The Clinton administration’s 2000 document on security strategy proceeded to an even more explicit formulation: “Whenever possible, we use law enforcement, diplomatic, and economic tools to wage the fight against terrorism.” Observing that those tools would not always be adequate, the document asserted that “[a]s long as terrorists continue to target American citizens, we reserve the right to act in self-defense by striking at their bases and those who sponsor, assist, or actively support them, as we have done over the years in different countries. 21 Thus, the attack on September 11, 2001, rather than occasioning a radical change in strategy, only reinforced incipient trends. On June 1, 2002, President Bush stated: “We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge.”
On September 17, 2002, he made explicit and expanded a claim to preemptive action in a new National Security Strategy: We will disrupt and destroy terrorist organizations by: ” direct and continuous action using all the elements of national and international power. Our immediate focus will be those terrorist organizations of global reach and any terrorist or state sponsor of terrorism which attempts to gain or use weapons of mass destruction (WMD) or their precursors; * defending the United States, the American people, and our interests at home and abroad by identifying and destroying the threat before it reaches our borders. While the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively against such terrorists, to prevent them from doing harm against our people and our country; and ” denying further sponsorship, support, and sanctuary to terrorists by convincing or compelling states to accept their sovereign responsibilities.
Even more explicitly, the president’s National Strategy to Combat Weapons of Mass Destruction, issued in December 2002, stated: “Because deterrence may not succeed, and because of the potentially devastating consequences of WMID use against our forces and civilian population, U.S. military forces and appropriate civilian agencies must have the capability to defend 19 Id. at 23-24. 20 Id. at 24. 21 George W. Bush, Commencement Address at the United States Military Academy in West Point, New York (June 1, 2002), 38 WEEKLY COMP. PRES. DOC. 944, 946 (June 10, 2002). 22 NATIONAL SECURITY STRATEGY OF THE UNITED STATES 6 (Sept. 2002), available at . [Vol. 100:525 HeinOnline — 100 Am. J. Int’l L. 530 2006 CENTENNIAL ESSAYS against WMD-armed adversaries, including in appropriate cases through preemptive measures.”
This is a claim of preemption in the broadest sense.24 The Bush administration is currently debating the military content of these preemptive measures. A Pentagon draft “Doctrine for Joint Nuclear Operations” suggested that the United States could deploy nuclear weapons in self-defense to preempt a WMD attack. 25 Congressional leaders and arms control experts quickly criticized the draft document, however, and an administration official emphasized that the doctrine had not yet been made final.26 Since the release of the 2002 National Strategy, members of the Bush administration have indicated that the “Bush doctrine” of preemption may be more limited. One limiting factor appears to be the presumed rationality of the state regime supporting terrorism. In distinguishing the U.S. claim from potential claims to preemption in the contexts of the China/Taiwan and India/Pakistan situations, a White House official explained: I think what’s different is the unique history of Iraq and the irrationality of Iraq. Different policies work in different regions of the world, and different doctrines work at different times and in different regions because of the local circumstances.
Policies of containment work more with a rational figure than with an irrational one. That’s why the policy of containment worked vis a vis the Soviet Union. … Given the fact that an irrational leader [Saddam Hussein] who has a history of military force and military use and military aggression and domination may acquire a nuclear weapon, the question is, should it be the policy of the dangerous United States to do nothing, and allow such a leader to acquire a weapon that he could then use to blackmail the world and blackmail the region, and even use it to harm us. 2 7 Then-national security adviser, Dr. Condoleezza Rice, similarly limited the policy, noting: The number of cases in which it might be justified will always be small. It does not give a green light-to the United States or any other nation-to act first without exhausting other means, including diplomacy. Preemptive action does not come at the beginning of a long chain of effort.
The threat must be very grave. And the risks of waiting must far outweigh the risks of action.2 8 In the newly released 2006 National Security Strategy of the United States, the Bush administration indeed appears to have moderated its initial expansive claims, while still retaining its 23 NATIONAL STRATEGY TO COMBAT WEAPONS OF MASS DESTRUCTION 3 (Dec. 2002), available at . 24 John Yoo, deputy assistant attorney general in the Office of Legal Counsel from 2001 to 2003, attempted in this Journal to position the 2002 claim to preemptive self-defense within the Caroline doctrine by arguing that the definition of imminence “should” include the probability and the of the threat and whether diplomacy is “practical.” John Yoo, International Law and the War in Iraq, 97 AJIL 563, 571-74 (2003). But note that any balancing test can be made to support a preferred position by adding or subtracting variables from one side of the equation. 25 U.S. DEP’T OF DEFENSE, DOCTRINE FORJOINT NUCLEAR OPERATIONS, FINAL COORDINATION (2), at 1-6 (Joint Publication 3-12, Mar. 15, 2005), available at . 26 Walter Pincus, Pentagon May Have Doubts on Preemptive Nuclear Moves, WASH. POST, Sept. 19,2005, at A5.
