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The United States’ View of Anticipatory Attack

In the months following the September 11, 2001, terrorist attacks, U.S. leaders’ statements about their inclination to launch anticipatory attacks in response to security threats greatly intensified debates about the legality and legitimacy of using force against adversaries who have not yet initiated hostilities. This chapter examines these issues, not only because of their intrinsic importance, but also to better understand the circumstances under which leaders are more or less likely to opt for preemptive or preventive attack, since the legal and political interpreta- tions of such strategies are an important factor in estimating their costs and benefits.

The United States has not made clear what specific criteria must be met before it will conduct an anticipatory attack, and this ambigu- ity is no accident. Announcing specific conditions under which a first strike definitely would or would not be carried out would constrain the conduct of policy, and might be exploited by opponents—it is for the latter reason that military rules of engagement are routinely classi- fied. Such deliberate ambiguity about the precise circumstances under which the United States will employ force is consistent with long-held policy, as in President George H. W. Bush’s 1993 statement:

I know that many people would like to find some formula, some easy formula to apply, to tell us with precision when and where to intervene with force. Anyone looking for scientific certitude is in for a disappointment. In the complex new world we are enter-

ing, there can be no single or simple set of fixed rules for using force. . . . To adopt rigid criteria would guarantee mistakes involv- ing American interests and American lives. And it would give would-be troublemakers a blueprint for determining their own actions.1

Examining President George W. Bush’s speeches after September 11, 2001, and the 2002 National Security Strategy sheds some light on the question of when U.S. leaders expect to engage in an anticipatory attack. In the 2002 State of the Union address, President Bush said,

I will not wait on events, while dangers gather. I will not stand by, as peril draws closer and closer. The United States of America will not permit the world’s most dangerous regimes to threaten us with the world’s most destructive weapons.2

Speaking to the graduating class at West Point the following summer, the President declared that containment and deterrence will not work against “terrorist networks . . . and unbalanced dictators with weapons of mass destruction. . . . If we wait for threats to fully mate-

rialize, we will have waited too long.”3 _{In emphasizing the goal of pre-}

venting threats from forming, not merely attacking to stop dangerous capabilities from being used, both of these statements indicate the will-

ingness to conduct preventive as well as preemptive attacks.4

The National Security Strategy explains the U.S. justification for striking first, and the circumstances in which it would be appropriate,

1 _{George H. W. Bush, “Remarks at the United States Military Academy at West Point,}

New York,” West Point, N.Y.: January 5, 1993.

2 _{White House, “President Delivers State of the Union Address: The President’s State of}

the Union Address, The United States Capitol, Washington, D.C.,” Washington, D.C.: The White House, 2002c.

3 _{White House (2002a).}

4 _{This stands in contrast to the statements of previous generations of U.S. leaders, most}

notably the framers of NSC-68, who expressed willingness to launch a preemptive attack against the Soviet Union but ruled out preventive war on the grounds that “[i]t goes with- out saying that the idea of ‘preventive’ war . . . is generally unacceptable to Americans.” See Appendix A.

Attacking in Self-Defense: Legality and Legitimacy of Striking First 45

in slightly greater detail, emphasizing the difficulty of defense against terrorist threats:

Given the goals of rogue states and terrorists, the United States can no longer solely rely on a reactive posture as we have in the past. The inability to deter a potential attacker, the immediacy of today’s threats, and the magnitude of potential harm that could be caused by our adversaries’ choice of weapons, do not permit that option. We cannot let our enemies strike first. . . . The greater the threat, the greater is the risk of inaction—and the more com- pelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the ene- my’s attack. To forestall or prevent such hostile acts by our adver- saries, the United States will, if necessary, act preemptively.5

Together these statements sharpen the picture of the U.S. con- ception of anticipatory attack and the circumstances under which it would be appropriate. The list of potential targets, at least in the declaratory policy, is limited to terrorists and to “rogue states,” “dan- gerous regimes,” or “unbalanced dictators” who possess or may acquire “weapons of mass destruction.” The National Security Strategy draws a positive correlation between the risk of inaction and the willingness to conduct an anticipatory attack. It makes clear that the existence of uncertainty as to the time and place of an attack against the United States will not be a barrier to striking first.

The National Security Strategy recognizes that preemptive attack is firmly grounded in international law. “For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present

an imminent danger of attack.”6 _{Commentators on international law}

typically opined that for such an attack to be legal, there must be an imminent threat, “most often a visible mobilization of armies, navies,

and air forces preparing to attack.”7

5 _{George W. Bush (2002a, p. 15).} 6 _{George W. Bush (2002a, p. 15).} 7 _{George W. Bush (2002a, p. 15).}

However, the National Security Strategy argues that these criteria, which are the indicia of an attack by a state using conventional means, are inapplicable to threats that employ methods and weapons that can

be “easily concealed, delivered covertly, and used without warning.”8 _In

arguing for the permissibility of striking first in situations that do not fit the traditional notion of “imminent threat,” the National Security Strategy declares, “We must adapt the concept of imminent threat to

the capabilities and objectives of today’s adversaries.”9 _{In other words,}

the United States is claiming that anticipatory attack must now be legal in circumstances that do not literally constitute an imminent threat.

