The University Center for Human Values Series

Preemption and Prevention in International Conflict

Michael W. Doyle, Stephen Macedo

• Publisher: Princeton University Press
• Year: 2011
• ISBN:
  9781400829637
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

Does the United States have the right to defend itself by striking first, or must it wait until an attack is in progress? Is the Bush Doctrine of aggressive preventive action a justified and legal recourse against threats posed by terrorists and rogue states? Tackling one of the most controversial policy issues of the post-September 11 world, Michael Doyle argues that neither the Bush Doctrine nor customary international law is capable of adequately responding to the pressing security threats of our times.
In Striking First, Doyle shows how the Bush Doctrine has consistently disregarded a vital distinction in international law between acts of preemption in the face of imminent threats and those of prevention in the face of the growing offensive capability of an enemy. Taking a close look at the Iraq war, the 1998 attack against al Qaeda in Afghanistan, and the Cuban Missile Crisis, among other conflicts, he contends that international law must rely more completely on United Nations Charter procedures and develop clearer standards for dealing with lethal but not immediate threats.
After explaining how the UN can again play an important role in enforcing international law and strengthening international guidelines for responding to threats, he describes the rare circumstances when unilateral action is indeed necessary. Based on the 2006 Tanner Lectures at Princeton University, Striking First includes responses by distinguished political theorists Richard Tuck and Jeffrey McMahan and international law scholar Harold Koh, yielding a lively debate that will redefine how--and for what reasons--tomorrow's wars are fought.

STRIKING FIRST

MICHAEL W. DOYLE

When should states go to war in order to protect themselves? When, that is, are they justified in employing either armed force or other warlike coercive measures, such as blockade and sanctions, for anticipatory self-defense?¹ Must they wait, as international law currently holds, for an “armed attack” to have already taken place or to be so imminent that it is, as customary international law holds, “overwhelming” in its necessity and so “imminent” as to leave “no choice of means” and “no moment for deliberation”?²

The traditional conception of self-defense allowing only for imminent preemptive anticipation of planned attacks is clearly rejected in current U.S. strategic doctrine. Despite attempts to adopt preemptive terminology, President Bush reiterated his and the U.S. government’s commitment to a much more preventive anticipation of threats posed by those who share a “murderous ideology.” He declared, on June 28, 2005, at Fort Bragg:

After September the 11th, I made a commitment to the American people: This nation will not wait to be attacked again. We will defend our freedom. We will take the fight to the enemy.

Iraq is the latest battlefield in this war. Many terrorists who kill innocent men, women, and children on the streets of Baghdad are followers of the same murderous ideology that took the lives of our citizens in New York, in Washington, and Pennsylvania. There is only one course of action against them: to defeat them abroad before they attack us at home.³

President Bush is now (winter 2006) focusing on the threat he perceives from Iran. In a recent speech in Salt Lake City to the American Legion convention, he declared: “The world now faces a grave threat from the radical regime in Iran. We know the depth of the suffering that Iran’s sponsorship of terrorists has brought. And we can imagine how much worse it would be if Iran were allowed to acquire nuclear weapons.” After blaming Iran for supporting Hezbollah violence, supplying the insurgents in Iraq with weapons, and denying basic human rights to its own population, President Bush concluded: “There must be consequences for Iran’s defiance [of the UN Security Council resolution mandating a halt to nuclear fuel reprocessing] and we must not allow Iran to develop a nuclear weapon.”⁴ A few days later, Israeli minister Jacob Edri said that a military strike against Iran, limited to its nuclear facilities, is inevitable before President Bush completes his second term.⁵

In these essays, I will examine the distinction—which the president elides—between acts of preemption in the face of an imminent threat of armed attack and acts of prevention undertaken in order to forestall, for instance, the acquisition of threatening capabilities. This distinction is a question of substantive norms or rules. I will also explore the significance of multilateral authorization by the UN Security Council, which is a question of procedure for authorizing the use of force. Thus these essays will explore the ethics, politics, and law of anticipatory self-defense. I will focus both on what the law is and what states should do.

