The case for anticipatory self-defense.
Jan 28, 2002, Vol. 7, No. 19 • By MICHAEL J. GLENNON
In each of these incidents, the United States justified its action under Article 51 of the Charter, claiming to be engaged in the defensive use of force. But in fact something different was going on. In each incident, the United States was--as it acknowledged forthrightly following the 1986 bombing of Libya--engaged in the use of preemptive force. The two are not the same. The justification for genuine defensive force was set forth by U.S. Secretary of State Daniel Webster in the famous Caroline case of 1837. To use it, he wrote, a state must "show a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment of deliberation." (This formula continues to be widely cited by states, tribunals, and commentators as part and parcel of the law of the Charter.) Obviously, in none of the incidents canvassed above can the American use of force be said to meet the Caroline standard. None of the American armed responses needed to be, or was, instant. In each the United States deliberated for weeks or months before responding, carefully choosing its means. Those means were directed not at defending against an attack that had already begun, but at preempting, or deterring, an attack that could begin at some point in the future.
In fact, the United States had long ago accepted the logic of using armed force without waiting to be attacked. In the early 1960s, President Kennedy seriously considered launching a preemptive strike against the People's Republic of China to prevent it from developing nuclear weapons. In 1994, President Clinton contemplated a preemptive attack against North Korea for the same reason. During the Cold War, the United States retained the option of launching its nuclear weapons upon warning that a nuclear attack was about to occur--before the United States actually had been attacked--so as to protect command and control systems that were vulnerable to a Soviet first strike.
It thus came as no dramatic policy change when, in the Bush Doctrine, the United States publicly formalized its rejection of the armed attack requirement and officially announced its acceptance of preemption as a legitimate rationale for the use of force. "Every nation now knows," President Bush said on December 11, "that we cannot accept--and we will not accept--states that harbor, finance, train, or equip the agents of terror."
THAT FORMALIZATION was overdue. Twenty-first-century security needs are different from those imagined in San Francisco in 1945.
First, as noted above, the intended safeguard against unlawful threats of force--a vigilant and muscular Security Council--never materialized. Self-help is the only realistic alternative.
Second, modern methods of intelligence collection, such as satellite imagery and communications intercepts, now make it unnecessary to sit out an actual armed attack to await convincing proof of a state's hostile intent.
Third, with the advent of weapons of mass destruction and their availability to international terrorists, the first blow can be devastating--far more devastating than the pinprick attacks on which the old rules were premised.
Fourth, terrorist organizations "of global reach" were unknown when Article 51 was drafted. To flourish, they need to conduct training, raise money, and develop and stockpile weaponry--which in turn requires communications equipment, camps, technology, staffing, and offices. All this requires a sanctuary, which only states can provide--and which only states can take away.
Fifth, the danger of catalytic war erupting from the use of preemptive force has lessened with the end of the Cold War. It made sense to hew to Article 51 during the Cuban Missile Crisis, when two nuclear superpowers confronted each other toe-to-toe. It makes less sense today, when safe-haven states and terrorist organizations are not themselves possessed of preemptive capabilities.
Still, it must be acknowledged that, at least in the short term, wider use of preemptive force could be destabilizing. The danger exists that some states threatened with preemptive action (consider India and Pakistan) will be all too ready to preempt probable preemptors. This is another variant of the quandary confronted when states, in taking steps to enhance their security, unintentionally threaten the security of adversaries--and thus find their own security diminished as adversaries take compensatory action.
But the way out of the dilemma, here as elsewhere, is not underreaction and concession. The way out lies in the adoption of prudent defensive strategies calculated to meet reasonably foreseeable security threats that pose a common danger. Such strategies generate community support and cause adversaries to adapt perceptions and, ultimately, to recalibrate their intentions and capabilities. That process can take time, during which the risk of greater systemic instability must be weighed against the risk of worldwide terrorist attacks of increased frequency and magnitude.
The greater danger is not long-term instability but the possibility that use of preemptive force could prove incomplete or ineffective. It is not always possible to locate all maleficent weapons or facilities, thereby posing the risk that some will survive a preemptive strike and be used in retaliation. Similarly, if a rogue state such as Iraq considers itself the likely target of preemptive force, its leaders may have an incentive to defend with weapons of mass destruction--weapons they would not otherwise use--in the belief that they have nothing to lose. A reliable assessment of likely costs is an essential precondition to any preemptive action.
THESE ARE the sorts of considerations that policymakers must weigh in deciding whether to use preemptive force. Preemption obviously is a complement, not a stand-alone alternative, to non-coercive policy options. When available, those options normally are preferable. The point here is simply that preemption is a legitimate option, and that--the language of the Charter notwithstanding--preemption is lawful. States can no longer be said to regard the Charter's rules concerning anticipatory self-defense--or concerning the use of force in general, for that matter--as binding. The question--the sole question, in the consent-based international legal system--is whether states have in fact agreed to be bound by the Charter's use-of-force rules. If states had truly intended to make those rules obligatory, they would have made the cost of violation greater than the perceived benefits.
They have not. The Charter's use-of-force rules have been widely and regularly disregarded. Since 1945, two-thirds of the members of the United Nations--126 states out of 189--have fought 291 interstate conflicts in which over 22 million people have been killed. In every one of those conflicts, at least one belligerent necessarily violated the Charter. In most of those conflicts, most of the belligerents claimed to act in self-defense. States' earlier intent, expressed in words, has been superseded by their later intent, expressed in deeds.
Rather, therefore, than split legal hairs about whether a given use of force is an armed reprisal, intervention, armed attack, aggression, forcible countermeasure, or something else in international law's over-schematized catalogue of misdeeds, American policymakers are well advised to attend directly to protecting the safety and well-being of the American people. For fifty years, despite repeated efforts, the international community has been unable to agree on when the use of force is lawful and when it is not. There will be plenty of time to resume that discussion when the war on terrorism is won. If the "barbaric and atavistic" forces succeed, however, there will be no point in any such discussion, for the law of the jungle will prevail. Completing that victory is the task at hand. And winning may require the use of preemptive force against terrorist forces as well as against the states that harbor them.
Michael J. Glennon is a fellow at the Woodrow Wilson International Center for Scholars in Washington, D.C., and professor of law at the University of California, Davis, Law School. He is the author of "Limits of Law, Prerogatives of Power: Interventionism after Kosovo" (Palgrave, 2001).