Anticipatory Self-defense in the 21st Century

Anticipatory Self-defense
In the 21st Century

By
B.E.N.
June 6, 2005

Thesis…
The events of 9/11 and the actions of the United States thereafter have thrust the issue of preemptive force to the forefront of international legal debate. The historical understanding of anticipatory self-defense revolves around conventional threats, but does this standard in a post 9/11 environment adequately deal with unconventional and catastrophic threats? Does international law have a special application in regards to the use of preemptive force towards terrorism and or weapons of mass destruction or should these be judged in the same light as conventional threats?

In the Beginning…
Legal justification for anticipatory self-defense goes back to the writings of Hugo Grotius in 1625. In his On the Laws of War and Peace, he states that, “when an assailant seizes any weapon with an apparent intention to kill me I have a right to anticipate and prevent the danger.” However, he qualifies this by pointing out that, “The danger must be immediate.”

Roughly a century later, Emmerich de Vattel penned in his The Law of Nations that the use of force is either an act of aggression, retaliation or, “to prevent one [war] which she [foreign force] is preparing to do, and thus avert a danger with which she seems to threaten us.” Vattel continues by justifying anticipatory self-defense with:

When a neighbour, in the midst of a profound peace, erects fortresses on our frontier, equips a fleet, augments his troops, assembles a powerful army, fills his magazines, — in a word when he makes preparations for war, — are we allowed to attack him, with a view to prevent the danger with which we think ourselves threatened? The answer greatly depends on the manner and character of that neighbour. We must inquire into the reasons of those preparations, and bring him to an explanation… and if his sincerity be justly suspected, securities may be required of him. His refusal in this case, would furnish ample indication of sinister designs, and a sufficient reason to justify us in anticipating them.

However, the modern model for the use of anticipatory self-defense was put forward by former U.S. Secretary of State Daniel Webster in his correspondence with Great Britain over the sinking of the Caroline by British forces in 1837. In his letters to Lord Ashburton, Webster concedes that states reserve the right to self-defense but that certain criteria must be met to justify the action. He asserts that the state must, “show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” Webster further asserts that, “even supposing the necessity of the moment… the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it,” thus adding that an element of proportionality exists for the action.

The United Nations and the Use of Force…
The Charter of the United Nations was developed in the aftermath of the Second World War with the intended goal of, “[saving] succeeding generations from the scourge of war.” One of the strongest articles within the document towards this end is article 2(4) which states that, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

The use of force is authorized within the charter in two locations and for two purposes only. The first is in article 42, which authorizes the UN Security Council (UNSC) to use force to enforce resolutions and or to restore peace in international conflict. It states:

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”

The second lies in article 51, which deals with the issue of self-defense. It 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, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

So the charter clearly asserts that member states are not to use force ever in an aggressive manner, unless sanctioned and under the auspices of the UNSC or in self-defense. Of note in article 51, it asserts the right of a state to defend itself “if an armed attack occurs,” but does the statement imply that if and only if an attack occurs, which would thereby remove any justification for anticipatory action. Customary international law has supported a states right to anticipatory self-defense for centuries, so can it be assumed that states who sign the charter have surrendered this right? In the judgment of Hans Koechler, chairman of the Philosophy Department at the University of Innsbruck, article 51 limits defensive actions. He has said that he is, “skeptical about this possibility [for preemptive action], because the wording of Article 51 of the [UN] Charter, in my interpretation, relates to attacks post factum. I do not see how one might interpret Article 51 in a way as to justify preventive war or preventive strikes.”

Further complicating the issue, article 2(4) specifically prohibits the threat of force against “the territorial integrity or political independence” of a state, but the question that arises from this is if a state’s territory is not threatened, nor is its political independence, then is military action prohibited? This was the justification used by the British in their seizing of the Suez Canal with the French from the Egyptians in 1956. The United Kingdom argued that their action was in defense of the international waterway and was not intended to harm the territorial integrity of Egypt or affect its political independence and was therefore not in conflict with the UN Charter.

But as Terence Taylor, the President and Executive Director for the International Institute for Strategic Studies, has pointed out, states have been reluctant to justify their actions as anticipatory self-defense. For one he notes the US blockade of Cuba was justified under Chapter VIII of the UN Charter, which deals with regional arrangements and was claimed to be a regional peacekeeping effort. Even in the aftermath of the Arab-Israeli 6-Day War, Taylor states that Israel justified it actions, not as anticipatory self-defense but instead announced that a state of war continued to exist between Egypt and Israel from the 1956 conflict. He continues that when Israel did claim anticipatory self-defense in its 1981 attack on the Iraqi nuclear reactor in Osirak, “the international community roundly condemned them.”

