The case for anticipatory self-defense.
Jan 28, 2002, Vol. 7, No. 19 • By MICHAEL J. GLENNON
STILL, like most states, the United States never formally claimed a right to anticipatory self-defense--i.e., to use armed force absent an armed attack, so as to prevent one from occurring. During the 1962 Cuban Missile Crisis, the United States declined to rely upon Article 51, claiming instead that the "quarantine" of Cuba was authorized by the Organization of American States (and implicitly by the Security Council). When Israel seemed to assert a right to use defensive force to prevent an imminent Arab attack in June 1967, and even when Israel squarely claimed that right in attacking an Iraqi nuclear reactor in 1981, the United States steered clear of the issue of anticipatory self-defense. In 1986, however, the United States finally did claim the right to use "preemptive" force against Libya following the bombing of a Berlin night club that killed two Americans.
This last incident is worth considering closely: The Libyan bombing highlights the doctrinal confusion surrounding self-defense and also marks a proverbial "paradigm shift" in American thinking on the question. Why insist upon an actual armed attack as a precondition for the use of force? The axiomatic answer, under long-standing dogma, is of course that force is necessary to protect against the attack. But by acknowledging that its use of force against Libya was preemptive, the United States in effect moved beyond the conventional justification. The Berlin bombing was obviously over and finished; no use of force was, or conceivably could have been, instrumental in "defending" Americans killed at the Berlin club. The United States was not, in this sense, responding defensively. It was engaged in a forward-looking action, an action directed at future, not past, attacks on Americans. Its use of force against Libya was triggered by the Berlin attack only in the sense that that attack was evidence of the threat of future attacks. Evidence of Libyan capabilities and intentions sufficient to warrant preemptive force might well have taken (and, in fact, also did take) the form of intelligence reports. From a purely epistemological standpoint, no actual armed attack was necessary.
Although the United States did not spell out its thinking this explicitly, in later incidents it acted on precisely this future-looking rationale. True, the United States was in each instance able to argue that actual armed attacks had occurred. But in each of those subsequent incidents, the United States was responding to evidence of future intent and capability, not defending against past action. Its objective was to avert future attacks through preemption and deterrence.
In 1993, for example, the United States fired cruise missiles at the Iraqi intelligence headquarters in Baghdad following an alleged effort by Iraq to assassinate President Bush. But the assassination attempt was long since over; the United States used force not to defend against illicit force already deployed, but to discourage such force from being deployed in the future. In 1998, the United States fired cruise missiles at a terrorist training camp in Afghanistan and a pharmaceutical plant in Sudan following attacks on U.S. embassies in Kenya and Tanzania. Again, the provocation had ended; in no way can the United States be seen as having defended itself against the specific armed attack to which its embassies had been subject.
So, too, with the use of force against Afghanistan following September 11. The armed attack against the World Trade Center and the Pentagon was over, and no defensive action could have ameliorated its effects. The U.S. use of force was prompted by the threat of future attacks. And it was evidence of that threat--gleaned from multiple intelligence sources, not simply from the September 11 attack--to which the United States responded with its action against Afghanistan. That action could well have been warranted even if September 11 had never occurred. The problem lay in the future, not the past.