In my first essay, I address what I see to be the main problem: both international law, as it is currently formulated, and the Bush Doctrine of prevention are inadequate for today’s global security environment. My true aim, however—given those first judgments—is to propose in my second essay better preventive standards for war and warlike measures short of war that would produce more security for the United States and most other states interested in a law-abiding world.

¹ I am thus interested in the full range of the spectrum of “war”—the enforcement measures in UN Charter Chapter VII, from compulsory sanctions, through blockades and armed actions by land, sea, and air, to invasion and armed occupation.

² “Armed attack” is the standard in Article 51 of the Charter of the United Nations. Imminence is the standard defined in U.S. Secretary of State Daniel Webster’s famous words in the Caroline case in 1842. See John Bassett Moore, A Digest of International Law, 217 (GPO, 1906), 2:412; and R. Y. Jennings, The Caroline and McLeod Cases, 32 Am. J. Int’l L. 82 (1938).

³ George W. Bush, “Address to the Nation on the War on Terror from Fort Bragg, North Carolina,” Weekly Compilation of Presidential Documents 41, no. 26 (28 June 2005): 1079–84; see also George W. Bush, “Remarks to the National Endowment for Democracy,” Weekly Compilation of Presidential Documents 41, no. 40 (6 October 2005): 1502–8. In his remarks to the National Endowment for Democracy, President Bush claimed, “The murderous ideology of the Islamic radicals is the great challenge of our new century.”

⁴ Anne Gearan, Associated Press, “Bush Warns Tehran Anew on Nuclear Weapons Program,” August 31, 2006. But at the same time, Russia, China, and Germany all have ruled out the use of force against Iran, while leaving the door open to other sanctions if Iran fails to halt its enrichment of nuclear fuel. Louis Charbonneau, Reuters, “Germany Says Iran Can’t Be Allowed to Harm U.N.,” September 6, 2006.

⁵ “Minister nennt Militärschlag gegen Iran unvermeidbar” [Minister calls military strike against Iran unavoidable], Die Welt, September 5, 2006, http://www.welt.de/data/2006/09/05/1024315.html.

INTERNATIONAL LAW AND CURRENT STANDARDS

The problems with existing international law and standards are fourfold: first, the substantive rules are inadequate; second, the Bush Doctrine is subjective and dangerous; third, United Nations procedural rules do not adequately fill the subsequent gap; and fourth, unlike the case of domestic emergencies, breaking the law in the international context—and relying on excuse and mitigation as a framework for order—does not serve well. I will spend most of this essay on the first point.

Substantive Rules:
Self-Defense and Preemptive Self-Defense

Substantive rules for both self-defense and preemptive self-defense exist, but neither set is adequate. Conventionally, states must wait for an “armed attack” to have already occurred, as provided in Article 51 of the UN Charter, or to be so imminent as, under customary international law, to be “overwhelming” in its necessity, leaving “no choice of means” and “no moment for deliberation.”¹

Self-Defense

Even the right of self-defense in the event of an armed attack is not as clear as it might seem. In Nicaragua v. The United States of America (the “Nicaragua Case”), the International Court of Justice (ICJ) refused to countenance that the United States was acting in collective self-defense of El Salvador when it used force against Nicaragua. The United States claimed that Nicaragua’s provision of weapons and supplies to Salvadoran rebels constituted an “armed attack” to which the United States was merely responding, in support of El Salvador. Noting that the alleged supplying by Nicaragua was itself unproven, the ICJ went on to hold that merely providing weapons to insurgents was not sufficient to qualify as an armed attack, unless (they seemed to imply) its scale was equivalent in effect to a cross-border armed invasion.²

