Preemptive War: Is It Legal?
By Stephen Murdoch

Embedded within the national security strategy is a doctrine that some say dangerously expands the international law of self defense.

The use of force is the bluntest and most destructive tool available to a nation-state in the protection of its interests. The question of when to permit countries to rely on this blunt instrument has bedeviled presidents, kings, premiers, and prime ministers throughout the 20th century. For international lawyers today, the issue is as divisive as it is important.

After World War I the League of Nations was founded with the hope that the international community would band together to legislate war out of existence. In the 1920s and ’30s, however, the league’s pronouncements proved futile against the rapid rise of fascism in Europe and Asia. Once the Axis partners were dealt with during World War II, the United Nations was founded to, in the words of its charter, “save succeeding generations from the scourge of war.”

In the war’s aftermath it appeared self-evident to the UN founders that they could not condemn all resort to force. Hence the inclusion of article 51 in the charter, which states, “Nothing in the present charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations….”

Article 51 is written in clear, straightforward prose, but self-defense can be a devil to apply. For example, a literal reading of article 51 would prevent a member nation from attacking a hostile neighbor that is massing troops on its border with obvious ill intent—a classic example of what international jurists call “anticipatory” defense. Yet many international law experts, for instance, believe that article 51 should not render illegal Israel’s 1967 attack on Egypt, Jordan, and Syria at the outset of the Six-Day War. The preemptive strikes Israel launched occurred after several weeks of frantic diplomacy while hostile troops were massing in the Sinai, the Golan Heights, and the West Bank.

When the Bush administration recently announced its new doctrine of preemption, the debate over the parameters of legal self-defense spilled from the halls of academia onto the nation’s op-ed pages and television news programs. The legality (and wisdom) of the doctrine of preemption has inevitably become entangled in deliberations over Iraq, but the doctrine is intended to encompass much more than a single conflict. Rather it is being promoted by the White House as a guide to the conduct of foreign policy in the post–September 11 era.

The doctrine of preemption is embedded in the administration’s national security strategy (NSS), issued September 2002. For the most part, the promulgation of the NSS did not cause undue alarm. Commentators of diverse philosophies and ideologies support the language that extols the promotion of democracy, economic growth, and free trade, as appropriate to the pursuit of international peace. Those tools are seen as fitting in the attempt to reduce the appeal extremists have for susceptible populations around the world. In short, economic growth and democracy are commonly seen as vital to the war on terror. It is easy to agree with the following NSS sentiment: “A world where some live in comfort and plenty, while half of the human race lives on less than $2 a day, is neither just nor stable.”

Critics have focused on that small section of the NSS in which the Bush administration’s doctrine of preemption is spelled out, and they warn that this doctrine dangerously expands the international law of self-defense. Supporters counter that the preemptive use of force is a legitimate response to threats from new enemies. In order to understand the debate that the Bush doctrine of preemption has raised, the Washington Lawyer invited six experts in international law to discuss how the doctrine fits into existing rules of self-defense and established international law.

Self-Defense in International Law
In 1837 Canadian rebels used the American ship Caroline to supply their insurgency against the British government in Canada. Angered, the British sent a force across the American border to capture the ship, but the detachment instead killed a man, burned the Caroline, and set it adrift. Americans were outraged and the British claimed the strike was in self-defense.
    A few years later, during treaty negotiations with the British, Secretary of State Daniel Webster cited the attack on the Caroline in stating that a nation may only invoke the right of self-defense when the threat is instant, overwhelming, and leaves no choice of means. Although international jurists do not always agree on what the law of self-defense is, these criteria voiced by Webster form the cornerstone of anticipatory defense: an attack to thwart an imminent and overwhelming threat.

Our enemies and their weapons have changed since the mid-19th century. A boat-burning posse on the Niagara River seems almost quaint in comparison to the destruction wreaked on September 11. Previously, even during the cold war, countries assumed they would have signs of impending attacks. Today an instant, overwhelming attack that leaves no choice of means might be an unforeseeable radiological bomb, or biological or chemical weapon.

