Pre-emption and the Use of Force in International Law
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The basic elements of pre-emption were articulated by President Bush in the National Security Strategy of the United States (US)
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In 2002, the Bush administration articulated, the doctrine of pre-emptive self-defence in its National Security Strategy (NSS) as an essential component of the war on terror. This immediately generated an ongoing controversy regarding the relationship between the doctrine of pre-emption and the existing law relating to the use of force – the law of the United Nations Charter1. This paper examines some of the legal arguments that surround the legitimacy of the doctrine of pre-emption, while also examining, from a historical perspective, some of the broader implications of pre-emption for the system of international law and relations as a whole. While some advocates of pre-emption have asserted that it is illegal, others have suggested that pre-emption does no more than reflect existing international law – an international law that is suitably adapted to take into account the contemporary realities of terrorism. The argument that pre-emption is necessary, desirable or legal is largely based on the view that the challenges and dangers that confront the international community are unprecedented, and require a new system of international order and a revision of existing international law.
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For 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. Legal scholars and international jurists often condition the legitimacy of pre-emption on the existence of an imminent threat – most often a visible mobilisation 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
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The United States has long maintained the option of pre-emptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction – and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the
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Hereinafter, ‘the Chapter’
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2 President George W. Bush. The National Security Strategy (NSS) of the United States of America, Part V, September 17th 2002 (available al <www.whitchouse.gov/nsc/nssall.html>)
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time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively.
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The United States will not use force in all cases to pre-empt emerging threats, nor should nations use pre-emption as a pretext of aggression. Yet in an age where the enemies of civilization openly and actively seek the world’s most destructive technologies, the United States cannot remain idle while dangers gather.
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This argument regarding pre-emption appears to be contrary to the restrictions imposed on the use of force by Article 51 of the United Nations Charter, which reads in part that, ‘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’ (UN). Self-defence then is premised on the previous occurrence of an ‘armed attack’.3 It is this fundamental premise of the system of the Charter that is being challenged by what might be termed the ‘Bush Doctrine. Further elaboration on this doctrine has been offered by the Legal Adviser to the State Department who has offered a more restrained version of the pre-emption doctrine which focuses on the concept of an ‘imminent threat1:
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After the exhaustion of peaceful remedies and a careful consideration of the consequences, in the face of overwhelming evidence of an imminent threat, a nation may take action to defend its nationals from unimaginable harm.
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Despite its clear departure from the principles of Article 51 of the Charter, various arguments have been made to the effect that the ‘Bush Doctrine’ is consistent with the law of the Charter and with international law more generally or, at the very least, that the Charter should be read in such a manner to permit the doctrine. Thus Professor Elizabeth Zoller argues that ‘it is not implausible to interpret Article 51 of the Charter as embodying the right to pre-emptive self-defence on the ground that it is necessarily implied by a sound construction of the instrument, or alternatively on the ground, that, notwithstanding the clear words of Article 51. any other interpretation of the Charter would be absurd.’5
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Pre-emptive self-defence, or anticipatory self-defence, to use a term that is more common in the earlier literature on this perennial subject, has always posed a difficult
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The meaning of ‘armed attack’ has been extensively analysed by the International Court of Justice in the “Case Concerning Military and Paramilitary Activities in and Against Nicaragua”. See, Nicaragua v United States, 1986 I.C.J. 14(June 27)
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William H. Taft IV, Legal Adviser, Department of State, The Legal Basis for Pre-emption, November 18th 2002, (available at <http://www.cfr.org.publkatiorti>)
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See, Zoller, Elizabeth., “The Law Applicable to the Pre-emption Doctrine”, Proceedings of the 98th Annual Meeting of the American Society of International Law, 2004 at p.333
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problem both to ‘just war’ theory and to international lawyers. As Richard Tuck argues, the doctrine of pre-emption is “clearly a morally fraught matter, as by definition the aggressor has not been harmed, and his judgment about the necessity of his action might well be called into question both by the victim and the neutral observer”. Nevertheless, international lawyers have argued that this form of self-defence should be permitted as a State cannot wait until it is actually attacked before taking action. Consequently, the famous words of Daniel Webster in the Caroline Case have been invoked to argue that pre-emptive self-defence is permissible in the narrow circumstance where there is a ‘necessity of self-defence instant, overwhelming, leaving no choice of means and no moment of deliberation.’7
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The question of whether the doctrine articulated in the Caroline survived the UN Charter remains a subject of scholarly debate. Nevertheless, even if this is the case, it is clear that the ‘Bush Doctrine’ expands the right to anticipatory self-defence well beyond the circumstances identified in the Caroline. President Bush, by asserting that ‘The United States will not use force in all cases to pre-empt emerging threats, nor should nations use pre-emption as a pretext for aggression’, raises the very difficult question of how pre-emption is to be distinguished from aggression. Further, equally significantly, the statement makes it clear, if only by implication, that not only imminent threats, but emerging threats, may be a justifiable reason for resort to pre-emption. Both the Charter and the Caroline Case, at least as they have been Traditionally understood, cannot support the ‘Bush Doctrine.
