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Iraq: The Shifting Sands of Preemptive Self-Defense

Published online by Cambridge University Press:  27 February 2017

Miriam Sapiro
Miriam Sapiro*
Affiliation:
New York University School of Law
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Extract

The United States articulated a new concept of preventive self-defense last fall that is designed to preclude emerging threats from endangering the country. Rising like a phoenix from the ashes of the September 11 terrorist attacks, the preventive approach to national security is intended to respond to new threats posed by “shadowy networks of individuals [who] can bring great chaos and suffering to our shores for less than it costs to purchase a single tank.” The Bush administration wisely concluded that it could not rely solely upon a reactive security posture, due to the difficulty in deterring potential attacks by those determined to challenge the United States and the magnitude of harm that could occur from weapons of mass destruction falling into the wrong hands. Although the administration has characterized its new approach as “preemptive,” it is more accurate to describe it as “preventive” self-defense. Rather than trying to preempt specific, imminent tiireats, the goal is to prevent more generalized threats from materializing.

Type
Agora: Future Implications of the Iraq Conflict
Information
American Journal of International Law , Volume 97 , Issue 3 , July 2003 , pp. 599 - 607
Copyright
Copyright © American Society of International Law 2003

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References

1 See Section V of The National Security Strategy of the United States of America (Sept. 2002), available at <http://whitehouse.gov/nsc/nss.pdf> [hereinafter NSS].

2 Id. (President George W. Bush’s Introduction).

3 Id.

4 Administration officials have claimed that the concept of preventive self-defense is not a significant development or departure from past practice. Deputy Secretary of State Richard Armitage dismissed the idea that the administration favors force as the primary way to resolve disputes. “What people remember,” he said, “is that preemption doctrine, instead of the umpteen chapters [in the National Security Strategy] on the need for bilateral and multilateral cooperation.” Weisman, Steven R., What Rift? Top Aides Deny State Dept.-Pentagon Chasm N.Y. Times, May 31, 2003, at A1 Google Scholar. National Security Adviser Condoleezza Rice suggested that the doctrine does not represent a break with the Clinton administration, citing the 1994 North Korean crisis as affirming a right of anticipatory self-defense. Dr. Condoleezza Rice Discusses President’s National Security Strategy (Oct 1, 2002), available at <http://www.whitehouse.gov/news/releases/2002/10/20021001–6.html>. But there is a qualitative difference between quietly considering the option of preventive action in a particular case, and publicly embracing it as a doctrine potentially applicable to all adversaries.

5 This essay does not address whether the United States had sufficient legal basis for its actions in Iraq on the basis of existing Security Council resolutions, which is covered elsewhere in this Agora.

6 Address to the United Nations General Assembly in New York City, Sept. 12, 2002, 38 Weekly Comp. Pres. Doc. 1529–33 (Sept. 16, 2002).

7 See White House Background Paper: A Decade of Deception and Defiance (Sept. 12,2002), available at <http://www.whitehouse.gov/infocus/iraq/iraq_archive.html?static>; <http://usinfo.state.gov/regional/nea/iraq/text/>.

8 The National Security Strategy states that “[f]or centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack.” NSS, supra note 1, at 15 (emphasis added).

9 The doctrine of anticipatory self-defense is sometimes also called “preemptive self-defense,” which should not be confused with the broader notion the administration is trying to advance under the same name. As noted, it is more accurate to describe the administration’s approach as “preventive self-defense.”

10 1 Hugo Grotius, De Jure Belli Ac Pack Libri Tres 173 (Francis W. Kelsey trans., 1925) (danger “must be immediate and imminent in point of time . . . [b]ut those who accept fear of any sort as justifying anticipatory slaying are themselves greatly deceived, and deceive others”); Emmerich De Vattel, The Law of Nations 243 (Charles G. Fenwick trans., 1916) (a nation has “the right to prevent an injury when it sees itself threatened with one”).

11 An excellent summary of the dispute is found in Abraham D. Sofaer, On the Necessity of Pre-emption, 14 Eur. J. Int’l L. 209(2003).

12 Letter from Daniel Webster to Lord Ashburton (Aug. 6, 1842), quoted in 2 John Bassett Moore, A Digest of International Law 412 (1906).

13 The French version of the Charter, which is equally authentic, uses the term “agression armee” (“armed aggression”) for “armed attack.” Although “agression armee” could be interpreted as encompassing a broader range of actions, the barrier is still rather high.

14 See, e.g., Franck, Thomas M., Recourse to Force 97–108 (2002)CrossRefGoogle Scholar; Dinstein, Yoram, War, Aggression and Self-Defence 165–69 (2001)Google Scholar; Gray, Christine, International Law and the Use of Force 111–15 (2000)Google Scholar. In the after-math of two world wars and an impotent League of Nations, the Charter was intended to create a stricter standard by outlawing force, except in the most narrow of circumstances. Some have argued that the explicit reference to an “armed attack” therefore means a state must wait for such an unfortunate event to occur before it may justify a resort to force. Others contend that the Charter’s language does not supplant a state’s inherent right of self-defense as defined by customary international law, or require that it await a possibly devastating attack before acting, particularly in an era where ever more destructive weapons may be delivered ever more rapidly. The International Court of Justice sidestepped the issue in its Nicaragua decision, see Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 94 (June 27). Judge Schwebel made his views known in his famous dissent, see id., at 337–38 (disagreeing with a reading of Article 51 that would mean “if, and only if, an armed attack occurs”).

15 See generally Franck, supra note 14, at 99–107; Gray, supra note 14, at 112–15.

16 Radio and Television Report to the American People on the Soviet Arms Buildup in Cuba, 485 Pub. Papers 806, 807 (Oct. 22,1962).

