) (on file with authors).

80 In a letter to the House of Commons, the Defence Ministry summarized key discussion points of a 2002 seminar, stating: “Pre–emptive action—and particularly a series of pre–emptive actions—is likely to create serious difficulties for coalition cohesion. We cannot be dogmatic in pursuing pre–emptive action: a case by case analysis will be required before any action is undertaken.” Select Committee on Defence, House of Commons, Appendices to the Minutes of Evidence, App. 10, Letter from Ministry of Defence to Committee Specialist Summarising Key Points of Birmingham Seminar 28 February 2002 (May 7,2003), available at <http://www.publications.parliament.uk/pa/cm200203/cmselect/cmdfence/93/93apll.htm> (seminar discussed new chapter).

81 Id., App. 1, Letter to the Committee Specialist from the Ministry of Defence (May 17, 2002), available at <http://www.publications.parliament.uk/pa7cm200203/cmselect/cmdfence/93/93ap02.htm>.

[House of Commons] The New Chapter consultation paper uses terms such as prevent, deter, coerce, disrupt and destroy—does this mean that a pre–emptive role [of] the UK forces is at the heart of the New Chapter in the war on terrorism? Can the UK actually do any of these things alone and if not how far is our understanding of this problem shared by likely allies or collaborators?

[Administration Response] . . . We will set out more developed thinking when we publish some conclusions. But the UN, NATO, the EU and other organisations have all played key roles in recent months, and we see them all playing key roles in future. We continue to regard it as vital for the US and its European Allies to be able to operate together (as many Allies are doing now in Afghanistan), and for the Europeans to make improvements in their capabilities to facilitate that. We fully recognise that, in the future as in the past, effective coalition operations will normally be the key to success, and that we therefore needed a shared approach, shared doctrine and interoperable capabilities. We have been continuing to work to those ends.

We have already indicated that we need to put more emphasis on being proactive and, where possible and justifiable, pre–empting problems, rather than simply waiting for problems to come to us. In that, we should use the whole range of responses that the Government has at its disposal—not just military means.

See also International Law and the War Against Terrorism, supra note 76, para. 404. The report relates that the foreign secretary appeared before the committee on March 30, 2004, and “underlined the Government’s advocacy of reform of the system of international law.” The committee asked “how the Government might respond to evidence of an imminent threat by terrorists with access to WMD, but when there was little certainty as to the target.” The minister responded as follows:

If it was that imminent and country X perceived that the threat could apply to them, then I think that they would be justified in acting in self–defence and there is nothing in Article 51 which could prevent that. If it was a wider, more general threat, then although there might not be the time nor might it be desirable to have a public debate, there would almost certainly be time secretly to consult [the five permanent members of the Security Council] partners who are crucial to any decision and if they were on board, in practice the Security Council would be.

82 Dick, C. J., The Future of Conflict—Looking Out To 2020, at 22, 36 Google Scholar (Conflict Studies Research Centre, Defense Academy, No. M30, Apr. 2003), available at <http://www.da.mod.uk/CSRC/documents/Special/M30–CJD.pdf/fileview>. The report notes:

Deterring intra–state conflict, including by pre–emptive deployments, is theoretically attractive and may become fashionable but will be fraught with problems. . . .

. . . Despite the lessons of the wars of Yugoslav succession and, arguably, the long–term threat posed by Saddam’s missiles and WMD, it will be very difficult to convince many electorates that such action will be cheaper in the long run. Pre–emptive actions may also be morally and legally dubious and therefore politically divisive, both domestically and internationally (including between allies). President Bush’s strident demands for war to disarm Iraq and more controversially, to effect regime change is a case in point.

. . . .

. . . One way or another, the USA will leave itself open to charges of hypocrisy, selectivity and bully–boy behaviour, not to mention the deliberate flouting of international law through mounting dubious pre–emptive attacks.

83 New Chapter, supra note 78, para. 22.

84 The Select Committee on Defence asked the secretary of state for defence the following question:

[House of Commons] Are you saying then that if there were a second Resolution of the United Nations which was not carried, but in fact was defeated and the outcome was that it was not right for a war to be engaged in at this time against Iraq, would you then say that if the United Kingdom and the United States were to act unilaterally and go ahead and engage in a war with Iraq, basically they would be working within the realms of the law?

(Mr Hoon) I indicated earlier that there are different sources of international law. There is the common law of international nations which provides basic principles like self–defence, for example. There is also the law made by the Security Council of the United Nations and indeed by the General Assembly, so there is a range of ways in which action would be justified, but I assure you that whatever decision is taken by the British Government would be in conformity with international law.

