LEGAL STANDARDS GOVERNING PRE-EMPTIVE STRIKES AND
ANTICIPATORY SELF-DEFENSE UNDER THE UN CHARTER AND GENERAL
INTERNATIONAL LAW. PART 1
By Olumide K. Obayemi*
Historically, the United States had never unilaterally attacked another nation
militarily prior to its first having been attacked or prior to U.S. citizens or
interests first having been attacked. This posture has changed permanently.
On September 20, 2001, President George Bush of the United States
announced the expansive “Bush Doctrine”, when he declared thus:
“Our war on terror begins with al Qaeda, but it does not end there. It will not
end until every terrorist group of global reach has been found, stopped and
defeated. Either you are with us or you are with the terrorists.”
In the same manner, Vice President Dick Cheney declared before the National
Association of Home Builders on June 6, 2002 thus:
“...we also realize that wars are not won on the defensive. We must take the
battle to the enemy-and, where necessary, preempt grave threats to our
country before they materialize.”
On August 26, 2002, before the Veterans of Foreign Wars National
Convention, Vice President Dick Cheney went on and declared as well that:
“...containment is not possible when dictators obtain weapons of mass
destruction, and are prepared to share them with terrorists who intend to inflict
catastrophic casualties on the United States.”
The thesis of this article is to argue that while the use of preemptive military
strike now adopted by the United States against non-state actors and rogue
states would appear to be justified under international law, however, such
military exercise must be subject to well defined and clearly stated international
legal rules. “Preemptive” use of military force is the taking of military action by
the United States against another nation so as to prevent or mitigate a
presumed military attack or use of force by that nation against the United
States.
There is no doubt that preemptive military strike, defined as the anticipatory
use of force in the face of an imminent attack, has long been accepted as
legitimate and appropriate under international law. The present concern is
whether the rules governing self-defense and preemptive strike in the law of
nations as formulated in the late nineteenth (19th) century would still pass
muster under highly evolving rules of warfare of nowadays. Then, in the
century preceding the last one, most international conflicts were conducted by
states with the use of large movement of military personnel and ammunitions.
The question, then, is should this archaic rule requiring actual armed attack to
precede self-defense measures continue to govern in this computerized age
where substantial and catastrophic atrocities could be achieved by non-state
terrorists and rogue via hidden and unconventional methods? This author’s
position, using the events of September 11, 2001 terrorist attacks in New York,
Pennsylvania and Washington DC, as background, would be to argue for an
extension and enlargement of the rule of preemptive and anticipatory military
strike, because the unconventional methods being used by the terrorists and
their supporters are easily available and also because the nations at the
receiving end would have been exterminated and incapacitated by the first
strikes. All states deserve to exist and should be able to protect themselves
against clear and present danger posed by their enemies.
This is the era of the phenomenon of concealed "basement bomb" program.
The present George Bush administration of the United States has indicated its
readiness to depart from the strictures of outdated rules of international law on
self-defense that have no direct application or relevance to contemporary
modern attacks and/or modern laws. While the United States preemption
strike covers nonproliferation efforts, missile defenses, and other protective
measures for thwarting enemies of the United States, the Bush Doctrine’s main
preoccupation and the important element of the administration's overall
approach to United States’ security in the post-September 11, 2001
environment centers around fighting unconventional terrorists and rogue
states that may be in possession of weapons of mass destruction.
According to President Bush:
“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. Legal scholars and international
jurists often conditioned the legitimacy of preemption on the existence of an
imminent threat—most often a visible mobilization of armies, navies, and air
forces preparing to attack. We must adapt the concept of imminent threat to
the capabilities and objectives of today's adversaries. Rogue states and
terrorists do not seek to attack us using conventional means...Instead, they
rely on acts of terror and, potentially, the use of weapons of mass destruction—
weapons that can easily be concealed, delivered covertly and used without
warning. The United States has long maintained the option of preemptive
actions to counter a sufficient threat to our national security. The greater the
threat, the greater is the risk of inaction—and the more compelling the case for
taking anticipatory action to defend ourselves, even if the uncertainty remains
as to the time and place of the enemy's attack. To forestall or prevent such
hostile acts by our adversaries, the United States will, if necessary, act
preemptively. The United States will not use force in all cases to preempt
emerging threats, nor should nations use preemption as a pretext for
aggression. Yet in an age where the enemies of civilization openly and actively
seek the world's most destructive technologies, the United States cannot
remain idle while dangers gather.”