Pincus also notes that the unclassified draft document was removed from the Defense Department’s Web site after details were published in the newspapers. 27 White House Spokesman Ari Fleischer, Press Briefing (Oct. 15,2002), available at . 28 Dr. Condoleezza Rice Discusses President’s National Security Strategy, Wriston Lecture, Waldorf Astoria Hotel (Oct. 1, 2002), available at . 20061 HeinOnline — 100 Am. J. Int’l L. 531 2006 THE AMERICAN JOURNAL OF INTERNATIONAL LAW claim to a right to use force preemptively. Although the new strategy proclaims that “[t] he place of preemption in our national security strategy remains the same,” 29 the 2006 version also places much more emphasis on alternatives to military preemption and reliance on multilateral solutions. The administration argues that “[t] aking action [to prevent proliferation ofweapons of mass destruction] need not involve military force. Our strong preference and common practice is to address proliferation concerns through international diplomacy, in concert with key allies and regional partners.” 3 °
Preemptive military action also appears to be limited to being used against a “hard core of terrorists,” who cannot be deterred and therefore must be “tracked down, killed, or captured. ’31 However, the strategy for confronting underlying networks supporting terrorists is deterrence through “a broad range of tools.” 32 The 2006 National Security Strategy provides further support to observers, who, in the aftermath of the war in Iraq, speculated that the Bush administration had already softened its claim to a right of preemption in practice, if not in policy-particularly with respect to Iran and North Korea. 33 Large-scale attacks on states appear to be less favored than strategic preemptive strikes against weapons of mass destruction or terrorist training camps. This may be a tactical change more than an international legal correction. III.
In the period under review, the United Nations High-Level Panel on Threats, Challenges and Change, appointed by the secretary-general, appears to have sided with those favoring a certain loosening of the strict requirement of an “armed attack” for self-defense by resort to unilateral military action. The panel stated: The language of this article is restrictive: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures to maintain international peace and security”. However, a threatened State, according to long established international law, can take military action as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate.
The problem arises where the threat in question is not imminent but still claimed to be real: for example the acquisition, with allegedly hostile intent, of nuclear weapons-making capability. 34 The Red Queen may assign whatever meaning she wishes to words, but it is plain to us that the language ofArticle 51, whether wise or not, was not designed to accommodate the Caroline principle. The panel’s interpretation appears to be an attempt at adjustment of the Charter to 29 NATIONAL SECURITY STRATEGY OF THE UNITED STATES 23 (Mar. 2006), available at . 30 Id. 3′ Id. at 12. 32 Id. 33 See, e.g., Francis Fukuyama, After Neoconservatism, N.Y. TIMES, Feb. 19, 2006, §6 (Magazine), at 62; James Sterngold, Bush Tempers Argument for Preemptive Strikes, S.F. CHRON., Oct. 2, 2004, at A10. 3′ A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges and Change, UN Doc. A/59/565, at 54, para. 188 (2004), available at. This formulation, while broader than the Article 51 requirement, is narrower than the standard proposed in this Journalby Richard Gardner, who argued for a reinterpretation of the UN Charter to allow for armed force to counter transfers of WMD to terrorist groups and terrorists when the host state fails to suppress them. Richard N. Gardner, Neither Bush Nor the ‘Jurisprides,” 97 AJIL 585, 590 (2003). [Vol. 100:525 HeinOnline — 100 Am. J. Int’l L. 532 2006 CENTENNIAL ESSAYS meet part of the U.S. claim. 35 But only part of it!
The high-level panel proceeded to make clear that if imminent armed attack were now brought within the meaning of armed attack and unilateral military action to head it off could now be potentially lawful, preemptive self-defense could not be. Rejecting, in explicit terms, the possibility that acting “preventively (against a non-imminent or non-proximate [threat])” could fall within the confines of lawful self-defense, the panel explained: For those impatient with such a response, the answer must be that, in a world full of perceived potential threats, the risk to the global order and the norm of non-intervention on which it continues to be based is simply too great for the legality of unilateral preventive action, as distinct from collectively endorsed action, to be accepted. Allowing one to so act is to allow all.36 Curiously, this part of the panel’s report, with its subliminal emendation of the Charter, has excited relatively little comment despite its radical character, for it would significantly change the purport of Article 51 by moving it toward the U.S. position- unless, of course, the change had already been accomplished by practices long since incorporated into customary international law.37 IV.