Select Committee on Defence, House of Commons, Minutes of Evidence, Examination of Witnesses, para. 691 (Mar. 5, 2003), available at <http://www.publications.parliament.uk/pa/cm200203/cmselect/cmdfence/93/3030505.htm>.

85 Attorney General Goldsmith, Iraq: Resolution 1441 (Mar. 7, 2003), available at <http://www.number–10.gov.uk/files/pdf/Iraq%20Resolution%20l44l.pdf> (secret memo to UK prime minister, leaked Apr. 2005). This section was not included in the first publicly released version of the opinion in March 2003. Attorney General Goldsmith, Iraq: Legality of Armed Force, Hansard, House of Lords, vol. 646, col. WA3 (Mar. 17, 2003), available at <http://www.publications.parliament.uk/pa/Id/Idvol646.htm> (summary). Indeed, in initial discussions about the legality of military action, the British government refused to base its actions on the U.S. preemptive doctrine. Instead, in accordance with Attorney General Goldsmith’s opinion, the purported basis was the breach of Security Council resolutions.

86 Quoted in China, Taiwan Press, BBC Int’l Rep., Feb. 8, 2006 Google Scholar (citing China Defense Daily), available in Lexis Academic.

87 Full Text of Newly Passed Anti–Secession Law, China Daily, Mar. 15, 2005 Google Scholar, available in Lexis, Major World Newspapers, also available in People’s Republic of China, Order of the President No. 34, Mar. 14, 2005 (promulgating the law), at <http://taiwansecurity.org/News/2005/CD–l40305.htm> (English trans.).

88 France, Ministry of Defense, 2003–2008 Military Programme, Bill of Law Google Scholar, available at <http://www.ambafrance–us.org/atoz/mindefa.pdf>.

89 Jacques, Chirac, Speech to Strategic Air and Maritime Forces at Landivisiau (Jan. 19, 2006)Google Scholar, available at <http://www.elysee.fr/elysee/elysee.fr/anglais/speeches_and_documents/2006/speech_by_jacques_chirac_president_of_the_french_republic_during_his_visit_to_the_stategic_forces.38447.html>.

90 Every Country Has Right to Pre–emption: Jaswant, Press Trust of India, Sept. 30, 2002 Google Scholar, available in Lexis, Wire Service Stories.

91 Interview with Iranian Defense Minister Ali Shamkhani (Aug. 18, 2004), Fed. News Serv., Aug. 19, 2004, available in Lexis, Individual Publications Google Scholar.

92 Id.

93 Reisman, supra note 48.

94 See generally Orna, Ben–Naftali & Keren, R. Michaeli, ‘We Must Not Make a Scarecrow of the Law’:A Legal Analysis of the Israeli Policy of Targeted Killings, 36 Cornell Int’l L.J. 233 (2003)Google Scholar.

95 Disengagement Plan of Prime Minister Ariel Sharon—Revised, §3 (1) (3), May 28, 2004, available at <http://www.knesset.gov.il/process/docs/DisengageSharon_eng_revised.htm>.

96 Yong Tiam, Kui, Australia, N. Korea Join ‘Preemptive’Bandwagon, New Straits Times, Oct. 26, 2003, at 4, available in Lexis, Major World Newspapers Google Scholar.

97 North Korean Official Says Pre–emptive Attack “Not a Monopoly of the US, “ Global NewsWire, Sept. 10, 2004, available in Lexis, Individual Publications Google Scholar.

98 Putin Says Russia ‘Seriously’ Preparing Preventive Strikes, Rejects Talks, Agence France–Presse, Sept. 17, 2004, available in Westlaw Allnewsplus.

99 Ivanov: Military Force Remains a Political and Anti–Terrorist Instrument, News from Russia (compiled by Russian Foreign Ministry) (Dec. 17, 2004), available at <http://www.india.mid.ru/nfr2004/nf51.html>.

100 Russia’s “Preventive Strike” Rhetoric Seen as Olive Branch to NATO and USA, BBC Int’l Rep Sept. 12, 2004, available in Lexis, Individual Publications.

101 See, e.g., Christian, Caryl, Balancing Act, Newsweek, Mar. 20, 2003, available in Lexis, Magazine Stories Google Scholar, Combined.

102 Veronika, Voskoboinikova, Putin–Iraq Statement, ITAR–TASS, Mar. 20, 2003, available in Lexis, Wire Service Stories Google Scholar.

103 BBC Int’l Rep., supra note 100.

104 See, e.g., Nicholas, Kralev, Russia Vows Pre–emptive Terror Hits, Wash. Times, Sept. 9, 2004, at A1, available in Lexis Google Scholar, News, Most Recent Two Years; Cam, Simpson, U.S. Voices Support, Caution on Russia’s Terrorism War, Chi. Trib.,Sept. 10, 2004, at 4, available in Lexis, News, Most Recent Two Years Google Scholar.