“Nine-eleven showed that any actor, state or nonstate, can undertake asymmetric attacks of which we will have no warning whatsoever,” says Ruth Wedgwood, a professor at Yale Law School and Johns Hopkins School of Advanced International Studies.

Defense experts and the Bush administration now question what an imminent threat means in a world where terrorists and rogue states have weapons of mass destruction. According to the national security strategy, “Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat—most often a visible mobilization of armies, navies, and air forces preparing to attack. We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries.”

Critics claim that the administration is trying to drop from traditional notions of self-defense the criterion of imminent threat, a key element that helped prevent states from masking aggression in self-protection. Nonetheless, the doctrine of preemption is only truly controversial when applied to sovereign states. International law experts from a range of philosophical viewpoints believe the government may legally strike against terrorists, even without knowledge of a definite, imminent threat, because of their secretive means and proclivity for surprise attacks.
     According to James Steinberg, vice president and director of foreign policy studies at the Brookings Institution, “The nature of what [terrorists] do makes it difficult to apply the imminent threat criterion.” Therefore, says Steinberg, most experts agree that the use of force against terrorists—without knowledge of a specific threat from them—can be justified based solely on their doctrines and past practices.

The national security strategy’s doctrine of preemption, however, also applies to states, albeit only rogue ones. This troubles critics because they believe that rogue states are different from terrorists and similar, in certain ways, to more law-abiding nations. Unlike terrorists, they say, rogue state behavior can be predicted. Therefore, to dispense with the criterion of imminent threat as applied to nations is unnecessary.

“If the argument here is that rogue states are going to attack without warning, I’m not sure what the evidence for that is. What’s the historical evidence that suggests that rogue states are harder to predict when they’re going to act?” Steinberg asks.
     Some commentators also believe rogue states, unlike terrorists, can be deterred from unwanted behavior, but that the recent terrorist attacks have confused the record. “Before September 11 were we talking about Iraq? No,” says Juliette Kayyem, executive director of the Executive Session on Domestic Preparedness at Harvard’s John F. Kennedy School of Government. “Deterrence wasn’t working perfectly, and certainly our weapons inspections were not working perfectly, but it was within a system of how states deal with each other.”

Prevention Versus Preemption
Critics also feel that what the administration is proposing in its new doctrine is really threat prevention, not preemption. The difference, they say, is an important one. The element of imminent threat exists in preemption, which is considered a legitimate use of force in international law, but not in prevention, which is an illegitimate use of force.

Preemption, says Steinberg, is analogous to when a person acts aggressively to protect him- or herself when threatened with a loaded gun. Prevention is when “you see a guy who’s got a gun, who you don’t like very much, and [who] has a bad history. But he’s not pointing [the gun] at you and you don’t have any reason to think he’s going to point [it] at you.”

A policy of prevention focuses too much on a state’s capacity, rather than the country’s intent to attack or not. Critics argue that foreign policies based on prevention may actually lead to an increase in the use of force, especially when adopted in a tense situation like that between India and Pakistan.

“You end up in sort of an escalation cycle,” says Steinberg. “You see this guy has a very capable army, so you decide you’re going to attack him before he has a chance to attack you. He then worries that you’re going to attack first, so he has to attack you. You create a situation in which the use of force just becomes more and more prevalent and…you’re almost always being forced to resort to force.”

When applied to actual attacks, the distinction between prevention and preemption is not always clear. Israel’s strike against Iraq’s Osirak nuclear reactor in 1981 is probably an example of an illegal preventive attack. In that case there was no clear threat of imminent attack from Iraq, but the Iraqis were about to turn the reactor on and the Israelis decided to confront the problem earlier rather than later. The entire Security Council, including the United States, subsequently condemned the attack.

To some lawyers, however, the distinction between prevention and preemption does not make much sense. “The whole purpose of prevention is to stop or to limit the possibilities in which your citizens would be at risk,” says Kayyem. “That sounds a lot like preemption. The distinction to me just seems to be a semantic distinction.”