The restrictionist view on anticipatory self-defense agrees with the literal translation that article 51, affirming that states must wait until an actual attack happens before the use of force is legitimized. Moreover, Dr. Christine Gray, a stern critic of preemptive force, asserts that the “[reluctance] expressly to invoke anticipatory self-defense is in itself a clear indication of the doubtful status of this justification for the use of force.”

Proponents of preemptive force claim, however, that the reference to an “inherent right” is evidence that the charter was not to replace conditions of self-defense established prior to the charter. As Judge Schwebel, formerly of the International Court of Justice (ICJ), quotes H. Lauterpacht in his dissenting opinion in the Nicaragua v. United States of America, “the right to use force… in self-defense constitutes a permanent limitation of the prohibition of recourse to force in any system of law.” Sir Humphrey Waldock, another former justice to the ICJ, continues that, “It would be a travesty of the purposes of the Charter to compel a defending state to allow its assailant to deliver the first, and perhaps fatal, blow… To read Article 51 otherwise is to protect the aggressor's right to the first strike.”

Unfortunately, even though several opportunities have presented themselves to shed some more light on the guidelines of anticipatory action (such as the Nicaragua case); the international community has thus far sidestepped the issue. This has thus left a deficit in consensus on what constitutes a justification for anticipatory self-defense in the eyes of the United Nations and the international community in general beyond what was established in customary international law prior to the charter.

Necessity, Imminence and Proportionality…
As stated by Webster, necessity, imminence and proportionality are needed to justify the use of preemptive force. These criteria have continued to be echoed through the years by various academics with little change. However, where the change has come in, it has been in addressing threats of an unconventional or catastrophic nature.

The first step in determining whether anticipatory action is justified is by reviewing the nature of the threat. The conventional or unconventional/catastrophic character of the threat impacts the criteria of anticipatory self-defense, and must be addressed differently between the two.

Conventional Threats…
Conventional threats are typically personified in classical military forces and are the types of threats envisioned by Grotius and Vattel. They are the armies, navies and air forces of the world and are the primary element of force used by the sovereign. These threats are easily identified in that they offer traditional military markings and are usually overt in nature.

Since conventional threats are typically an element of state government, therefore the politics of the state and thereby the character of the threat can be examined through the state’s actions and rhetoric. For example, removing international peacekeeping troops or closing strategic shipping routes such as international straits can illuminate the intentions or mens rea if you will of the aggressor. It is important to note that rhetoric alone is not enough to judge state intentions entirely; however, they do provide an amplifying effect to observed state action.

It is also important to note what the repercussions of inaction would be. If the state did not act preemptively, how would the perceived threat impact the security of the state? This is important in that while no state should sit idly by while their interests are damaged, however, tactical impacts do not carry the same level of necessity that a strategic impact would.

The capability of the threat is also important in determining the need for preemptive action, for theoretically, 100,000 medics on the border do not pose the same threat that 100,000 marines do. Therefore, when dealing with conventional forces, it is important to understand the capacity of the enemy threat, as best as possible, prior to any action.

Once the capability of the threat has been determined along with its character or perceived intentions, the state must question the imminence of the threat. Importantly, what is the location of the threat? Based off of the previously determined capability, location provides the single most relevant element of information in ascertaining imminence of the threat.

Further more, based on the capability of the threat, have the proper steps to realize its full potential been taken by the enemy? For example, if a threat is in the form of a missile attack, but the missiles are still crated and have not been set up in working order, then there exists more a potential threat as opposed to a realized one. However, if the systems are active and online, then the threat can be said to be real. There must also be a level of immediate need to deal with the threat that prohibits a peaceful undertaking by both sides.

Finally when determining the proportionality of the preemptive force, will the action be limited to what is necessary to stop or prevent the threat and is every element of the preemptive force needed for the threat, and if not, what is the purpose of the additional forces?