17 In discussing the Kennedy administration’s reluctance to cite Article 51 as a basis for the quarantine, Professor Chayes noted that

it is a very different matter to expand [Article 51 ] to include threatening deployments or demonstrations that do not have imminent attack as their purpose or probable outcome . . . There is simply no standard against which [such a] decision could be judged. Whenever a nation believed that interests, which in the heat and pressure of a crisis it is prepared to characterize as vital, were threatened, its use of force in response would become permissible.

Abram Chayes, The Cuban Missile Crisis: International Crises and the Role of Law 65 (1974).

18 SC Res. 487 (June 19, 1981).

19 One is left to conclude that in the past the “option of preemptive actions” may have been more theoretical than operational. The national security advisor subsequently cited the 1962 Cuban missile crisis and the 1994 Korean missile crisis as evidence that the United States has long affirmed the right of anticipatory self-defense, but these two cases do not clearly stand for that proposition. See note 4 and text at notes 16 and 17 supra.

20 NSS, supra note 1, at 15.

21 William H. Taft IV, Legal Adviser, Department of State, The Legal Basis for Preemption, Nov. 18, 2002, available at <http://www.cfr.org/publication.php?id=5250> (memorandum to American Society of International Law-Council on Foreign Relations Roundtable on Old Rules, New Threats) (emphasis added).

22 The legal adviser circulated his memorandum after release of the National Security Strategy, but the memorandum was prepared for a study group and lacks the status of a formal document. Most important, it is unclear whether it represents the view of the administration as a whole.

23 Address to the Nation on Iraq, Mar. 17, 2003, 39 Weekly Comp. Pres. Doc. 338, 340 (Mar. 24, 2003).

24 Id. at 339.

25 Remarks of the Honorable William Howard Toft, IV, Legal Adviser, U. S. Department of State, Before the National Association of Attorneys General (Mar. 20,2003), available at http://usinfo.state.gov/ regional/ nea/iraq/text2003/032129taft.htm The legal justification put forward by the British government did not mention self-defense, but cited only the Security Council resolutions. See Goldsmith, Lord, Legal Basis for Use of Force Against Iraq (Mar. 17,2003) (statement by UK attorney general in answer to a parliamentary question), available at <http://www.labour.org.uk/legalbasis>..>Google Scholar

26 Taft, supra note 21.

27 See Kristof, Nicholas D., Save our Spooks, N.Y. Times, May 30, 2003, at A27 Google Scholar.

28 See Franck, supra note 14 at 174—91, for discussion of whether the concept of mitigation might narrow a chasm between law and morality.

29 See generally Editorial Comments, NATO’s Kosovo Intervention, 93 AJIL 824 (1999).

30 Address to the Nation on Iraq, Mar. 18, 2003, 39 Weekly Comp. Pres. Doc. 342, 343 (Mar. 24, 2003).

31 See, e.g., Michael Reisman, W., Assessing Claims to Revise the Laws of War, 97 AJIL 82 (2003)CrossRefGoogle Scholar.

32 Rice, supra note 4.

33 Taft, supra note 21.

34 See generally John Ikenberry, G., America’s Imperial Ambition, Foreign Aff., Sept./Oct. 2002, at 44.Google Scholar

35 Rice, supra note 4 (“Some have criticized this frankness as impolitic. But surely clarity is a virtue here.”).

36 See The Pew Global Attitudes Project, Views of a Changing World (June 2003), available at <http://people-press.org/reports/display.php3?ReportID=l 85> (finding that the Iraq war has widened the rift between Americans and Western Europeans, further inflamed the Muslim world, softened support for the war on terrorism, and significantly weakened global public support for the United Nations and NATO); see also Michael Dobbs, Arab Hostility Toward U.S. Growing, Poll Finds, Wash. Post, June 4, 2003, at A18.

37 See National Strategy to Combat Weapons of Mass Destruction (Dec. 2002), available at <http:/ /www.whitehouse.gov/news/releases/2002/12/WMDStrategy.pdf> and National Strategy for Combating Terrorism (Feb. 2003), available at http://www.whitehouse.gov/news/releases/2003/02/counter_terrorisrn/counter_terrorism_strategy.pdf>. See also the “Proliferation Security Initiative” launched by President Bush during his May visit to Europe, which calls for partners to develop agreement on ways to interrupt the flow of WMD material, Remarks by the President to the People of Poland at Wawel Royal Castle, Krakow, Poland (May 31, 2003), available at <http://www.whitehouse.gov/news/releases/2003/05/20030531–3.html>.

38 See Sanger, David, Bush Presses Case on Iran and Korea at Economic Talks, N.Y. Times, June 2, 2003, at Al Google Scholar; G-8 Declaration on Nonproliferation of Weapons of Mass Destruction (June 3,2003), available at <http://www.g8.fr>, which states that

We have a range of tools available to tackle this threat: international treaty regimes; inspection mechanisms such as those of the International Atomic Energy Agency (IAEA) and Organization for the Prohibition of Chemical Weapons; initiatives to eliminate WMD stocks such as the G8 Global Partnership; national and internationally-coordinated export controls; international co-operation and diplomatic efforts; and if necessary other measures in accordance with international law.

The G-8 countries are Canada, France, Italy, Germany, Japan, Russia, the United Kingdom and the United States.

39 G-8 Declaration, supra note 38. See also U.S.-European Union Joint Statement on Proliferation of Weapons of Mass Destruction (June 25,2003), available at <http://www.whitehouse.gov/news/releases/2003/06/20030625–17.html> (“[w]e recognize that, if necessary, other measures in accordance with international law may be needed to combat proliferation”).