Border Law Thoughts 2

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One of the most important questions post 9/11 is how a nation state defends itself against an unseen enemy. How a nation state that believes in the rule of law and morality in armed conflict prevents attacks against its innocent citizens is our focus. Self-defence, or active pre-emptive self-defence, against the unseen enemy is extraordinarily difficult and fraught with enormous risks and dangers. How, and when, the state defends itself against such an enemy is critical to address; it is the combat of the future. In the context of post-9/11 operational counter terrorism, the question is whether self-defence, as presently articulated by international law, enables a state to preventively act in an effective way. 9/11 taught decision makers and commanders alike that in future military conflicts states will confront non-state actors, rather than other nation-states.

The traditional state–state war as understood by the ‘founding fathers’ of international law is largely a historical relic. In the traditional war self-defence paradigm, states protect themselves either against armies massing against their border, or after attack by another nation-state. Self-defence in the ‘unseen enemy’ paradigm is ambiguous. It is not * Professor of Law, S. J. Quinney College of Law, University of Utah. Thanks to Artemis Vamianakis (S. J. Quinney College of Law, J. D. expected, 2009) for her invaluable research and editing contributions.

Journal of Conflict & Security Law (2008), Vol. 0 No. 0, 1–22 2 Amos N. Guiora inherently clear who is attacking the state or who the state is protecting itself against. Unlike traditional warfare where militaries faced off with planes, tanks and warships, counter terrorism is characterized by an often unseen enemy and the battles take place in ‘back alleys with dark shadows.’ Self-defence in this environment is enormously complicated. The decision to pre-emptively attack a highly elusive target, oftentimes in the vicinity of civilians, is based almost exclusively on intelligence information.1 Given this change in the nature of the conflict, the events of 9/11 clearly suggest the need to re-articulate international law.2 This article’s fundamental assumption is that existing international law does not provide sufficiently clear guidelines to state decision makers regarding when to take pre emptive3 or anticipatory 1 See D. D. Caron, ‘The Rule-Outcome Paradox, Madness Cascades and the Fog of Preemption: Seeking the “Best Rule” for Use of Force’, (2004) 27 Hastings Int’l & Comp. L. Rev. 481 at 492–495; A. N. Guiora and E. M. Page, ‘The Unholy Trinity: Intelligence, Interrogation and Torture’, (2006) 37 Case W. Res. J. Int’l Law 427; S. P. Marks, ‘Branding the “War on Terrorism”: Is There a “New Paradigm” of International Law?’, (2006) 14 Mich. St. J. Int’l L. 71 at 94. 2 To that end, I am a member of a group of international academics—‘New Battlefields old Laws: From the Hague Conventions to Asymmetric Warfare’, Institute for National Security and Counter terrorism, Syracuse University, an Interdisciplinary Working Group recommending changes to the Laws of Armed Conflict, suggesting policies that can combat asymmetric war and considering human rights dimensions of terrorist strategies—that has convened for the specific purpose of recommending changes to international law.

For articles emphasizing the need to re-articulate self-defence in international law, see M. Baker, ‘Terrorism and the Inherent Right of Self-Defence: A Call to Amend Article 51 of the United Nations Charter’, (1987) 10 Hous. J. Intl. L. 25; R. Hendrickson, ‘Article 51 and the Clinton Presidency: Military Strikes U.N. Charter’, (1999) 19 B.U. Intl. L.J. 207; G. Travalio, ‘Terrorism, International Law, and the Use of Military Force’, (2000) 18 Wisc. Intl. L.J. 145; T. Franck, ‘When, If Ever, May States Deploy Military Force Without Prior Security Council Authorization?’, (2001) 5 Wash. U. J.L. & Poly 51; R. Falk, ‘What Future for the UN Charter System of War Prevention?’, (2003) 97 AJIL 590; J. Stromseth, ‘Law and Force after Iraq: A Transitional Moment’, (2003) 97 AJIL 628; M. Nabati, ‘International Law at a Crossroads: SelfDefence, Global Terrorism, and Pre-emption: A Call to Rethink the Self-Defence Normative Framework’, (2003)13 Transnatl. L. & Contemp. Probs. 771; T. Franck, ‘What Happens Now? The United Nations After Iraq’, (2003) 97 AJIL 607; A-M. Slaughter, ‘Security, Solidarity, and Sovereignty: The Grand Themes of UN Reform’, (2005) 99 AJIL 619; Y. Lupu, ‘Gaps and Power: Assessing Reform of the U.N. Charter’, (2006) 24 Berkeley J. Intl. L. 881. 3 Pre-emptive self-defence allows for reaction when a serious threat to national security exists. This interpretation expands the notion of imminence. This articulation of selfdefence was adopted in The National Security Strategy of the United States. For additional discussion see M. W. Reisman and A. Armstrong, ‘The Past and Future Claim of Pre-emptive Self-Defence’, (2006) 100 AJIL 525; J. Yoo, ‘International Law and the War in Iraq’, (2003) 97 AJIL 563; C. Gray, International Law and the Use of Force (2nd ed., 2004) 133; A. Sofaer, ‘On the Necessity of Pre-emption’, (2003) 14 EJIL 209; M. Glennon, ‘Pre-empting Terrorism: The Case for Anticipatory Self-Defence’, Wkly. Standard, 28 January 2002. Anticipatory Self-Defence and International Law 3 action 4 against a non-state actor.

It is proposed that the Caroline Doctrine, UN Article 51, and the post 9/11 Security Council Resolutions 1368 and 1373 are insufficient in enabling the nation state to act early enough, provided intelligence is available. How the state, under the rubric of the rule of law and morality in armed conflict, protects itself by acting before an attack is an issue of enormous significance. In the self-defence debate, the critical questions are: what are the restraints, when the state can act, against what target, and against what enemy. In answering these questions it is critical that guidelines and criteria be developed regulating if and when a state may take anticipatory action. That is not to suggest that the state may not act, quite the opposite. It is, however, to forcefully advocate that the underlying reasons for state action are sound, legal and moral.

This article proposes a new, process-based ‘strict scrutiny’ approach to preemptive self-defence against non-state actors. The ‘strict scrutiny’ approach means that a state can act early (earlier than allowed under existing international law) against a non-state actor, but the act must be based on reliable, viable, valid and corroborated intelligence presented to a court of law. This process leads to an institutional check on the executive. In seeking to answer these questions, this article will examine existing international law (Section 2) and will propose a strict-scrutiny approach to state anticipatory self-defence (Section 3)

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