The substance of the argument becomes clearer when viewed in the context of other public pronouncements by administration offi- cials. In speaking about the “emerging consensus” regarding the limits of state sovereignty, Richard Haass, Director of Policy Planning for the Department of State, announced:

Quite simply, countries have the right to take action to protect their citizens against those states that abet, support, or harbor international terrorists, or are incapable of controlling terror- ists operating from their territory. . . . [In addition], states risk forfeiting their sovereignty when they take steps that represent a clear threat to global security. When certain regimes with a his- tory of aggression and support for terrorism pursue weapons of mass destruction, thereby endangering the international commu- nity, they jeopardize their sovereign immunity from intervention —including anticipatory action to destroy this developing capability.

The right to self-defense—including the right to take “pre-emp- tive” action against a clear and imminent threat—has long been recognized in international law and practice. The challenge today

8 _{George W. Bush (2002a, p. 15).} 9 _{George W. Bush (2002a, p. 15).}

Attacking in Self-Defense: Legality and Legitimacy of Striking First 47

is to adapt the principle of self-defense to the unique dangers posed by the proliferation of weapons of mass destruction.10

Haass argues that the issue is not one of changing the concept of imminent threat itself, but adapting the legal principle of self-defense so that it applies to situations that do not involve an imminent threat. The question that follows is whether international law allows adapt- ing the principle of self-defense in such a way that the resulting legal standard would be consistent with the United States’ conception of the circumstances under which striking first is appropriate.

A subsidiary question is whether the law even matters. That is, if international law does not allow such an adaptation, will that affect the policy decisions of the United States or otherwise affect the United States negatively? This chapter concludes that, first, international law is sufficiently ambiguous that it may permit the above adaptation of the legal standard of self-defense. Second, even if the law does not permit the degree of adaptation required for a particular action to be considered legal, depending on the nature of the threat and the fealty a particular administration pays to international law, legal consider- ations may not prevent the United States from striking first. However, the perceived illegality of an action affects perceptions of its legitimacy, and that may affect the success of the action through its influence on other nations either as a help or a hindrance. Moreover, even though the perceived illegality of an action alone may not bar that action, strik- ing first when that attack is believed to be illegitimate will entail costs, even if they are difficult to measure, and this may influence the United States to forego launching such anticipatory attacks.

10 _{Richard N. Haass, “Sovereignty: Existing Rights, Evolving Responsibilities: Remarks to}

the School of Foreign Service and the Mortara Center for International Studies, Georgetown University, Washington, D.C., January 14, 2003,” Washington, D.C.: U.S. Department of State, 2003.

International Law

International law bears little resemblance to domestic law. There exists “no international legislature to make it, no international executive to enforce, and no effective international judiciary to develop it or resolve

disputes about it.”11 _{International law is instead based on consent.}

Nations voluntarily subject themselves to the laws under which they live. They do this through two mechanisms: by signing international

agreements, and by acting in a manner that becomes custom.12

The formation of customary international law requires more than states merely following a certain course of conduct. It also requires that states follow that course of conduct in the belief that such practice is required by law. Thus, customary international law has two distinct elements: (1) the general practice of states and (2) states’ acceptance

that this general practice is compelled by law.13 _{These requirements}

raise several questions. What constitutes state practice? How much practice is required, and how many states are required to take part in it? Are the practices of every state given the same weight or do they differ in their importance? What type of dissent from the custom is required such that the custom will not bind a dissenting state? While

some authoritative writings shed light on these issues,14 _{there are few}

concrete answers. Thus, customary international law is often ambigu- ous and subject to conflicting interpretations.

In determining whether a principle has become international law, consideration is given to the rulings of international tribunals and to the writings of scholars. The effect of these sources on international law differs from their effect on domestic law. Specifically, the international

11 _{Louis Henkin, Oscar Schachter, Richard C. Pugh, and Hans Smit, eds., International}

Law: Cases and Materials, 3rd ed., St. Paul, Minn.: West Pub. Co., 1993.

12 _{American Law Institute, Restatement of the Law, the Foreign Relations Law of the United}

States, St. Paul, Minn.: American Law Institute Publishers, 1987, section 102.

13 _{American Law Institute (1987, section 102).} 14 _{For example:}

“Practice of states” . . . includes diplomatic acts and instructions as well as public mea- sures and other governmental acts and official statements of policy, whether they are unilateral or undertaken in cooperation with other states. . . . Inaction may constitute

Attacking in Self-Defense: Legality and Legitimacy of Striking First 49

legal system views the rulings of tribunals less authoritatively than does the domestic legal system. The rules and principles espoused by an American court in reaching its decision become binding precedent in its jurisdiction—in short, these rules and principles become the law. In the international legal system, court opinions are viewed as evidence

of what the law is, but the rules they state are not themselves the law.15

Generally, substantial weight is accorded to these opinions, but the specific degree of weight often depends on several factors, including the unanimity of the tribunal and the political contentiousness of the

underlying issue.16 _{In contrast, adjudging international law relies more}

heavily on the opinions of scholars as to what the law is than does

adjudging domestic law.17

state practice, as when a state acquiesces in acts of another state that affect its legal rights. The practice necessary to create customary law may be of comparatively short duration, but . . . it must be “general and consistent.” A practice can be general even if it is not uni- versally followed; there is no precise formula to indicate how widespread a practice must be, but it should reflect wide acceptance among the states particularly involved in the relevant activity. Failure of a significant number of important states to adopt a practice can prevent a principle from becoming general customary law though it might become “particular customary law” for the participating states. A principle of customary law is not binding on a state that declares its dissent from the principle during its development. (American Law Institute, 1987, section 102, comment b)

