Border Law Thoughts

 

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We have made clear that our responses will be proportionate and in accordance with our international legal obligations. But we will not let the less scrupulous think we do not mean business, or simplify an aggressor’s calculations by announcing how we would respond in particular circumstances. The only certainty we should offer is that we shall respond appropriately if we need to, using any of the wide range of options open to us. It should be clear that legally the right to self defence includes the possibility of action in the face of an imminent attack. 83 That position, of course, assumes that preemptive military action may sometimes be lawful. Note also that the term “imminent” appears to have undergone a certain longitudinal extension in the new chapter. Indeed, the UK Ministry of Defence does not appear to believe that international law imposes severe limits.

One exchange in the House of Commons suggests that the UK military takes a rather broad view of international law in this regard.84 In contrast to the public documents indicating some degree of support for the implicit acceptance of the U.S. strategy, Attorney General Goldsmith, in a recently leaked document, explicitly stated in 2003: [I] n my opinion there must be some degree of imminence. I am aware that the USA has been arguing for recognition of a broad doctrine of a right to use force to pre-empt danger 82 C. J. DICK, THE FUTURE OF CONFLICT-LOOKING OUT TO 2020, at 22, 36 (Conflict Studies Research Centre, Defense Academy, No. M30, Apr. 2003), available at . The report notes: Deterring intra-state conflict, including by pre-emptive deployments, is theoretically attractive and may become fashionable but will be fraught with problem..

Despite the lessons of the wars of Yugoslav succession and, arguably, the long-term threat posed by Saddam’s missiles and WMD, it will be very difficult to convince many electorates that such action will be cheaper in the long run. Pre-emptive actions may also be morally and legally dubious and therefore politically divisive, both domestically and internationally (including between allies). President Bush’s strident demands for war to disarm Iraq and more controversially, to effect regime change is a case in point. … One way or another, the USA will leave itself open to charges of hypocrisy, selectivity and bully-boy behavior, not to mention the deliberate flouting of international law through mounting dubious pre-emptive attacks. 83 NEW CHAPTER, supra note 78, para. 22. 84 The Select Committee on Defence asked the secretary of state for defence the following question: [House of Commons]

Are you saying then that if there were a second Resolution of the United Nations which was not carried, but in fact was defeated and the outcome was that it was not right for a war to be engaged in at this time against Iraq, would you then say that if the United Kingdom and the United States were to act unilaterally and go ahead and engage in a war with Iraq, basically they would be working within the realms of the law? (MrHoon) I indicated earlier that there are different sources of international law. There is the common law of international nations which provides basic principles like self-defence, for example. There is also the law made by the Security Council of the United Nations and indeed by the General Assembly, so there is a range of ways in which action would be justified, but I assure you that whatever decision is taken by the British Government would be in conformity with international law. Select Committee on Defence, House of Commons, Minutes of Evidence, Examination of Witnesses, para. 691 (Mar. 5, 2003), available at . 2006] HeinOnline — 100 Am. J. Int’l L. 543 2006 THE AMERICAN JOURNAL OF INTERNATIONAL LAW in the future.

If this means more than a right to respond proportionately to an imminent attack (and I understand that the doctrine is intended to carry that connotation) this is not a doctrine which, in my opinion, exists or is recognized in international law.8 5 Non- U.S. Coalition Partners China. The Chinese government has criticized the U.S. preemptive policy because it “mainly relies on subjective judgments, and is very easily abused and used as a pretext for war. So, the US’ ‘pre-emptive’ strategy is in fact a logic of the powerful.”8’6 Notwithstanding this criticism, such action appears to be contemplated as permissible in the context of China’s claims to Taiwan, with respect to which the Chinese government seems to support a limited version of a right to preemptive action. In March 2005, the People’s Congress of China adopted an anti secession law that authorizes “non-peaceful means” in the event of overt Taiwanese secessionist actions, or even once “possibilities for a peaceful reunification” are exhausted.87 Although the latter conclusion, of course, would rely mainly on subjective judgments, would be susceptible to abuse, and could be used as a pretext for war, the People’s Congress seemed oblivious to the irony. France.