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Arguments asserting that the ‘Bush Doctrine is consistent with international law rely, then, on the view that both the Charter and the Caroline doctrine should be interpreted in a manner consistent with contemporary realities -‘the capabilities and objectives of today’s adversaries’, terrorists and rogue regimes that seek to use Weapons of Mass Destruction (WMD). These arguments are problematic for several reasons. Who is to decide that this is the authoritative interpretation of the UN Charter? Many States, including many non-aligned States, have resisted the policies articulated in the National Security Strategy, and, indeed, Secretary-General Annan himself has asserted that the doctrine of pre-emption ‘represents a fundamental challenge to the principles on which, however imperfectly, world peace and stability have rested for the last fifty-eight years,8 These responses scarcely support the view that pre-emption has become a part of the accepted system of international law.
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Despite this, a number of arguments have been made to the effect that the ‘Bush Doctrine’ simply represents current realities, and if the United Nations foiled to recognise these realities, it would simply lapse into irrelevance – if it has not already
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Tuck, Richard., The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant, New York, Oxford University Press, 1999
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Address by Kofi Annan to the General Assembly of the United Nations (UNGA), September 23 2003. Sec, Press Release SG/SM/8891 (available at <http://www.un.org/News/Press/docs/2003/sgsm 8891 .doc.htm>)
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done so.9 What are the consequences that might follow if indeed pre-emption did become a part of international law? All sovereign States are equal. Given that self-defence is arguably the central and most fundamental right of the sovereign, it would follow that the right of pre-emptive self-defence will be enjoyed by all States. Such a doctrine would surely generate enormous instability, given the various tensions that exist between States. It might also be argued that if the right to pre-emptive self-defence is a part of existing international law, then both North Korea and Iran have, arguably, a strong legal right to attack the United States. After all, both of those States were included together with Iraq in the notorious ‘Axis of Evil’ identified by President Bush. Given the ongoing tensions between the United States and Iran, and the fact that one member of that axis, Iraq has already been attacked, it would seem perfectly permissible for Iran to argue that it is justified in attacking pre-emptively. However the very invocation of this example suggests that even though self-defence is the most basic of sovereign rights, pre-emptive self-defence is a right that the United States intends to be confined only to itself and its allies. How then, is an ostensibly universal right to be confined only to a selected number of States, and on what basis is that selection to be made?
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One approach is for the United States to accept that the right of pre-emption is indeed universal, knowing full well that no rational State would dare to openly and directly even purport to attack the one global super-power, the United States. Within this framework, the idea of sovereign equality that continues to play such an important role in the international system may be officially preserved because the realities of international relations will ensure that powerful States those which have the capacity to inflict massive destruction on any opponent, through the use of nuclear weapons if necessary – enjoy a special status even within an ostensibly egalitarian system. If, then, pre-emption does somehow become an accepted part of international law as a result of the ‘Bush Doctrine’, then the international order will come to resemble somewhat the system that existed among European States in the late nineteenth century. Under the positivist law of the nineteenth century, it was completely legal for States to go to war, the ultimate prerogative of the sovereign
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See, Glennon, Michael., “Why the Security Council Failed”, Foreign Affairs, May/June 2003, Vol.82, No,3, p. 16
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See for an illuminating analysis of the doctrine of sovereign equality and the United States: Krisch, Nico., “More equal than the rest? Hierarchy, equality and US predominance in international law”, United States Hegemony and the Foundations of International Law, Edited by Byers, Michael., and Nolle, Georg., Cambridge University Press, 2003, p. 135- 176
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Another aspect of the late nineteenth century parallel suggests a further line of argument that is being advanced in a more general way, and that may be applied to the doctrine of pre-emptive self-defence. This argument asserts that the world may be divided into democratic and non-democratic States, and that only democratic States have a right to pre-emptive self-defence. The lineage of this sort of argument may be traced back at least to the work of Kant, whose idea of world peace is based on a distinction between liberal and non-liberal States.11 The basic idea here is that international law provides a very weak system of law and enforcement, and the most effective constraints on a State’s exercise of power derives from its internal political order. According to this view, the liberal-democratic State and all the systems of accountability which it institutionalises, provides an effective check on government, and will ensure that governments do not resort to war without proper deliberation and a just cause. In non-civil, non-democratic States, however, no such constraint exists, and authoritarian rulers may condemn their own people to illegal wars of aggression and expansion. It follows then, that only liberal-democratic States should have a right to pre-emption because only they are subject to the mechanisms of accountability that ensure that this powerful right is exercised responsibly. This distinction between democratic and non-democratic States resembles in important ways the distinction made in nineteenth century international law between civilised States, which were members of the family of nations and enjoyed the comprehensive rights of sovereignty, and uncivilised States, which were excluded from the family of nations and were only partially sovereign at best. Contemporary international law, however, has abolished the distinction between civilised and uncivilised States. While the international community values democracy and has sought in various ways to promote it, the alleged distinction between democratic States and non-democratic States is not recognised in international law. Furthermore, there is a difficulty – which was evident in the nineteenth century itself – of how these distinctions are to be made and applied. Nineteenth century international lawyers found it difficult to distinguish between civilised and non-civilised States, and distinguishing between democratic and non-democratic States could prove to be equally problematic. Further, the many mistakes and errors of judgement made by the United States and United Kingdom in the time preceding the war in Iraq suggest that democratic States are far from infallible.
