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August 20, 2002 Introduction The official line from the White House is that President Bush has made no decision about whether to attack Iraq. Indeed, the President says that he does not even have a timetable for deciding. However, the possibility of an attack has been under debate for so long, and so openly, that most observers take it for granted that the administration intends to strike against Saddam Hussein’s regime within the next six months. The prospect has provoked unease among some US politicians, and outright protests from many European allies. Some of the misgivings relate to practical or strategic questions: How difficult would it be to win? What kind of regime would replace Saddam Hussein? What would be the wider consequences for the Middle East? Alongside these questions, however, there has been increasing debate about the legal authority under which an attack would be carried out. After all, the kind of operation that seems to be under consideration would mark a major departure from accepted international practice: an attack against a sovereign state, aimed explicitly at removing its internationally recognised government, without specific authorization from the United Nations Security Council, not in response to a prior act of aggression, and carried out not by a multilateral organization but by the world’s greatest military power, acting alone or with the backing only of a few loyal allies. It is sometimes said that an attack would be justified because of Iraq’s refusal to allow weapons inspections in line with Security Council Resolution 687, which established a ceasefire at the end of the Gulf War in 1991. However the resolution did not make the ceasefire conditional on Iraq’s future cooperation with inspections; instead it said that the Security Council "decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area". This seems to imply that another Security Council resolution would be needed to authorize further military action, and that has been the position taken by most international statesmen. For instance, French President Jacques Chirac said on July 30 that an attack "could only be justified if it were decided on by the Security Council," and German Chancellor Gerhard Schroder said there would be no support in Germany for a strike "without approval of the United Nations". In any case, the Bush administration has prepared the ground for an attack by developing a different justification: that an attack against Iraq would be an act of self-defence. Because of the new threats that the United States faces, it is claimed, a proper understanding of the right of self-defence should now extend to authorizing pre-emptive attacks against potential aggressors, cutting them off before they are able to launch strikes against the US that might be devastating in their scale and scope. This guiding principle is being worked up as a central tenet of the United States’ strategic posture – as a "Bush doctrine". The fullest exposition was given by the President in a speech at West Point on June 1. Warning that the United States faced "a threat with no precedent" through the proliferation of weapons of mass destruction and the emergence of global terrorism, Bush said that the traditional strategies of deterrence and containment were no longer sufficient. Deterrence meant nothing "against shadowy terrorist networks with no nation or citizens to defend" and containment could not work "when unbalanced dictators with weapons of mass destruction can deliver those weapons on missiles or secretly provide them to terrorist allies." Under these circumstances, he concluded, "If we wait for threats to fully materialize, we will have waited too long." Administration officials have stressed that the kind of pre-emptive actions that are envisaged by this doctrine are not exclusively military; nevertheless it clearly allows for armed strikes as a last resort. Although Iraq is the most obvious case in which a policy of pre-emptive self-defence might be invoked, the doctrine is intended to have wider application. Officials have spoken of a hypothetical case in which Islamic militants in Pakistan gain control of a nuclear weapon. According to newspaper reports, some in the administration have raised the possibility of a pre-emptive strike against the Bushehr nuclear power plant in Iran, which is likely to become active in the next couple of years. What is the status of pre-emptive self-defence in international law, and how does it apply to US policy toward Iraq in particular? The Crimes of War Project asked five prominent international experts for their views. Although their opinions were divided, they all recognized that the Bush administration’s proposals raise fundamental questions about the nature and scope of international law. Self-Defence in the UN System The starting point for any discussion of the subject is Article 51 of the United Nations Charter, which says that "nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security." Although the wording of the article appears clear – the right of self-defence is generated when an attack occurs, i.e. the attack must be occurring before the use of force in self-defence is legitimate – our experts pointed out a number of possible ways in which the picture may in fact be more complicated. According to Thomas Franck, Director of the Center for International Studies at NYU Law School, and author of a forthcoming book on the use of force in international law, the interpretation of the UN Charter was deliberately left up to the principal bodies of the UN itself (especially the Security Council). This has allowed for a certain flexibility in the interpretation of Article 51, and in practice the UN has granted some leeway "where there is very clear evidence that an armed attack, having not yet occurred, is nevertheless imminent and would be overwhelming, and would make the awaiting of the armed attack disastrous for the attacked country." Franck argued that the organs of the UN performed "a sort of jurying function, in trying to apply the law in a reasonable fashion" in light of international developments that