In light of the needed criteria for preemptive action towards conventional threats, it has become much more difficult to justify the need for anticipatory self-defense. With the technological advancements of the 21st century, it is hard to imagine that a state could not find open communication or diplomatic channels to voice concern over. Further more, it is less likely, given the global satellite coverage- both commercial and government- that a state could amass a large enough force to cause concern without being noticed prior to the point of imminence.

Webster’s criteria for anticipatory self-defense seem to satisfactorily address conventional threats in the 21st century, but what about unconventional and catastrophic threats?

Unconventional and Catastrophic Threats…
Unconventional threats are by definition different from conventional ones. While they may contain elements of conventional forces such as military Special Forces (US Navy SEALs, British SAS, etc), they are typically comprised of state paramilitary forces or non-state actors and can consist of guerilla forces, terrorist organizations or state intelligence agencies.

The US Department of Defense (DOD) defines unconventional threats or war as a:

[Broad] spectrum of military and paramilitary operations, normally of long duration, predominantly conducted by indigenous or surrogate forces, who are organized, trained, equipped, supported, and directed in varying degrees by an external source. It includes guerrilla warfare and other direct offensive, low-visibility, covert or clandestine operations, as well as the indirect activities of subversion, sabotage, intelligence activities, and evasion and escape.

When reviewing the criteria of anticipatory self-defense, it is important to understand the perceived threat that unconventional threats, particularly terrorism, and catastrophic threats, specifically Chemical, Biological, Radiological and Nuclear (CBRN) weapons present.

The closest the international community came to defining terrorism was in the convention of the League of Nations in 1937, which never came into existence. It stated terrorism was, "All criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public." Today the international community relies on 12 conventions to loosely define terrorism, but many states have not yet signed the conventions or have yet to enact them. The 2002 U.S. National Security Strategy (NSS) defined terrorism as, “premeditated, politically motivated violence perpetrated against innocents.” However, Alex Schmid, a terrorism expert, probably provides the best and most comprehensive definition of terrorism as:

… an anxiety-inspiring method of repeated violent action, employed by (semi-) clandestine individual, group or state actors, for idiosyncratic, criminal or political reasons, whereby - in contrast to assassination - the direct targets of violence are not the main targets. The immediate human victims of violence are generally chosen randomly (targets of opportunity) or selectively (representative or symbolic targets) from a target population, and serve as message generators. Threat- and violence-based communication processes between terrorist (organization), (imperilled) victims, and main targets are used to manipulate the main target (audience(s)), turning it into a target of terror, a target of demands, or a target of attention, depending on whether intimidation, coercion, or propaganda is primarily sought.

While the international community has not settled on a definition of terrorism itself, it has, as far back as 1954, condemned the support of international terrorist organizations. In the Draft Code of Offences against the Peace and Security of Mankind of 1954, written by the International Law Commission, it lists the following in article 2(4) as an offense to the peace and security of mankind:

The organization, or the encouragement of the organization, by the authorities of a State, of armed bands within its territory or any other territory for incursions into the territory of another State, or the toleration of the organization of such bands in its own territory, or the toleration of the use by such armed bands of its territory as a base of operations or as a point of departure for incursions into the territory of another State, as well as direct participation in or support of such incursions.

Meanwhile catastrophic threats have a clear definition and lie in the realm of weapons of mass destruction (WMD) or CBRN. These threats cause large numbers of acute casualties, long-term disease and disability, psychological trauma and mass panic. Either conventional or unconventional forces can use these, with the definitive difference lying in the overt or covert delivery of the weapon along with a state sanction of the action.

Fueling the necessity of preemptive action is the inability to deter terrorist groups, specifically Islamic ones, which accept and practice suicide operations. How can a state deter an organization willing to die for its beliefs and actually uses the death itself as a combative tactic? Couple this with the force multiplying nature of CBRN weapons and the argument for necessary preemptive actions is strengthened.

The intention of these groups continues to elucidate the necessity of action. The ideological and religious fervor of the actors and their willingness to sacrifice all, including their lives, removes elements of pacific settlement in contentious situations. With a blind hatred and desire for total annihilation of the state, an atmosphere of kill-or-be-killed develops.
The criterion of imminence is further obscured as the clandestine nature of terrorist organizations greatly impedes a states ability to discern actions prior to their fruition. CBRN in the hands of these clandestine groups is especially devastating as these weapons are usually small in nature to begin with and can be easily concealed.