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Given the threats that pre-emption presents to the international system – and all the ways in which pre-emption can disadvantage Third World States, which will be the inevitable object of the exercise of the doctrine, it is hardly surprising that the vast majority of Third World States have responded against the threats made by the US to attack pre-emptively when necessary.
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119. The Heads of State or Government rejected the use, or the threat of the use of armed forces against any Non-Aligned Movement (NAM) country under the pretext of combating terrorism, and rejected all attempts by certain countries to use the issue of combating terrorism as a pretext to pursue their political aims against non-aligned and developing countries and underscored the need to exercise solidarity with those affected. They affirmed the pivotal
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See for an examination of the implications of Kant’s system to international law: Slaughter, Anne-Marie., “International Law in a World of Liberal States”, European Journal of International Law, 1995, Vol.6, p.504
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role of the United Nations in the international campaign against terrorism. They totally rejected the term ‘Axis of Evil’ voiced by a certain State to target other countries under the pretext of combating terrorism, as well as its unilateral preparation of lists accusing countries of allegedly supporting terrorism, which are inconsistent with international law and the purposes and principles of the United Nations Charter. These actions constitute on their part, a form of psychological and political terrorism.12
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Powerful States have almost invariably attempted to expand the circumstances in which they may use force.13 The ‘Bush Doctrine’ of pre-emption, then, represents yet another attempt to do so in the context of the new realities of terrorism. Even though it is vital, to examine the elements of this doctrine and the attempts to establish it as a part of international law, what is equally important is the attempt to understand its impact on the Third World, and the different legal, conceptual and political mechanisms by which the Third World will be both excluded from the doctrine, and become the subject of its application and elaboration. My argument up to now has been that even while the United States has been seeking to expand its own authority, this development must also be seen in context of the arguments that might be made to diminish the rights of Third World States, those who would be excluded from the new right of preemption.
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The doctrine of pre-emption may serve the purpose of warning other States that any attempt by them to arm themselves with Weapons of Mass Destruction (WMD) could be interpreted by the United Sates as a threat which could then result in the US exercising its right of pre-emptive self-defence. Starkly presented, pre-emption in effect purports to create a system whereby States can arm themselves only if they are permitted to do so by the United States. The example of Libya might provide one example of the sort of world that the United States and the West would seek to achieve, one in which only certain civilised States have an effective right of self-defence.
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The National Security Strategy however does not focus only on pre-emption, even though pre-emption is a crucial part of the whole structure. Pre-emption is connected, on one hand, with the concept of ‘Rogue States’ – the most prominent of which constitute the ‘Axis of Evil’. These are the States that are most likely to be the subject of pre-emptive attack. In addition, President Bush has made it clear, both in the NSS and subsequent speeches, including his speech at the Republican National Convention that the most effective way of combating terrorism is to transform rogue States into democratic States. Thus the NSS seeks to promote ‘moderate and modern government, especially in the Muslim world to ensure that the conditions and ideologies that promote terrorism do not find fertile ground in any nation.’1 Taken together, these
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Final Document of the XIII Conference of Heads of State or Government of the Non Aligned Movement, Kuala Lampur, February 24 – 25 2003, paragraph 119 (available at <www.nam.gov.za/media/030227e-hrm>)
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11 See for the attempts of the United States in this respect: Kohen, dMarcelo G., “The use of force by the United States after the Cold War, and its impact on international law”, United States Hegemony and the Foundations of International Law, Edited by Byers, Michael., and Nolte, George., Cambridge University Press, 2003, p, 197 – 232
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policies of pre-emption and transformation resemble in many ways an imperial policy, an attempt to civilise the world, by force where necessary, in order to ensure the security of the United States. Not only have these policies been understood as imperial, but prominent scholars such as the historian Niall Ferguson have argued that an imperial United States is essential for the preservation of world order.