In deciding the Nicaragua Case, the ICJ was working, in part, from a “Definition of Aggression” created by the UN General Assembly. Though its language is not definitive or exclusive, the UN General Assembly declared in 1974 that the “Definition of Aggression”—illicit armed attacks—includes the first use of unauthorized armed force as well as invasion, military occupation, bombardment, blockade of ports or coasts, attacks on land, sea, or air forces, and the sending of armed groups against another state.³

Self-defense, however, is more problematic than a laundry list of illicit attacks suggests. A leading text on self-defense defines its legal elements, whether individual or collective, by stipulating that self-defense must be: (1) motivated by defensive concern—that is, it must not be an excuse for looting or a reprisal for past acts; (2) designed to stop an ongoing armed attack, prevent its continuation or reoccurrence, or reverse its consequences (e.g., overthrow an illegal occupation); (3) directed against the responsible party, which was traditionally understood to be a state but since 9/11 may be a terrorist group; (4) limited to the use of only necessary and proportional means; and (5) reported to the Security Council, as required by Article 51.⁴

The first element precludes predation. The second, “ongoing armed attack,” element is designed to prohibit unilateral preventive wars. It incorporates preemptive responses to imminent threats, as provided under customary international law and as intended by the wording of Article 51’s “inherent” right of self-defense.⁵ The third, “responsible party,” element looks for a strong connection between the response and the source of the threat. If the state of origin controlled or supported the attackers, it could be subject to a defensive response. But some have also argued that failure to control the attackers implies culpable responsibility. While the criteria embodied in the fourth element—necessity and proportionality—do constrain legal self-defense, they do not require a “tit-for-tat” response. For example, the United States was not limited to sinking an equivalent number of Japanese battleships in response to Pearl Harbor, but rather could take those measures necessary to end the ongoing threat, even if they included an armed invasion of the aggressor to force it to accept a reliable peace. In these circumstances, proportionality would be secured if the laws of war (jus in bello) were followed. Fifth, and finally, the requirement of reporting to the Security Council reflects the council’s role as the body primarily responsible for global peace and security. This requirement also reflects the council’s authority to order the parties to cease and desist or to intervene if council members determine that such a course would best promote international peace and security.

The Caroline and Preemption

Customary international law on self-defense undoubtedly includes legitimate preemptive responses. But does it provide a sufficient standard to cover threats that are not imminent? The nineteenth-century case of the Caroline provides the widely accepted standard on this issue.⁶ Despite its classic status, the incident is a curiously inapt test for preemptive self-defense.

The Caroline incident involved a dispute between the United States and the British Empire that occurred in 1837 after an extended crisis in Canadian-American relations. A spate of rebellions had pitted disaffected French-Canadian smallholders against their landlords in Quebec, as well as recent immigrants from the United States against the British landed establishment in the western province of Ontario. Both conflicts leached across the border into the United States, which served as a refuge for the so-called Patriot rebels led by W. L. Mackenzie.

On the night of December 29, 1837, fifty-six Canadian militiamen in seven boats under the command of Royal Navy Commander Andrew Drew set off from Chippewa on the British-Canadian side of the Niagara River to destroy an American steamer, the Caroline. The Patriot rebels had leased the Caroline to supply their forces, and the Canadians believed that the Caroline was at Navy Island, a British-Canadian territory in the middle of the river. Colonel Allan MacNab, the commander of the militia in Chippewa, directed Commander Drew to launch his attack of seven boats against the Caroline at Navy Island. When Drew found that the Caroline was not at Navy Island, however, he and five of his seven boats floated downstream to the U.S. town of Fort Schlosser, where they found the Caroline berthed. Drew landed his forces, surprising the sleeping rebels on board the Caroline, and seized the ship. He later said that his forces killed five to six rebels, although local reports at the time trumpeted much ...

Table of contents

• Cover
• Half title
• Title
• Copyright
• Contents
• Acknowledgments
• Introduction
• Striking First
• Contributors
• Index