Despite France’s vocal opposition to the war in Iraq, it, too, has announced a defense policy that would allow for preemptive action. In a policy statement for 2003-2008, the French government noted: Outside our borders, within the framework of prevention and projection-action, we must be able to identify and prevent threats as soon as possible. Within this framework, possible preemptive action is not out of the question, where an explicit and confirmed threat has been recognized.

This determination and the improvement of long range strike capabilities should constitute a deterrent threat for our potential aggressors, especially as transnational terrorist networks develop and organise outside our territory, in areas not governed by states, and even at times with the help of enemy states. Prevention is the first step in the implementation of our defence strategy, whose choices have been confirmed by the appearance of the asymmetric threat phenomenon.8 8 This statement, like many of the other examples, focuses on the asymmetrical threat presented by terrorists. As an additional deterrent to terrorist attacks, President Jacques Chirac recently stated that retaliations for large state-backed terrorist attacks against France could involve the use of nuclear weapons. In a speech delivered at a military base, President Chirac asserted that 85 Attorney General Goldsmith, Iraq: Resolution 1441 (Mar. 7, 2003), available at (secret memo to UK prime minister, leaked Apr. 2005).

This section was not included in the first publicly released version of the opinion in March 2003. Attorney General Goldsmith, Iraq: Legality ofArmed Force, HANSARD, House of Lords, vol. 6 46, col. WA3 (Mar. 17, 2003), available at (summary). Indeed, in initial discussions about the legality of military action, the British government refused to base its actions on the U.S. preemptive doctrine. Instead, in accordance with Attorney General Goldsmith’s opinion, the purported basis was the breach of Security Council resolutions. 86 Quoted in China, Taiwan Press, BBC INT’L REP., Feb. 8, 2006 (citing CHINA DEFENSE DAILY), available in LEXIS Academic. 87 Full Text ofNewly PassedAnti-Secession Law, CHINA DAILY, Mar. 15, 2005, available in LEXIS, Major World Newspapers, also available in People’s Republic of China, Order of the President No. 34, Mar. 14, 2005 (promulgating the law), at (English trans.). 88 FRANCE, MINISTRY OF DEFENSE, 2003-2008 MILITARY PROGRAMME, BILL OF LAW, available at . [Vol. 100:525 HeinOnline — 100 Am. J. Int’l L. 544 2006 CENTENNIAL ESSAYS nuclear deterrence is not intended to deter fanatical terrorists.

Yet, the leaders of States who would use terrorist means against us, as well as those who would consider using, in one way or another, weapons of mass destruction, must understand that they would lay themselves open to a firm and adapted response on our part. And this response could be a conventional one. It could also be of a different kind.8 9 India. Federal finance minister Jaswant Singh has said that every country has a right to conduct preemptive strikes as an inherent part of its right of self-defense and that it is not the prerogative of any one nation. “Pre-emption or prevention is inherent in deterrence. Where there is deterrence there is pre-emption. The same thing is there in Article 51 of the UN Charter which calls it ‘the right of self-defence’….,,90 Iran. Iran has adopted a dual strategy in light of the U.S. claims of a right to preemptive self defense. First, it has explicitly raised the costs of a potential preemptive attack against it by declaring that an attack on its nuclear facilities would amount to an attack on the entire country.

Moreover, the Iranian government noted that it would not distinguish between the United States and Israel in the event of an attack by Israeli forces.  Second, Defense Minister Ali Shamkhani has signaled that the Iranian government may also invoke a right to preemptive self-defense against targets on U.S. soil or against U.S. forces in the Middle East. ALl SHAMKHANI: The presence of the US military doesn’t empower the US at our expense. The opposite is true. We can hold their troops hostage. ANCHOR: You say that Iran has a presence in the Gulf, in Iraq, and in Afghanistan, which means that if the US attacks you, you can respond. Is that a correct interpretation? ALl SHAMKHANI: We won’t stay silent and wait for others to act against us.