105 Taiwan Cannot Rule out Pre–emptive Attacks on Mainland—Defence Minister, BBC Int’l Rep., Oct. 9, 2003, available in Lexis, Individual Publications.

106 The statements presented here demonstrate the dynamic nature of customary law. Just two years ago, Michael Byers assessed claims to preemptive self–defense in his broader examination of the Proliferation Security Initiative and found the initial claims by a few states outweighed by increasing criticism of the war in Iraq. Since 2004, however, some states have adroitly asserted a claim to preemptive self–defense while maintaining their critical stance on U.S. actions in Iraq. Michael, Byers, Policing the High Seas: The Proliferation Security Initiative, 98 AJIL 526, 541–43 (2004)Google Scholar.

107 Interview with Chancellor Gerhard, Schroder, Tagesthemen (ARD television broadcast Jan. 29, 2003)Google Scholar (on file with authors).

108 Iraq Proves Pre–emptive Wars Fail: Spanish PM, AP, May 3, 2004, available in Lexis Academic Google Scholar.

109 Final Communique of the Thirty–first Session of the Islamic Conference of Foreign Ministers, Istanbul, para. 41 (June 16, 2004), reprinted in Report of the Secretary–General on the Work of the Organization, UN Doc. A/58/856–S/2004/582, at 6, 13.

110 Michael Reisman, W., Folded Lies (1979)Google Scholar.

111 Although the authors disagree with Thomas Franck’s argument that the U.S. invasion of Iraq signaled an abrogation, rather than a possible transformation, of the international legal order pertaining to the use of force and self–defense, his broader points regarding who decides when force is justified as preemptive self–defense and who then reviews the lawfulness of that military action is particularly relevant here. This essay has focused on the shifting definitions attached to “attack,” “imminence,” and “self–defense,” but even once the content of these definitions is certain, the question of who decides and who then reviews when these definitions will be applied (the Security Council, a jury of states, or just the state asserting the right to preemptive action) remains. Under Article 51 of the UN Charter, of course, it is the threatened state that decides. Thomas, M. Franck, What Happens Now? The United Nations After Iraq, 97 AJIL 607, 616 (2003)Google Scholar.

112 George, W. Bush, State of the Union Address (Jan. 29, 2002)Google Scholar, 38 Weekly Comp. Pres. DOC. 125, 135 (Feb. 4, 2002), available at <http://www.gpoaccess.gov/wcomp/2002.html> (noting that Iraq, North Korea, and Iran constituted an axis of evil).

113 Russia Not Planning to Give up Right of Pre–emptive Strikes—Defence Minister, BBC Intl Rep., Oct. 20,2003, available in LEXIS, Individual Publications.

114 Select Committee on Foreign Affairs, supra note 77, Conclusions and Recommendations, para. 154(r), available at http://www.publications.parliament.uk/pa/cm200203/cmselect/cmfaff/196/19603.htm (citation omitted).

115 Australian Prime Minister John, Howard, Interview with Leon Delaney, Radio 2SM (Oct. 10, 2003)Google Scholar, available at <http://www.pm.gov.au/news/interviews/Interviews517–html>; see also Where’s the Red Line? Newsweek, Feb. 17, 2003, at 36, available in Lexis, Magazine Stories, Combined.

116 North Korea Not Bound by Missile Test Moratorium—Text, BBC int’l Rep., Mar. 3, 2005 (quoting Foreign Ministry of Norm Korea, Memorandum of DPRK Foreign Ministry (Mar. 2, 2005)), available in Lexis, Individual Publications Google Scholar (stating, “Therefore, it is quite natural mat the DPRK has manufactured nukes for self–defence and continues to do so to cope with the policy of the Bush administration aimed at mounting a pre–emptive nuclear attack on it.”).

117 Comm’n on Human Rights, Report of the Special Rapporteur on the Independence of Judges and Lawyers, UN Doc. E/CN.4/2005/60, para. 36.

118 Oscar, Schachter, Self–Defense and the Rule of Law, 83 AJIL 259, 266–s69 (1989)Google Scholar. The world has changed significantly since Schachter noted the potentially destabilizing effect of uncertainty and indeterminacy of evaluating unilateral claims to preemptive self–defense, restrained at that time through power politics and the widely accepted norm against using force to achieve objectives previously thought legitimate, such as economic gain or fulfillment of a “manifest destiny.”

119 For further discussion of terrorism and international law, see Reisman, supra note 2.