John Norton Moore, a professor of law at the University of Virginia and director of the Center for National Security Law, is also left scratching his head when critics raise the prevention–preemption distinction. “I don’t have any idea what they’re talking about,” he says, “and it doesn’t help very much. I think that’s just sort of like telling you that coffee keeps you awake because it contains a wake-ative agent. You really haven’t learned anything when they say that.”

This does not mean that Moore is a fan of the doctrine of preemption, which he calls a “serious blunder,” a strategic mistake that ultimately damaged the United States. “I personally believe that the choice of the language of preemption in the [national security strategy] was a poor choice of terms for a variety of reasons. The first of those is it was completely unnecessary.”

Nothing the United States is doing or planning in regard to the war on terrorism or Iraq, he says, would violate existing principles of law under the United Nations charter. Moore argues that the action in Afghanistan is not preemptive or preventive, or anything other than lawful defense in the face of armed aggression. So, too, is hunting down terrorist cells around the world.

To Moore the United States is simply exercising the right to individual and collective defense, but the phrasing of the doctrine of preemption allows America’s enemies to say that the United States wants to act unilaterally and run roughshod over the UN charter. “I’m certain that is not the intent of the administration in this, but I think it is a very unfortunate use of terms,” he says.

Weapons of Mass Destruction
For many experts, weapons of mass destruction in the hands of terrorists and rogue nations change the self-defense analysis. In a world with these catastrophic weapons, they believe that countries should be allowed to strike well before a hostile enemy actually attacks. But how far these experts are willing to stray from a strict rule of self-defense, which requires actual enemy attack, turns upon what they emphasize. Some lawyers worry that a lower threshold for self-defense interventions, decided upon unilaterally, will impinge on nations’ sovereignty and perhaps increase cycles of violence.

Other lawyers emphasize the immediacy and deadliness of chemical, biological, and nuclear weapons. To them a rule restricting countries to attack only against an act under way is outdated.

“There’s not a 90-minute lead time. There’s not a seven-minute lead time. There is a zero lead time in detecting certain kinds of oncoming attacks, as we saw in the attacks on the World Trade Center and on the Pentagon. Certainly one does not want to put the United States in the position of being the lawbreaker, but there is always ongoing debate on what international law actually is in its substance,” says Wedgwood.

Moreover, at times countries will have to decide alone when they must strike against enemies willing to use weapons of mass destruction, for to rely on a politicized and cumbersome UN Security Council may be too dangerous for their citizens.

Of course, weapons of mass destruction existed long before September 11, and international jurists do not believe that a nation’s capacity alone is sufficient to trigger defensive strikes against it. “Look, nuclear is WMD [weapons of mass destruction], and we’ve been living with countries that have had nuclear capabilities—countries that have not liked us—for a long time,” says Kayyem. “That alone doesn’t seem to me to justify a change in the way we view either the preemption doctrine or what we should do as a nation,” says Kayyem.

Most, if not all, international jurists would agree with Kayyem, but weapons of mass destruction are a key element in deciding when a peremptory attack is appropriate. For Wedgwood the analysis behind a potential preemptive attack today is threefold: “One, that [an enemy] is not deterrable. Two, that he will engage in illicit targeting of innocent people. And three, that his capacity is much greater because of WMD.”

Although Steinberg agrees that weapons of mass destruction warrant a change in the self-defense calculation, he worries about how the national security strategy might affect nations’ sovereignty. He believes the strategy “in some dimensions is so Wilsonian that it clearly has a very constrained view of sovereignty.”

According to Steinberg, the strategy implies that the United States is entitled to act not just against threats to security, but also to promote democracy, free markets, and other values. The strategy does not limit U.S. actions to military force, he concedes, but it is an option, leading him to conclude that the strategy is “either an expansive view of intervention or a constrictive view of sovereignty.”
     For Lee Feinstein, a senior fellow for U.S. foreign affairs and international law at the Council on Foreign Relations, whether or not a country’s sovereignty is violated depends in part upon the main objective of the preemptive attack. Feinstein believes that Iraq’s sovereignty, for instance, would not be violated if the United States invaded to disarm the government, but it would be if the United States sought a regime change. “In other words, if you argue that the preemptive action is to take out discrete facilities, then you are trying to vindicate the UN Security Council resolutions. If the conclusion is that the only way to get rid of weapons of mass destruction is to get rid of Saddam, then it’s different.”

