The initial assertions of a right of preemptive self-defense by the Bush administration in 2002 were cast more broadly than those of its predecessors. Even though the broader claim was provoked and conditioned by the attacks of September 11, 2001, its open-textured formulation could be interpreted to include surprise attacks on other states. As we have seen, this is how some members of the British government, which was hardly unfriendly to the United States and its military program, read it.
The British reading may not have been off the mark. Significant statements of national military doctrine are not made hastily. The National Security Strategy of 2002 may have already been in the works and designed to prepare the world for direct action against Iraq, one of whose justifications was preemptive self-defense. Significantly, not all states’ claims of rights of preemptive self-defense that we have been able to find appear to contemplate a right to attack another state preemptively.
Rather, the more common formulation appears to be a right to use force in a preemptive fashion against non state entities employing what have come to be called “terrorist” methods. One variation on this leitmotif, in statements by the United States, France, and Australia, appears to be the right to strike preemptively against states only in the face of a risk that terrorists will acquire weapons of mass destruction from a “rogue state.” (These particular conclusions are perforce speculative, for we do not have access to secret “contingency plans,” which may be based on much broader conceptions of preemptive self-defense.)
Hence, the policy of preemptive strikes of many of the states reviewed here appears more narrowly confined to cases of (1) nonstate entities, such as terrorists, who may or may not possess weapons of mass destruction; and (2) states in which there is a risk that terrorists will acquire weapons of mass destruction.1″6 We have thus far focused on affirmative claims. Many governments have explicitly refused to recognize the 2002 claim of the United States as indicative of, or consistent with, international law.
Then-chancellor Gerhard Schr6der explicitly stated his disagreement with the U.S. claims to the right to preemption. 107 The Spanish prime minister, citing Iraq as an example of failure, averred, “[P]re-emptive wars, never again; violations of international law, never again.””0 8 The Islamic Conference of Foreign Ministers similarly condemned “the principle of preemptive military strikes against any country under any pretext whatsoever. “109 Thus, insofar as the college of jurists may have considered the claim to use military force preemptively as a serious erosion of international restraints on the use of force and, in the worst sense, simply as a euphemism for aggression, the examination of statements of political leaders made in the last five years in the contexts of national political debates may provide a modest degree, if not of comfort, then at least of relief for being able to conclude that it could have been worse.
Very few of the more recent statements seem to contemplate or claim a right to direct 106 The statements presented here demonstrate the dynamic nature of customary law. Just two years ago, Michael Byers assessed claims to preemptive self-defense in his broader examination of the Proliferation Security Initiative and found the initial claims by a few states outweighed by increasing criticism of the war in Iraq. Since 2004, however, some states have adroitly asserted a claim to preemptive self-defense while maintaining their critical stance on U.S. actions in Iraq. Michael Byers, Policingthe High Seas:
The Proliferation Security Initiative, 98 AJIL 526, 541-43 (2004). 107 Interview with Chancellor Gerhard Schr6der, Tagesthemen (ARD television broadcastJan. 29, 2003) (on file with authors). “‘ Iraq Proves Pre-emptive Wars Fail: Spanish PM, AP, May 3, 2004, available in LEXIS Academic. ‘0’ Final Communique of the Thirty-first Session of the Islamic Conference of Foreign Ministers, Istanbul, para. 41 (June 16, 2004), reprinted in Report of the Secretary-General on the Work of the Organization, UN Doc. A/58/ 856-S/2004/582, at 6, 13. 2006] HeinOnline — 100 Am. J. Int’l L. 547 2006 THE AMERICAN JOURNAL OF INTERNATIONAL LAW preemptive attacks against other states. Only Iran and North Korea appear to sanction and to claim the privilege of such action and, in fairness to them, it must be acknowledged that each may have been impelled to that position by its perception of preemptive threats from significant political adversaries.
Almost all of the remaining states seem to be focused on actions against nonstate entities and, in virtually all the statements, the assumed context appears to be serial conflicts; that is, continuing conflicts marked by intermittent explosions of violence, followed by relatively long periods of quiescence without formal termination of the hostilities, succeeded by renewed explosions of violence. In this respect, one wonders if the claimed right of preemptive self-defense may be subsiding into a right to initiate the use of force in ongoing overt conflicts, without awaiting a specific provocation. But even under these more limited circumstances, claims of preemptive self-defense would involve uses of force in an ever-widening arena, and any possible gain in the restoration of minimum order will have been secured at the cost of a geographical extension of the conflict.