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Iraq presents a concrete example, in all its complexities of the National Security Strategy in action. In strictly legal terms, the United States has not as yet invoked or justified any of its actions by resorting to the doctrine of pre-emption. The invasion of Iraq has been explained, as action taken pursuant to the Security Council decisions relating to Iraq. This argument, of course, has been resisted by many prominent international lawyers who continue to insist that the United States and coalition forces violated international law when they invaded Iraq. Furthermore Kofi Annan himself asserted that the Iraq war was illegal. Whatever the official rationale for the action, however, the Bush administration’s extraordinary and undeniable emphasis on the threat posed by the alleged Iraqi WMD to American security makes it impossible to exclude Iraq from any discussion on pre-emption. Iraq all too graphically illustrates the security concerns and policies of the United States, and the many problems associated with the ‘Bush Doctrine’. Pre-emption must be based on sound, if not overwhelming evidence, for it is only such a threshold that could justify the extraordinary measure of the pre-emptive use of force. The US Secretary of State, Colin Powell purported to present such overwhelming evidence when appearing before the UN and urging the international community to join in and support the invasion of Iraq. However the absence of WMD and the complete failure of intelligence suggest the many problems associated with this entire policy. The international credibility of the United States has suffered considerably as a result of this failure. Quite apart from that, the Iraq example raises the question: if, argued, pre-emption is now a part of international law, what are the legal consequences that follow when a country engages in a pre-emptive attack that is then proved to be based on a completely mistaken belief that it was being threatened?
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The attempt to make Iraq a democratic State illuminates a further and far reaching aspect of the NSS. The basic argument here is that democratic societies are less likely to produce terrorists, and that, therefore, Middle Eastern States must be transformed into democratic States. When democratic change is imposed through force, however, there is a great risk that it will be ineffective, and that it will further radicalise the societies that are the objects of these endeavours. What is also illuminating about this project is the deployment of what we might term ‘humanitarian’ or ‘Human Rights’ arguments for imperial purposes. The effectiveness of the Bush strategy of using human rights to justify the invasion of Iraq is suggested by the number of human rights advocates who supported the US actions as a result. It is equally clear that the whole imperial project, as articulated by the Bush administration, has taken on a new urgency because the transformation of the world is connected to self-defence. Thus, the whole discourse of Human Rights has become now connected to this larger goal. As President Bush has put it:
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Our security is not merely founded in spheres of influence or some balance of power, the security of the world is found in advancing the rights of mankind. These rights are advancing across the world. And across the world, the enemies of human rights are responding with violence. Terrorists and their allies believe the Universal Declaration of Human Rights and the American Bill of Rights and every charter of liberty ever written are lies to be burned and destroyed.
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Terrorists undoubtedly pose an enormous threat to Human Rights. But Human Rights advocates and scholars must surely be wary of a version of Human Rights that is profoundly shaped by the security interests of the United States. What this, and the Iraq example suggests, is a Human Rights transformed into a vehicle of imperialism. Thus it is not only the law relating to the use of force, but international Human Rights law that may be transformed by the ‘Bush Doctrine’.
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It is in this contentious context that the recently released Report of the High-level Panel on Threats, Challenges and Change16 is especially welcome. The comprehensive report cannot be analysed in detail here. At least for the purposes of this paper, what is notable about the Report is its stance against what it terms ‘preventive unilateral action’, and its insistence that the Charter, as it is currently drafted, can effectively address the threats that the Bush pre-emption doctrine is intended to respond to. The report makes a distinction between ‘pre-emptive self-defence’, which is self-defence against an ‘imminent or proximate threat’ (something akin to the Caroline doctrine)
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190. …if there are good arguments for preventive military action, with good evidence to support them, they should be put to the Security Council, which can authorize such action if it chooses to. If it does not so choose, there will be, by definition, time to pursue other strategies, including persuasion, negotiation, deterrence and containment – and to visit again the military option.
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191. For those impatient with such a response the answer must be that, in a world full of perceived potential threats, the risk to the global order and the norm of non-intervention on which it continues to be based is simply too great for the legality of unilateral preventive action, as distinct from collectively endorsed action, to be accepted, Allowing one to so act is to allow all.