Steinberg argues that weapons of mass destruction should actually make countries more reluctant to make military intervention decisions unilaterally. For example, he cites the case of India and Pakistan. Under the logic of the strategy, India worries that Pakistan’s nuclear weapons will fall into terrorist hands and decides to attack preventively. In turn Pakistan, worried about what India is going to do, feels it needs to do something. “And so you get into this thing in which you’re driving the use of force so early back that you’re almost creating the very dangers that you’re trying to avoid,” says Steinberg.

Doctrine of Preemption
Ask a group of international law experts whether the doctrine of preemption is new and almost all will have a different answer. Some think the doctrine is nothing new, others think it is partly new, and still more believe it was just poorly written and thought out. According to Edwin Williamson, a partner at Sullivan & Cromwell, “The doctrine of preemptory self-defense is not a fully developed doctrine, so to some extent you are cutting new ground.”

Moreover, lawyers disagree about the meaning of UN charter article 51 and the customary international law of self-defense. Therefore it is difficult to know what, if anything, the doctrine has changed. For an expert who views article 51 narrowly, there is no right of anticipatory defense at all and the doctrine of preemption is very much a new animal. Other international jurists, however, look to a rich history of self-defense in customary law and believe the doctrine is simply a reasonable response to new threats.

“I’d argue it’s not new in the sense that . . . the whole customary law of self-defense, from the Kellogg-Briand Pact of 1928 onwards, recognizes that countries have a right to adapt measures of self-
defense to tactical situations. But it’s certainly different from the European view [which takes a narrow reading] of article 51, that’s for sure,” says Wedgwood.

Even if the doctrine is new, lawyers do not believe that its simple statement in the overall national security strategy will change international law. According to Moore, “No one is going to accept such [a] general principle.”

Actions, in addition to the statements in the national security strategy, are needed to affect customary international norms. “Given that customary international law is basically the practice of states, what the practice of the United States is becomes important,” says Williamson.

Feinstein has no problem with this: justice and security should not be hobbled by process, and the old rules of self-
defense may not be adequate to cope with today’s threats. Thus, changing self-defense norms through state behavior is legitimate. “State practice is a valid way of changing the law. I think that most international lawyers would disagree with me, but as a former state department official, I think it’s important to recognize that.”

Critics worry, though, that if the United States pushes the envelope of self-defense, justification for aggression will spread. China could attack Taiwan, for instance, and claim it was a preemptory attack.

Williamson, though, plays down such fears. In the end, states will act as they can and wish to, he says, unconstrained by customary international norms, which are ultimately unenforceable. “The international legal community is chock-full of these norms that people must abide by and there’s no authority for them other than it feels good. You know, the Ten Commandments is a good set of norms.”

Nevertheless, Steinberg fears that if the international community condemns the United States for acting illegally, American power and persuasion will be curtailed. Look at the German elections of 2002, he argues, where disagreements over foreign policy have led to a break with an important ally and created a political problem for the United States. A debate over the legality of U.S. actions matters, he says, because “it has a cost to the United States’ prestige—or generally what I call soft power—if we are viewed as acting illegally or outside the bounds of what others accept are the legitimate uses of force.”

The Legality of Attack
Edwin Williamson does not understand why people have been arguing over how the doctrine of preemption applies to Iraq. The United States, he says, may legally attack Iraq without relying on the doctrine because Iraq has repeatedly violated the terms of the UN cease-fire agreement. Under the terms of Security Council resolution 687, which was adopted in 1991, Iraq agreed, in part, to discontinue its weapons-of-mass-destruction program in return for a cessation of hostilities.

“What has happened is that although they formally accepted those conditions,” says Williamson, “they have since failed to live up to them, miserably.” Therefore the cease-fire is no longer in effect and the international community can rely on Security Council resolution 678, which was adopted in 1990, authorizing UN member states to use “all necessary means…to restore international peace and security in the area.”