On the other hand, a preemptive attack on Iranian nuclear installations would depart from the narrowing and qualifying trend we have described and could signal a claim to initiate a major change in the Jus ad bellum. Even if claims to preemptive self-defense are henceforth limited to military actions in protracted low-level conflicts and not permitted for Pearl Harbor-type initiations of interstate war, all such claims are clearly incompatible with conceptions of the legal use of force in self defense as understood by the International Court of Justice in its recent decisions. A discrepancy between practice and formal law-between myth system and operational code”–is hardly unique to the international legal system.
But uncertainty about precisely what the law prohibits is always an invitation to adventurism; and adventurism with highly destructive and non discriminating weapons is a particularly frightening prospect. In any event, if one were to hazard a prediction in this fluid situation, it would be that a conception of lawful self-defense incorporating only the Caroline doctrine will continue for most matters; beyond that, the right of self-defense will have been relaxed only for the so-called war against terrorism. But just as this broad, but necessarily incomplete, survey may have provided some comfort, so increasing legal mime sis may accelerate the drift away from the binary formulation ofArticle 51 (which presents its own problems) toward a vaguer, and possibly less stable, definition of the right to use force.”‘ Imitation is said to be the highest compliment.
And in this instance, the United States has developed some unlikely-and from its perspective, undesired-admirers. Two of the three remaining “axis of evil” members, North Korea and Iran, quickly adopted the U.S. claim in potential defense of their own fragile international positions. “‘ Perhaps more significant for international lawmaking purposes, Russia specifically noted that it was not the ” 0 W. MICHAEL REISMAN, FOLDED LIES (1979). … Although the authors disagree with Thomas Franck’s argument that the U.S. invasion of Iraq signaled an abrogation, rather than a possible transformation, of the international legal order pertaining to the use of force and self-defense, his broader points regarding who decides when force is justified as preemptive self-defense and who then reviews the lawfulness of that military action is particularly relevant here.
This essay has focused on the shifting definitions attached to “attack,” “imminence,” and “self-defense,” but even once the content of these definitions is certain, the question of who decides and who then reviews when these definitions will be applied (the Security Council, a jury of states, or just the state asserting the right to preemptive action) remains. Under Article 51 of the UN Charter, of course, it is the threatened state that decides. Thomas M. Franck, What Happens Now? The United Nations Afier Iraq, 97 AJIL 607, 616 (2003). 112 George W. Bush, State of the Union Address (Jan. 29, 2002), 38 WEEKLY COMP. PRES. DoC. 125, 135 (Feb. 4, 2002), available at (noting that Iraq, North Korea, and Iran constituted an axis of evil). [Vol. 100:525 HeinOnline — 100 Am. J. Int’l L. 548 2006 CENTENNIAL ESSAYS first government to announce a policy of preemptive self-defense. According to Defense Minister Ivanov, “Whether we like it or not, the pre-emptive use of force in the modern world is a reality. While this principle exists, we are not going to relinquish it voluntarily.””‘
The House of Commons noted this very danger in requesting the Blair government to assist in developing a clear international consensus on the right to use force in self-defense. Otherwise, “there is a serious risk that [justifying action against Iraq on an “expanded doctrine of ‘preemptive self-defence”‘] will be taken as legitimizing the aggressive use of force by other, less law-abiding states.” Prime Minister Howard has rejected the substance of these warnings, arguing that there has been “too great a tendency to impute a generalized intention on the part of the United States to adopt what you call a pre-emptive strike policy.” ”
In the grip of mimetic effects, however, the actual policy of the United States becomes less important than the policy that continues to be imputed to it. In its inferences with respect to evolving custom, international law will take account of the policies and practices of all nations. Although the U.S. policy may now be more limited than initially claimed, other states may not have received that message. Some may re actively adopt exaggerated preemption policies with respect to their own latent adversaries, thus skewing assessments of international consensus and practice back toward a position that ironically may no longer be claimed by those major powers that had brought the claim to the fore. Hence, what appears to be a growing adoption of claims to preemptive self-defense in limited circumstances may mistake political posturing for international consensus, with grave consequences for both the expectation and eventuation of violence.