Clear from above, the Bush Doctrine and the United States’ version of
preemption strike is not limited to the traditional definition of preemption—
striking an enemy as it prepares an attack—but also includes prevention—
striking an enemy even in the absence of specific evidence of a coming
attack. In the opinion of O’Hanlon, Rice, and Steinberg, while commenting on
the Bush Doctrine,:
“The idea principally appears to be directed at terrorist groups as well as
extremist or "rogue" nation states; the two are linked, according to the
strategy, by a combination of "radicalism and technology." The administration
asserts that deterrence of the kind that prevailed during the cold war is unlikely
to work with respect to rogue states and terrorists—which the administration
claims are not risk-averse—and which view weapons of mass destruction not
as weapons of last resort but as weapons of choice.”
While many states, statesmen, international law jurists, political scientists,
commentators, and common citizenry have criticized the United States’
adoption of an expansive preemptive, anticipatory, and/or preventive military
strike in the global fight against terrorism, few appear to have well-rounded
grasp of the dangers posed by non-state actors and rogue nations to the
United States, and as well, to the international community as a whole.
In understanding the background history of the emergence of the preventive
military strike jurisprudence in 2002, we must note that in the past, non-state
actors (terrorists, guerrillas, drug traffickers) appeared to be less threatening
to United States’ national security than the well funded, well organized, and
potent armed forces of an enemy nation-state. However, the terrorist attacks
of September 11, 2001 now illustrate, very candidly, that small groups of non-
state actors can exploit relatively inexpensive and commercially available
technology to conduct very destructive attacks over great distances. Thus,
the rationale for expansion of the preemption strike right is twofold: (a) to deal
with actors who cannot be reliably deterred, and (b) to address the enormous
threat posed by the spread of Weapons of Mass Destruction.
While supporting the expansion of international law jurisprudence on self-
defense, the superpower invoking the right of self defense, anticipatory
attacks, military incursions, and/or right of pre-emptive strike as a basis for
military action against another sovereign nation must bear a very high burden
of establishing the following elements:
1. That the nation against which military action was being considered
poses actual and/or immediate risk to
(a) their neighbors,
(b) international peace, and
(c) the international comity of states;
2. The nation arguing for military invasion of a failed state must have
suffered an 'injury in fact'—an invasion of a judicially cognizable interest which
is
(a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical;
3. There must be a causal connection between the actual and/or imminent
injury and/or risk alleged and the fact that second state has failed as a nation;
and
4. The actual and/or immediate risk and injury posed by failed states to
(a) their neighbors, (b) international peace, and (c) the international comity of
states would be redressable through foreign intervention, either by the United
Nations or through an international action authorized by the United Nations,
before the extreme action of military invasion would be permitted.
On the satisfaction of the above elements, through evidence satisfying the
“beyond reasonable doubt” standard, the United Nations, or any other
aggrieved state, may move to initiate military action against non-state terrorist
fugitives and rogue states.
The above additional strictures would enhance a cohesive and more inclusive
international action against terrorists who threaten international peace. In fact,
as Christopher Bolkcom and Kenneth Katzman had noted:
“Pursuing objectives against non-state actors while “winning the hearts and
minds” of local populations, or at least not alienating them, appears to be a
key consideration. Recent military action has killed or captured prominent
terrorists, but it is unclear whether this action actually degraded the terrorist
organization’s capabilities. In some cases, these actions may have even
strengthened them.” To be continued
Olumide K. Obayemi is admitted to the Bars of Federal Republic of Nigeria
and the State of California. He teaches Taxation Law at East Bay Law School,
Oakland California.