See also Michael Byers, “The Shifting Foundations of International Law: A Decade of Force- ful Measures Against Iraq,” European Journal of International Law, Vol. 13, 2002, pp. 21–41; and Anthony D’Amato, “Trashing Customary International Law,” The American Journal of International Law, Vol. 81, No. 1, 1987, pp. 101–105, explaining the formation of customary international law, particularly how treaties contribute to custom, in critiquing the Interna- tional Court of Justice’s decision in Nicaragua v. United States.

15 _{American Law Institute (1987, section 103); Henkin et al. (1993, pp. 119–123).}

16 _{For example, in commenting on the weight given to decisions of the International Court}

of Justice, one scholar noted that such decisions are “generally accepted as the ‘imprimatur of jural quality’ when the Court speaks with one voice or with the support of most judges. However judgments and advisory opinions by a significantly divided court have diminished authority. This is especially true when the issues are perceived as highly political and the judges seem to reflect the positions of the states from which they come” (Henkin et al., 1993, p. 120).

17 _{American Law Institute (1987, section 103); Rebecca M. M. Wallace, International Law:}

A Student Introduction, 3rd ed., London: Sweet and Maxwell, 1997, pp. 27–28; Henkin et al. (1993, pp. 123–125).

With the exception of treaties, the sources of international law allow for, and indeed create, considerable uncertainty as to precisely what obligations, rights, and actions international law imposes, per- mits, and proscribes. This is especially true for issues heavily inter- twined with international politics, such as whether and under what circumstances it is legal for a nation to use force without first being attacked. What custom may be gleaned from the practice of states is often unclear. There exist few international tribunal decisions that

reflect on the legal use of force.18 _{Scholarly writings on the legality}

of the right to engage in anticipatory attack differ wildly. On highly political matters, it is often difficult to discern advocacy about what the law should be from analysis about what the law is. The result is that while international law is often unclear, it is especially unclear regard- ing the matter of whether, and under what circumstances, it is proper to engage in an anticipatory attack.

Legal Use of Force

Through the United Nations (U.N.) Charter, international law man- dates that states refrain from using or threatening force. According to Article 2(4), “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or politi- cal independence of any state, or in any other manner inconsistent with

the Purposes of the United Nations.”19 _{As a U.N. member state, the}

United States is bound by this prohibition. In addition, the prohibition likely has become a principle of customary international law, which

18 _{The tribunal opinion that most directly confronts the propriety of resorting to force with-}

out having been attacked is International Court of Justice, Military and Paramilitary Activi- ties in and Against Nicaragua (Nicaragua v. United States), International Court of Justice, 1986. However, Nicaragua v. United States is of questionable authority due to the lack of unanimity among the judges, the forceful dissenting opinions, and the highly political issue involved. See D’Amato (1987).

19 _{United Nations, Charter of the United Nations, San Francisco: United Nations, 1945,}

Attacking in Self-Defense: Legality and Legitimacy of Striking First 51

binds nonmember states as well.20 _{Therefore, the legality of any use}

of force depends on whether exceptions to the prohibition apply. Two such exceptions could potentially permit the United States to launch an anticipatory attack: force authorized by the U.N. Security Council,

and use of force in self-defense.21

Force Authorized by the Security Council

The United Nations Charter provides a procedure for the Security Council to authorize the use of force. First, the Security Council must determine that there exists a threat to the peace, a breach of the peace, or an act of aggression. Second, the Security Council will recommend or decide what action to take to maintain or restore international peace and security. The Security Council will first consider non-forceful mea- sures, such as sanctions, but if the Security Council determines that such measures have been or will be inadequate to remedy the situation,

it may authorize the use of force.22

Through this procedure, the U.N. Charter implicitly grants the Security Council the right to authorize an anticipatory attack: It per-

20 _{International Court of Justice (1986, p. 14, paragraph 188); L. Oppenheim, Robert Y.}

Jennings, and Arthur Watts, eds., Oppenheim’s International Law, 9th ed., London: Long- mans, 1992, pp. 7–8, citing the International Law Commission in its draft Articles on the Law of Treaties for the principle that the prohibition on the use of force is a rule of ius cogens, which are norms recognized by the international community as peremptory and permit no derogation.

21 _{Other doctrines may exist to permit the use force—such as humanitarian intervention—}

but they are not relevant to the current discussion and their legal standing is uncertain. See, for example, Jianming Shen, “The Non-Intervention Principle and Humanitarian Interven- tions Under International Law,” International Legal Theory, Vol. 7, 2001, pp. 1–32 (“the