might not have been foreseen in 1945. In a similar vein, Martti Koskenniemi, Director of the Erik Castren Institute of International Law and Human Rights at the University of Helsinki in Finland, said that the right of self-defence articulated in the UN Charter "should be read rationally against the useful purpose the rule is intended to serve." Koskenniemi argued that the purpose of Article 51 was "to protect the sovereignty and independence of the state," and therefore that a state that felt its sovereignty and independence to be threatened by the actions of another country, might be entitled to use force against that country, even if the country’s hostile actions had not yet risen to the level of an actual armed attack. A number of experts mentioned the fact that the language of Article 51 talks of an "inherent right" of self-defence, and pointed out that this has been held by some people to imply that the right of self-defence that existed in customary international law before 1945 might still apply – co-existing, as it were, with the UN Charter. As Michael Byers, Associate Professor at Duke University School of Law, explained, customary law traditionally recognized a limited right of pre-emptive self-defence according to what are known as the "Caroline criteria". These date back to an incident in 1837, during a rebellion against British rule in Canada, when British troops attacked a ship (the Caroline) that was being used by private citizens in the United States to ferry supplies to the rebels. After a long diplomatic correspondence between the US Secretary of State, Daniel Webster, and the British Foreign Office minister Lord Ashburton, a form of words was agreed to govern acts of anticipatory self-defence: there must be "a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation" and the action taken must not be "unreasonable or excessive". When is a First Strike Acceptable? If one accepts that some right of pre-emptive self-defence might exist under international law, the next question is how far it extends. Of the experts we spoke to, Byers took the narrowest view of this point: he said even if there was a right of striking first, it could only exist when the country affected had no time to take the issue to the United Nations. Under the wording of Article 51, Byers argued, "you have the right of self-defence until such time as the Security Council takes action. And therefore it’s implied that if you have the time to deliberate and to go to the Council before you take pre-emptive action, then you have to go to the Council." In other words, Byers argued, the Bush doctrine was clearly illegal: "There’s no suggestion that Iraq is going to attack the United States tomorrow or next week, or that any of the countries that potentially fall within the scope of military action justified by the Bush doctrine are immediate threats." Rather, Byers said, the policy was aimed at "effectively closing down dangerous regimes before they become imminent threats" and thus represented a usurpation of the Security Council’s role in global affairs. Koskenniemi disagreed with the argument that the right of self-defence only existed until the Security Council had a chance to address the crisis. He said that if the Security Council failed to take action that was sufficient to meet the threat (which, he suggested, was what the history of the Security Council would lead one to expect) and the security of the threatened state continued to be at risk, then the right of self-defence still existed. "I cannot conceive of an actual situation where the Council’s action would extinguish the attacked nation’s right of self-defence," he said. In the specific case of the United States and Iraq, however, Koskenniemi said that he did not see that Iraqi actions posed a severe enough threat to the United States to justify a pre-emptive attack. As an indication of what might indicate a sufficient threat, he said there should be evidence that the Iraqi leadership "is in possession of some sort of weapon, plus a means to get it to the United States, plus actually intending imminently to do that… but otherwise not." (Koskenniemi acknowledged, though, that if he were the legal advisor to the US government, he might take a somewhat different view. In the end, he said, the legality of such actions was determined by how they washed with the international community, and that was dependent on "a complex mix of politics, culture and other people just looking elsewhere.") Eyal Benvenisti, Director of the Minerva Center for Human Rights at the Hebrew University of Jerusalem, said the legitimacy of an act of pre-emptive self-defence depended on whether there were "means other than actual fighting to prevent the threatened attack." He compared the situation of a country under threat to that of an individual under domestic law – in both cases, if you acted in self-defence, you then faced the burden of persuading the relevant authorities after the event that you had acted reasonably: "You have to convince the international community that you acted in self-defence, that you had no other choice, and that is similar to the situation of an individual within a society. I mean, everyone has a right of private self-defence, when you are being attacked personally and you cannot call the police… and then the question of whether you acted in self-defence will be judged ex post facto." Terrorists and Weapons of Mass Destruction Benvenisti said he sympathised with the Bush doctrine in one respect – the argument that terrorist groups could not be treated according to the same rules as ordinary states. Using an analogy from games theory, he said terrorist groups were not "repetitive players" who had a mutual interest in upholding the acknowledged rules of the international system (as states do); they themselves would not be inhibited in any way by the prohibition on the use of force in international law. Terrorists, he suggested, were more like criminals acting on a global scale, and therefore should be treated according to the "logic of police action". The police can act before a crime has actually taken place; similarly there would be a case for taking action