ANTICIPATORY SELF-DEFENSE UNDER THE UN CHARTER AND GENERAL
INTERNATIONAL LAW. PART 1
By Olumide K. Obayemi*
Historically, the United States had never unilaterally attacked another nation
militarily prior to its first having been attacked or prior to U.S. citizens or
interests first having been attacked. This posture has changed permanently.
On September 20, 2001, President George Bush of the United States
announced the expansive “Bush Doctrine”, when he declared thus:
“Our war on terror begins with al Qaeda, but it does not end there. It will not
end until every terrorist group of global reach has been found, stopped and
defeated. Either you are with us or you are with the terrorists.”
In the same manner, Vice President Dick Cheney declared before the National
Association of Home Builders on June 6, 2002 thus:
“...we also realize that wars are not won on the defensive. We must take the
battle to the enemy-and, where necessary, preempt grave threats to our
country before they materialize.”
On August 26, 2002, before the Veterans of Foreign Wars National
Convention, Vice President Dick Cheney went on and declared as well that:
“...containment is not possible when dictators obtain weapons of mass
destruction, and are prepared to share them with terrorists who intend to inflict
catastrophic casualties on the United States.”
The thesis of this article is to argue that while the use of preemptive military
strike now adopted by the United States against non-state actors and rogue
states would appear to be justified under international law, however, such
military exercise must be subject to well defined and clearly stated international
legal rules. “Preemptive” use of military force is the taking of military action by
the United States against another nation so as to prevent or mitigate a
presumed military attack or use of force by that nation against the United
States.
There is no doubt that preemptive military strike, defined as the anticipatory
use of force in the face of an imminent attack, has long been accepted as
legitimate and appropriate under international law. The present concern is
whether the rules governing self-defense and preemptive strike in the law of
nations as formulated in the late nineteenth (19th) century would still pass
muster under highly evolving rules of warfare of nowadays. Then, in the
century preceding the last one, most international conflicts were conducted by
states with the use of large movement of military personnel and ammunitions.
The question, then, is should this archaic rule requiring actual armed attack to
precede self-defense measures continue to govern in this computerized age
where substantial and catastrophic atrocities could be achieved by non-state
terrorists and rogue via hidden and unconventional methods? This author’s
position, using the events of September 11, 2001 terrorist attacks in New York,
Pennsylvania and Washington DC, as background, would be to argue for an
extension and enlargement of the rule of preemptive and anticipatory military
strike, because the unconventional methods being used by the terrorists and
their supporters are easily available and also because the nations at the
receiving end would have been exterminated and incapacitated by the first
strikes. All states deserve to exist and should be able to protect themselves
against clear and present danger posed by their enemies.
This is the era of the phenomenon of concealed "basement bomb" program.
The present George Bush administration of the United States has indicated its
readiness to depart from the strictures of outdated rules of international law on
self-defense that have no direct application or relevance to contemporary
modern attacks and/or modern laws. While the United States preemption
strike covers nonproliferation efforts, missile defenses, and other protective
measures for thwarting enemies of the United States, the Bush Doctrine’s main
preoccupation and the important element of the administration's overall
approach to United States’ security in the post-September 11, 2001
environment centers around fighting unconventional terrorists and rogue
states that may be in possession of weapons of mass destruction.
According to President Bush:
“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. Legal scholars and international
jurists often conditioned the legitimacy of preemption on the existence of an
imminent threat—most often a visible mobilization of armies, navies, and air
forces preparing to attack. We must adapt the concept of imminent threat to
the capabilities and objectives of today's adversaries. Rogue states and
terrorists do not seek to attack us using conventional means...Instead, they
rely on acts of terror and, potentially, the use of weapons of mass destruction—
weapons that can easily be concealed, delivered covertly and used without
warning. The United States has long maintained the option of preemptive
actions to counter a sufficient threat to our national security. The greater the
threat, the greater is the risk of inaction—and the more compelling the case for
taking anticipatory action to defend ourselves, even if the uncertainty remains
as to the time and place of the enemy's attack. To forestall or prevent such
hostile acts by our adversaries, the United States will, if necessary, act
preemptively. The United States will not use force in all cases to preempt
emerging threats, nor should nations use preemption as a pretext for
aggression. Yet in an age where the enemies of civilization openly and actively
seek the world's most destructive technologies, the United States cannot
remain idle while dangers gather.”