Based on the sacrificial nature of some terrorist threats, and the devastating capability of CBRN, it is difficult to determine what is the proportional amount of force to be used against these threats. Since terrorist groups are usually non-state actors, the complicity of the state where the groups exists must be reviewed. For example, the U.S. conflict in Afghanistan, while not anticipatory in nature, held that the ruling faction in Afghanistan was party enough to the terrorist act of 9/11 that it warranted war. However, the U.S., based off of the same terrorist act of 9/11, did not feel that Saudi Arabia was complicit in the act even though 15 of the 19 highjackers were from Saudi Arabia.

Assuredly, the use of preemptive force cannot be tit-for-tat in nature. If a terrorist group planned to use a nuclear weapon in a metropolitan area of America, the U.S. could not justifiably preempt the act with its own nuclear arsenal.

Unlike conventional threats, the devastating nature of CBRN and terrorism promote the need for anticipatory self-defense. However, the complicating element in the use of preemptive force doesn’t lie in the terrorist threat per se, but rather in the complicity of the host state.

Furthermore, it could legitimately be argued that the element of imminence is continuous based on the clandestine nature of terrorism and the devastating effects of WMD. At the least, a general threat alone could be enough justification. For sure, each case of preemptive force must be reviewed individually and not through a blanket doctrine of anticipatory action.

Preempting Unconventional & Catastrophic Threats in International Law…
While states are expected to present security threats to the UNSC for peaceful resolution, in a global environment of WMD and terrorism, the ramifications of delaying preemptive action may be more than states can afford. Rosalyn Higgins, current British justice to the ICJ has held the view that, “in a nuclear age, common sense cannot require one to interpret an ambiguous provision in a text in a way that requires a state to passively accept its fate before it can defend itself.”

This premise is pursued further in the 2002 U.S. NSS, which recognizes the sovereign right of a state to anticipatory self-defense, but contends that the classical criteria for the use of preemptive force is not up to the challenges of the 21st century. The document calls on the international community to, “adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries,” qualifying that the threats do not seek to use conventional means of force. “Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction—weapons that can be easily concealed, delivered covertly, and used without warning,” and thus justifying a different set of criteria for preemptive action.

When is necessity clear when dealing with terrorist groups or CBRN weapons? The act of terrorism usually happens without warning and against poorly defended targets or soft-targets. Amplify this with WMD and how can a state reasonably address the threat prior to harming its populace? Common sense simply dictates that states address these threats prior to their full fruition.

But there is a slippery slope here. In the case of terrorist groups like Al Qaeda, which have consistently and continuously attacked U.S. interests over the years, there isn’t a question of preemption. But what about groups that have not committed terrorist acts yet but intend to? Must the state wait until the attack is imminent before acting? If a an organization that has stated it intends to use CBRN weapons against a state, then begins to develop these types of weapons, does it then become a legitimate target of preemption by the state? Is lethality a mitigating factor in determining imminence or necessity?

Absolutely, states have not and do not wait for these types of threats to fully mature if possible prior to acting. While non-military elements (law enforcement, intelligence, etc) exist for states to cooperate and counter these organizations to a certain degree, states will be presented with opportunities to neutralize these terrorist factions and will use whatever means is necessary to do so. Especially when faced with the destructive capability of CBRN weapons, the need to proactively pursue and preempt these types of threats manifests itself.

Conclusion…
Grotius and Vattel laid the framework for Webster in defining the criteria needed to justify anticipatory self-defense, but they could not have ever envisioned the clandestine and sacrificing nature of modern day terrorism or the destructive capability of WMD. It is hard to imagine that if these elements of force existed in their time that the criteria for preemptive force would not be different between conventional military threats and unconventional/catastrophic ones.

In the words of Ramesh Thakur:

If preemption is strategically and morally justified (why should an American President wait for another mass murder, and be prohibited from taking prophylactic action?) but not legally permitted, then the existing framework of laws and rules- not the anticipatory military action- is defective.

International law is not static, but rather is dynamic and is based largely on state practice. With the evolution of these 21st century threats to state sovereignty and public safety, the need for states to proactively as well as collectively address the rules of engagement is immediate. There needs to be a separate application of international law to terrorism and WMD.

However, it is extremely important that the international community establish this criterion before states, under the guise or claim of preemptive force, engage in wars that are really preventive in nature. Global society need not address the question of the legality of anticipatory self-defense- it is and has been for centuries- but rather needs to discern the guidelines of such force in the future.