against terrorists who had acquired a dirty bomb, even before there was concrete evidence that they were planning to detonate it imminently. With states like Iraq, though, Benvenisti argued that the conventional rules still applied. It was essential to the international system to have a clear principle that "no single country has the capacity to make a judgement over the intentions of another country". Therefore if there were still time for diplomacy, a military strike (for instance against a country that was about to acquire a nuclear capability) would not be authorized under Article 51. But, Benvenisti pointed out, acts that were technically illegal might nevertheless be excusable if their long-term consequences came to be applauded by the international community. To illustrate this, he referred to the Israeli military strike against the Osirak nuclear reactor in Iraq in 1981. (The point is somewhat complicated by the fact that, according to some people, Israel has been in a technical state of war with Iraq since its foundation, since Iraq refused to join the armistice with Israel in 1949; therefore it can be argued that the attack was not in any case an isolated act of aggression.) At the time, the Security Council unanimously condemned Israel’s action as an illegal use of force. But now, Benvenisti argued, "it might be seen differently". After Iraq invaded Kuwait in 1990, a number of people began to argue that Israel’s attack "might not have been such a bad idea." Extending this point, Terence Taylor, Deputy Director of the International Institute for Strategic Studies, and formerly a Chief Inspector for the UN Special Commission on Iraq, said that the prospect of Saddam Hussein acquiring weapons of mass destruction was sufficiently grave that a pre-emptive attack by the United States would be legitimate. He pointed out that in 1992 the Security Council had ruled that the proliferation of weapons of mass destruction was a threat to international peace and security, and said that the danger was particularly acute in the case of Iraq, given their record: "This regime has already used weapons of mass destruction – against the Iranians and against their own people…they’ve already invaded a neighbouring state. So the track record is not very promising, to say the least." Taylor argued that an invasion of Iraq might not be politically wise, or militarily feasible. He argued that it would be good politics for the United States to try to secure a Security Council resolution if it intended to attack. But he said that Iraq represented a uniquely dangerous case, that it was reasonable to think that it could present a genuine threat to the United States and its allies, and that therefore military action by the United States would be justified. The Dangers of Unilateralism Franck, however, argued that it was inherently undesirable for the United States or any other country to take pre-emptive action unilaterally. He characterised the difficulty posed by anticipatory self-defence as that of finding a reasonable middle ground between the reductio ad absurdum of two extremes: "If you insisted that a small country wait for a neighbour to attack it with nuclear weapons before responding… everybody would just say the law is an ass. On the other hand, if you have a law which says that any country that feels threatened is free to attack any country from which it feels the threat is emanating, then you don’t have a law at all." In the case of the United States and Iraq, Franck sketched out what a reasonable interpretation of the law would demand: that the US show other states (starting with the Security Council and NATO) evidence to suggest that Iraq is supporting the use of force by terrorist organizations against a member (or several members) of the United Nations. Without such evidence, "you probably shouldn’t do it, because everybody is going to assume that you’re acting for other motives." That would destabilise the international system, because other countries would see the Bush doctrine as a potential threat to themselves. Extending this point to a general principle, Franck said that when you had a rule in international law that had to be interpreted reasonably (as with the right of self-defence), the process by which it was interpreted became more important than the substance of the rule itself. It could not simply be interpreted by a single country, with no attempt to persuade other countries of the necessity of its actions. "If the process [of interpreting the rule] is an entirely unilateral one, in which the strong do as they will, and the weak have to accept it, then we’re right back to the Peloponnesian wars, and I think most countries would resist that." Conclusion Among our experts, the principles of the Bush doctrine met with a wide spectrum of responses. On one extreme, Byers argued that even if there were some legal right of pre-emptive self-defence, the Bush doctrine was so far beyond it as to be transparently unlawful. On the other, Taylor said that the proliferation of weapons of mass destruction made the claims of the administration reasonable, when dealing with extreme cases like Iraq. Between these positions, our other experts maintained that some forms of pre-emptive self-defence were legitimate, but all questioned whether an US attack on Iraq would meet the necessary tests. Clearly, the strongest way for the administration to win support for its actions would be to provide convincing evidence that Iraq is working with terrorist groups in a way that threatens the use of weapons of mass destruction against the United States or its allies. Significantly, the British government is said to be compiling a dossier on Saddam Hussein’s biological weapons programme; the Times of London reported on August 3 that "the latest assessment in Washington and London is that Saddam’s plan is to produce a basic weapon that can be used by a terrorist group to attack the Iraqi leader’s enemies, the United States and Israel." Since the September 11 attacks, such claims have often been floated, but so far nothing more substantial has emerged to confirm them.
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