In a series of judgments and advisory opinions, the International Court of Justice has hewed to a rather strict reading of Article 51 of the United Nations Charter. Assessing the legal content of the right to self-defense in the Nicaragua v. United States case of 1986, the Court surveyed treaty law and customary international law and concluded: “In the case of individual self-defence, the exercise of this right is subject to the State concerned having been the victim of an armed attack.” Noting the apparent “general agreement on the nature of the acts which can be treated as constituting armed attacks,” the Court pointed in particular to the agreement that an armed attack must be understood as including not merely action by regular armed forces across an international border, but also “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to” (inter alia) an actual armed attack conducted by regular forces, “or its substantial involvement therein.”…
It is also clear that it is the State which is the victim of an armed attack which must form and declare the view that it has been so attacked. There is no rule in customary international law permitting another State to exercise the right of collective self-defence on the basis of its own assessment of the situation. Where collective self-defence is invoked, it is to be expected that the State for whose benefit this right is used will have declared itself to be the victim of an armed attack.38 35 W. Michael Reisman, Expanding the UN Security Council: Much Ado, JURIST, Aug. 7, 2005, available at . 3 6 A More Secure World, supra note 34, at 54-55, paras. 189, 191. 37 Thomas Franck argued in thisJournalas early as 1970 that Article 51 was of little use in distinguishing between claims of self-defense and aggression. Thomas M. Franck, Who KilledArticle 2(4)? 64 AJIL 809, 818 (1970). 31 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ REP. 14, 103- 04, para. 195 (June 27) (citation omitted (quoting Definition ofAggression, GA Res. 3314 (XXIX), annex)) [hereinafter Nicaragua]. 2006] HeinOnline — 100 Am. J. Int’l L. 533 2006 THE AMERICAN JOURNAL OF INTERNATIONAL LAW.
Seventeen years later, the International Court of Justice applied its interpretation of Article 51 in the Nicaragua Judgment to U.S. claims of self-defense in attacking Iranian oil installations. In the Court’s view, the United States had to prove, as a factual matter, not only that Iran was responsible for the attacks-a requirement that the United States was ultimately unable to meet to the Court’s satisfaction- but that “those attacks were of such a nature as to be qualified as ‘armed attacks’ within the meaning of that expression in Article 51 of the United Nations Charter, and as understood in customary law on the use of force.” 39 As to this legal requirement, the Court harked back to Nicaragua: As the Court observed in the case concerning Military and Paramilitary Activities in and against Nicaragua, it is necessary to distinguish “the most grave forms of the use of force (those constituting an armed attack) from other less grave forms”, since “In the case of individual self-defence, the exercise of this right is subject to the State concerned having been the victim of an armed attack”.
The United States must also show that its actions were necessary and proportional to the armed attack made on it, and that the platforms were a legitimate military target open to attack in the exercise of self-defence. The Court similarly employed a strict reading of Article 51 in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, finding that Israel’s claim of self-defense in constructing a military barrier in the Occupied Palestinian Territory was not relevant to the case: Article 51 of the Charter… recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State.
However, Israel does not claim that the attacks against it are imputable to a foreign State. The Court also notes that Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory. The situation is thus different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self-defence. Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.” l In its most recent holding in Armed Activities on the Territory of the Congo, which was brought under its contentious jurisdiction by the Democratic Republic of the Congo (DRC) against Uganda, the Court was required to address the issue of preemptive self-defense. On September 11, 1998, the Ugandan High Command had issued a document known as “Safe Haven.” The document asserted as purported fact a series of propositions: first, that the “enemies” of Uganda had used the DRC as a base for attacks against it for a long time in the absence of effective control by the Congo of all its territory; second, that in May 1997 the two states had agreed on joint operations by the Uganda People’s Defense Force (UPDF) and the Congolese army against the forces of Uganda’s enemies in the Congo; and third, that when the anti-Kabila rebellion began in the DRC in 1998, the forces of the two sides were still operating against enemies of Uganda who had returned to the DRC.
Having thus set the scene, and “in order to secure Uganda’s legitimate security interests,” “Safe Haven” assigned the Ugandan army the following tasks: ‘9 Oil Platforms (Iran v. U.S.), Merits, 2003 ICJ REP. 161, paras. 57, 61, 64, 71-72 (Nov. 6). 40Id., para. 51 (citations omitted (quoting Nicaragua at 101, para. 191, & 103, para. 195)). Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 139 (Int’l Ct. Justice July 9, 2004), 43 ILM 1009 (2004) [hereinafter Wall Opinion]. [Vol. 100:525 HeinOnline — 100 Am. J. Int’l L. 534 2006 CENTENNIAL ESSAYS 1. To deny the Sudan opportunity to use the territory of the DRC to destabilize Uganda.
To enable UPDF [to] neutralize Uganda dissident groups which have been receiving assistance from the Government of the DRC and the Sudan. 3. To ensure that the political and administrative vacuum, and instability caused by the fighting between the rebels and the Congolese Army and its allies do not adversely affect the security of Uganda. 4. To prevent the genocidal elements, namely, the Interahamwe, and ex-FAR [Former Armed Forces of Rwanda], which have been launching attacks on the people of Uganda from the DRC, from continuing to do so. 5. To be in position to safeguard the territor[ial] integrity of Uganda against irresponsible threats of invasion from certain forces. 42 None of the “legitimate security interests” in the five points in “Safe Haven” involves a response to an armed attack. Each is either an action in anticipatory self-defense, in the sense of the Caroline doctrine, or, insofar as the event for which military action is proposed is not imminent, an action purportedly in preemptive self-defense, in the sense in which United States administrations have used the term. Only item 2, to the extent that the facts supported it, could clearly be characterized as anticipatory self-defense in the Caroline sense. The Court remarked that “the objectives of operation ‘Safe Haven’, as stated in the Ugandan High Command document, were not consonant with the concept of self-defence as understood in international law.”