Some among Iran’s military leadership are confident that the preventive operations being discussed by the Americans aren’t limited to them.9 2 Israel. The Israeli raid on the Osirak reactor in Iraq in 1981 remains the clearest example of a preemptive use of force in the period following World War 11.93 Israel has also practiced targeted assassinations, which might be characterized as a form of preemptive self-defense. 94 In the period covered in this essay, Israel has made an explicit claim of a right to preemptive self defense in the context of the withdrawal from Gaza in 2005.

The Amended Disengagement Plan of 2004 indicated that “[t]he State of Israel reserves its fundamental right of self-defense, both preventive and reactive, including where necessary the use of force, in respect of threats emanating from the Gaza Strip.”9′ 5 89 Jacques Chirac, Speech to Strategic Air and Maritime Forces at Landivisiau (Jan. 19, 2006), available at . 90 Every Country Has Right to Pre-emption:Jaswant, PRESS TRUST OF INDIA, Sept. 30, 2002, available in LEXIS, Wire Service Stories. 9” Interview with Iranian Defense Minister Ali Shamkhani (Aug. 18, 2004), FED. NEWS SERV., Aug. 19, 2004, available in LEXIS, Individual Publications. 92 Id. 93 Reisman, supra note 48. 9’ See generally Orna Ben-Naftali & Keren R. Michaeli, ‘WeMustNotMakea Scarecrow ofthe Law:A LegalAnalysis of the Israeli Polity of Targeted Killings, 36 CORNELL INT’L L.J. 233 (2003). 9′ Disengagement Plan of Prime Minister Ariel Sharon-Revised, §3(1) (3), May 28, 2004, available at . 20061 HeinOnline — 100 Am. J. Int’l L. 545 2006 THE AMERICAN JOURNAL OF INTERNATIONAL LAW North Korea.

In February 2003, in the context of continuing discussions on North Korea’s alleged nuclear program, the Foreign Ministry declared that North Korea was entitled to launch a preemptive strike against U.S. forces rather than wait until the American military was finished with Iraq. The deputy director stated, “The United States says that after Iraq, we are next …. but we have our own counter-measures. Pre-emptive attacks are not the exclusive right of the US.”96 Similarly, in September 2004, Yang Hyong-sop, vice president of the Presidium of the Supreme People’s Assembly, stated that “[a] pre-emptive attack is not a monopoly of the US.”9’ 7 Russia. Following the seizure of a school in Beslan by Chechen militants, the Russian government indicated its willingness to strike at terrorists preemptively. President Vladimir Putin declared on September 17, 2004, that “[t] oday in Russia, we are seriously preparing to act preventively against terrorists ….

This will be in strict respect with the law and constitution and on the basis of international law.”9 8 The defense minister has proclaimed that Russia claims a right of preemptive strikes against terrorists anywhere in the world. 99 At the same time, Russian officials have noted that their preemptive strikes will not include the use of nuclear weapons. 100 This policy stands in marked contrast to numerous public statements prior to the U.S.-led attacks against Iraq, which the Russian government loudly denounced.”‘ President Putin even lamented the “replacement of international law with the law of the jungle.

One former high-level Russian official believes the recent statements endorsing preemptive strikes are more likely a diplomatic overture to the United States and NATO than a concrete statement on military policy. 1 0 3 In any event, both the United States and the United Kingdom have publicly supported the change in Russian policy.’0 4 Taiwan. Well before the passage of the Chinese Anti-Secession Law, Taiwan had invoked the right to preemptive action against China. In 2003 Taiwan’s defense minister refused to rule out “preemptive attacks” against military targets in China in circumstances involving clear Chinese intent and military mobilization. ‘  In fact, the minister’s contingency seems more on the order of anticipatory than preemptive self-defense.

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