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Address by President Bush to the United Nations General Assembly, September 21″ 2004.
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Report of the High-level Panel on Threats, Challenges and Change – A more secure world: our shared responsibility, released on December 2* 2004, UN Doc. A/59/565. Hereinafter ‘A more secure world’
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” ibid para.191,192, p.55
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The Report raises complex questions as to how a distinction can be made between ‘pre-emptive’ and ‘preventive’ self-defence, and States unhappy with the performance of the Security Council in the lead up to the second Iraq war are unlikely to be satisfied with this affirmation of the decisive role of the Council in addressing issues relating to the use of force when States feel threatened. However the approach of the Report is to be welcomed because of its emphasis on the continuing validity of the Charter, and its underlying support for the principle of the sovereign equality of States: whatever the power disparities between States, and other institutionalised inequalities, it will be open to any State that fears an emerging threat to approach the Security Council for action.
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The international system has suffered a number of traumas since 9/11, and it is perhaps too early to assess the lasting impact of these events on international law and organisation. Clearly, however the doctrine of pre-emption and the war in Iraq suggest some of the major issues that must be addressed. Proponents of the United States position on pre-emption have forcefully argued that if the United Nations itself does not adapt to meet new realities of terrorism and, in effect, institutionalise and support the United States position on the use of force, then the United Nations would render itself irrelevant and ‘go the way of the League of Nations’.” Indeed, taken further the argument has been made that pre-emption and all it involves in fact advances the causes that the United Nations is concerned about.20 These arguments might be viewed with justified scepticism, given that the whole war waged on Iraq, which was never authorised by the United Nations, was ostensibly undertaken in the name of enforcing Security Council Resolutions. For scholars interested in the relationship between the Third World and international law, what is evident is the resemblance between the new initiatives that are being proposed by the ‘Bush Doctrine’, and much earlier imperial themes. A United Nations that is transformed to accommodate the ‘Bush Doctrine’ will simply become a vehicle of this ‘new’ imperialism21 and Third World countries have not been slow to recognise this reality. All this will have serious consequences for the legitimacy of the UN – and this at a time when the UN is arguably more important than ever because the international community must respond effectively to the threats posed by terrorism. It seems to me that this threat can only be addressed on a multilateral basis. Many Third World States have suffered terrorist attacks, long before 9/11, and are seeking to address the dangers of terrorism in concert with other nations. While Security Council action, such as the passage of Resolution 1373 (2001) might assist in this process, the continuing importance of a comprehensive treaty addressing the problem of terrorism cannot be underestimated because such a treaty would enjoy
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” Hill, Charles., “The Bush Administration Doctrine of Pre-emption”, American Society of International Law (ASIL) Proceeding, 98th Annual Meeting, 2004, p.331
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10 See, Softer, Abraham D, On the Necessity of Pre-emption”, European Journal of International Law, 2003, Vol. 14, No.2, p.225
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See, Alvarez, Jose., ‘Hegemonic International Law Revisited”, American Journal of International Law, 2003, Vol. 97, p.873
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the particular legitimacy that derives from the fact that it was arrived through a process of multilateral negotiation. The continuing work of the Sixth Committee has been making important contributions in this regard.22
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The argument that the US National Security Strategy could reinstate an imperial order and is therefore against all the principles that modern international law – the law of the United Nations that was developed in part to negate the old imperial international law of the nineteenth century – is not in itself decisive. For what we now face is the argument made by influential academics and diplomats such as Niall Ferguson and Robert Cooper, that what this disorderly and unstable world requires is in fact a return to an imperial system. This imperialism, in the words of Cooper, is ‘a new kind of imperialism, one acceptable to Human Rights and cosmopolitan values.’ This statement in itself suggests that Human Rights law is compatible with imperialism rather than somehow inherently opposed to it. But more than that, these arguments assume, quite apart from anything else, that imperialism in its most explicit forms can be a viable and sustainable policy in the twenty-first century. The United States forces were widely regarded as the most powerful that have existed in the history of world
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Finally, Third World States and peoples, whatever the difficulties they suffer from, are not likely to readily acquiesce to the return of explicit imperialism of this sort. The question remains open as to whether international law, an international law that has ostensibly repudiated the imperialism of the past, will now resist these attempts to reinstate this new imperial order. The report on ‘A more secure world’ is an encouraging step in this direction.
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See, Measures to eliminate international terrorism: Report of the Working Group, October 8th 2004, UN Doc. A/C.6/59/L10
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Cooper, Robert., “The New Liberal Imperialism”, The Observer, April 7* 2002
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