Most, if not all, international law experts agree with Williamson. The Gulf War, in essence, is not over and could be resumed by the United States and its allies.

If the United States and other UN member states have the legal right to attack Iraq, what explains the debate about how the doctrine of preemption applies to Iraq? And why did the administration seek permission from Congress and the Security Council?

“It’s all political,” says Williamson. From a policy standpoint, a broad coalition of countries in support of an attack helps, as does congressional approval. “But I don’t see anything to be gained by wasting a lot of breath on anticipatory self-defense or preemption,” he says.

That the announcement of the “new” doctrine of preemption came as Iraq reemerged in the public consciousness is probably just coincidence, although they appeared to be linked by the news media. In fact, experts say the strategy has been brewing in the administration for some time. The timing, though, has significantly confused the public debate over the legality of attacking Iraq.

Wedgwood believes that even if the United States was unable to rely on UN resolution 687, it might still have a right to attack Iraq. She points out that Iraq has recently engaged in two wars of aggression against Iran and Kuwait, has used weapons of mass destruction (for instance, by gassing the Kurds) and shows a commitment to developing more of these weapons, and “has flirted with terrorists.”

Moreover, she warns that although going through the UN Security Council provides welcome political support, the bureaucracy can be terribly slow, like heading into “seaweed and you never get out.” By entering in the UN’s bureaucratic process, the United States could lose control of the timing of an attack and be slowed down by overly ponderous weapons inspections, and a return to the Security Council might appear to be a concession.

Despite the pitfalls of international consensus building, most lawyers believe on pure policy grounds that the United States should not act unilaterally unless to protect itself. “I think that going it alone is a bad idea because you can’t do it alone,” says Feinstein. “This should not be America’s war against Saddam. It should be as much as possible the international community’s . . . to deal with Saddam’s weapons of mass destruction.”

Preference of Policy
John Norton Moore wonders if the doctrine of preemption’s phrasing resulted from the administration’s “failure to understand the actual scope of the use of force under the United Nations charter.” It may also be, he says, that the Bush administration “knows less about international law” and has “sort of a neorealist” philosophy.

Nevertheless, the Bush administration has a reputation for being unilateral and the president himself for being unworldly. If the strategy had been issued by a different administration, the doctrine of preemption might not have received as much press attention.

The Bush administration’s foreign policy is certainly different from the Clinton administration’s. According to Lee Feinstein, “We used to say in the Clinton administration, when it came to the use of force, ‘With others when we can, alone when we must.’ This administration puts it the other way around: ‘Alone when we can, with others when we must.’ ”

Like the Clinton administration, says Feinstein, the Bush administration wants to preserve American hegemony in the world. Only their approaches have been fundamentally different. The Clinton administration believed that coalitions support the international rule of law and bolster America’s strength throughout the world. The Bush administration, however, views that attitude as a “trap” that will eventually erode America’s strength throughout the world.

Critics of the doctrine of preemption worry that unilateral decisions regarding the use of force may lead to escalating violence and ultimately to a reduction of American power abroad. Supporters worry more about the United Nations’ inability to prevent aggression and lack of faith in international institutions.
     “I think what’s made me truculent through the nineties is watching the UN not act,” says Ruth Wedgwood.

The national security strategy is actually full of language in support of a multilateral approach to international problems and peace through nonmilitary means. And in November, after the interviews for this article were conducted and despite its reputation, the Bush administration sought and received a UN Security Council resolution providing for renewed weapons inspections in Iraq.

The doctrine of preemption has yet to be fully fleshed out, and before it arrived the international law of self-defense was not well settled. The result is that experts essentially argue policy positions based on the Rorschach blot of customary international law.

“Like any other doctrine of law,” says Juliette Kayyem, “we can all sit here and debate what falls into customary international norms. . . . In the end, our legal analysis is pretty much guided by our policy preferences.”

Stephen Murdoch wrote about accepting corporate responsibility in the November issue.