Clear from above, the Bush Doctrine and the United States’ version of
preemption strike is not limited to the traditional definition of preemption—
striking an enemy as it prepares an attack—but also includes prevention—
striking an enemy even in the absence of specific evidence of a coming
attack. In the opinion of O’Hanlon, Rice, and Steinberg, while commenting on
the Bush Doctrine,:
“The idea principally appears to be directed at terrorist groups as well as
extremist or "rogue" nation states; the two are linked, according to the
strategy, by a combination of "radicalism and technology." The administration
asserts that deterrence of the kind that prevailed during the cold war is unlikely
to work with respect to rogue states and terrorists—which the administration
claims are not risk-averse—and which view weapons of mass destruction not
as weapons of last resort but as weapons of choice.”
While many states, statesmen, international law jurists, political scientists,
commentators, and common citizenry have criticized the United States’
adoption of an expansive preemptive, anticipatory, and/or preventive military
strike in the global fight against terrorism, few appear to have well-rounded
grasp of the dangers posed by non-state actors and rogue nations to the
United States, and as well, to the international community as a whole.
In understanding the background history of the emergence of the preventive
military strike jurisprudence in 2002, we must note that in the past, non-state
actors (terrorists, guerrillas, drug traffickers) appeared to be less threatening
to United States’ national security than the well funded, well organized, and
potent armed forces of an enemy nation-state. However, the terrorist attacks
of September 11, 2001 now illustrate, very candidly, that small groups of non-
state actors can exploit relatively inexpensive and commercially available
technology to conduct very destructive attacks over great distances. Thus,
the rationale for expansion of the preemption strike right is twofold: (a) to deal
with actors who cannot be reliably deterred, and (b) to address the enormous
threat posed by the spread of Weapons of Mass Destruction.
While supporting the expansion of international law jurisprudence on self-
defense, the superpower invoking the right of self defense, anticipatory
attacks, military incursions, and/or right of pre-emptive strike as a basis for
military action against another sovereign nation must bear a very high burden
of establishing the following elements:
1. That the nation against which military action was being considered
poses actual and/or immediate risk to
(a) their neighbors,
(b) international peace, and
(c) the international comity of states;
2. The nation arguing for military invasion of a failed state must have
suffered an 'injury in fact'—an invasion of a judicially cognizable interest which
is
(a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical;
3. There must be a causal connection between the actual and/or imminent
injury and/or risk alleged and the fact that second state has failed as a nation;
and
4. The actual and/or immediate risk and injury posed by failed states to
(a) their neighbors, (b) international peace, and (c) the international comity of
states would be redressable through foreign intervention, either by the United
Nations or through an international action authorized by the United Nations,
before the extreme action of military invasion would be permitted.
On the satisfaction of the above elements, through evidence satisfying the
“beyond reasonable doubt” standard, the United Nations, or any other
aggrieved state, may move to initiate military action against non-state terrorist
fugitives and rogue states.
The above additional strictures would enhance a cohesive and more inclusive
international action against terrorists who threaten international peace. In fact,
as Christopher Bolkcom and Kenneth Katzman had noted:
“Pursuing objectives against non-state actors while “winning the hearts and
minds” of local populations, or at least not alienating them, appears to be a
key consideration. Recent military action has killed or captured prominent
terrorists, but it is unclear whether this action actually degraded the terrorist
organization’s capabilities. In some cases, these actions may have even
strengthened them.” To be continued
Olumide K. Obayemi is admitted to the Bars of Federal Republic of Nigeria
and the State of California. He teaches Taxation Law at East Bay Law School,
Oakland California.
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