The Preemption Doctrines: On international law.

Keep me from the trap they have laid for me, and from the snares of evildoers!
— Psalm 141:9

How can the U.S. escape the procedural trap set by France and Russia? Similarly, how can the U.S. avoid the likelihood of fruitless and inconclusive weapons inspections — and endless Security Council negotiations — lasting months, if not years?

Perhaps Iraqi intransigence and noncompliance will once again provide clear justification for the use of force. But counting on Iraqi noncompliance, however likely, is no substitute for sound policy based squarely on defense of vital U.S. interests.

EDITOR’S NOTE: This is the third of a five-part analysis of the legal and moral aspects of the confrontation with Iraq. (Read Part II here and Part I here.)


1. FORCE OF EXISTING RESOLUTIONS, IRAQ'S NONCOMPLIANCE
The case for using force begins with the acknowledgement that existing Security Council resolutions provide solid legal grounds for using armed force to eliminate Iraq's banned WMD stocks and programs, given Iraq's massive noncompliance with the explicit disarmament terms of the Gulf War ceasefire embodied in Resolution 687 (1991). By its own terms Resolution 678, the legal basis for military action against Iraq, specifically authorizes member states "to use all necessary means" to enforce both Resolution 660 (requiring Iraqi withdrawal from Kuwait) "and all subsequent relevant resolutions," including Resolution 687 (requiring, among other things, Iraqi WMD disarmament).

The U.S. rightly maintains that Iraq's unconditional acceptance of Resolution 687 suspends, but does not terminate, authority to enforce its terms by force if necessary; and that Iraq's subsequent noncompliance — evidenced in part by the Security Council's own findings that Iraq was "in material breach of cease-fire terms" on seven different occasions between 1991 and 1993 alone — caused the ceasefire to lapse. Authority to enforce "all subsequent relevant resolutions" survives the ceasefire in any case, since Resolution 660 remains in full effect. A supporting policy argument holds the passage of time between breach and enforcement irrelevant, since rewarding Iraqi delay and defiance in this case (as the Council regrettably has done through repeated unilateral concessions) creates perverse incentives for Iraq — and for other offending states — in default of international obligations.

The counterargument turns on the distinction between express and implied authority, a matter of parsing winks and nods that is meat and drink for international lawyers but unintelligible pettifoggery for most others. If the Security Council meant for the U.S. to enforce its disarmament mandates, the argument goes, why didn't it just say so? (Short answer: no need; already has.) But this is ultimately a political issue, not a legal one, arising from the division of responsibility between authorization and implementation owing to the Security Council's practice of subcontracting or out-sourcing the enforcement of its resolutions. However strong the legal argument supporting the U.S. position — and it is one that the U.S. can and should continue to advance — it is not a winning political argument; and it needs to be supplemented by reference to permissible self-defense.

2. SELF-DEFENSE UNDER ARTICLE 51 AND UNDER CUSTOMARY INTERNATIONAL LAW
Article 51 the Charter preserves the "inherent right of individual and collective self-defense 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." Its language and history raise three relevant issues.

First, Article 51 properly acknowledges the "inherent" right of self-defense as an essential sovereign prerogative that precedes and survives adoption of the Charter.

Second, the Security Council has never exercised its authority to intervene in an interstate dispute by invoking Article 51. This provision is yet another dead letter that reflects the Council's failure to uphold its end of the collective-security bargain designed to limit resort to self-help.

Third, the existence and scope of the right to self-defense beyond the Article 51 limitation ("if an armed attack occurs") remains a matter of dispute among scholars and states. Many states (including the U.S.) have consistently maintained that Article 51 does not wholly circumscribe the exercise of this inherent sovereign prerogative, citing customary international law from before and after 1945. During the Cuban Missile Crisis, for instance, the U.S. pointedly refrained from citing Article 51 (or any "threat to international peace and security") in justifying its naval quarantine in the absence of a prior armed attack, referring instead to measures "taken in support of our own security" in order "to defend the security of the United States". Similarly, subsequent U.S. military actions against Grenada (1983), Libya (1986), Panama (1989) and Afghanistan and Sudan (1998) were all justified as exercises in anticipatory self-defense. At the same time, all these incidents reflect a longer and broader tradition supporting unilateral action in defense of vital U.S. security interests that first finds expression in the Monroe Doctrine (1823).

The leading source of customary international law supporting the principle of preemption remains the venerable Caroline incident (1837), an otherwise minor episode memorable chiefly for U.S. Secretary of State Daniel Webster's lapidary formulation of the essential elements of anticipatory self-defense (immediacy, necessity and proportionality). This hoary chestnut (considered by one eminent commentator as the locus classicus for the doctrine of self-defense generally) was cited by the Nuremberg Tribunal in rejecting Nazi claims of self-defense in attacking Norway.

The ill-fated steamship Caroline, which had been used to supply rebels against British rule in Canada, was attacked in American waters by British forces, set afire and sent on its way over the Niagara Falls, killing or injuring several American sympathizers. In a later (1841-2) arbitration settled by an exchange of diplomatic notes, Webster protested the violation of U.S. sovereignty and maintained that the claim of self-defense required the British to "show a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation." Permissible self-defensive measures should "involve nothing unreasonable or excessive; since the act, justified by the necessity of self-defense, must be limited by that necessity and kept clearly within it."

Two difficulties arise in applying this precedent to the Iraqi threat (as measured by capacity and intent). First, Iraq's destructive potential far outweighs the menace posed by a band of Irish insurrectionists headquartered in a Buffalo tavern; comparison risks measuring apples and oranges. Second, Webster's unduly restrictive formula ("no moment for deliberation") makes little sense on its own terms by literally ruling out the weighing of ends and means ("no choice of means"), the development of policy guidance or, indeed, moral choice and agency. Nor does it offer any opportunity or set applicable standards for measuring hostile intent, a telling contrast with the richly developed Anglo-American jurisprudence of criminal intent (mens rea) that highlights the more general difficulty posed by the relative paucity of relevant international law. Here, as elsewhere, there's often less to international law than meets the eye.

Two more recent episodes also offer uncertain legal guidance. First, the U.N. Security Council pointedly declined to condemn Israel's preemptive strike at the outset of the 1967 Six Day War, partly because its adversaries' capacity (troops massed for attack) was clearly visible and their intent clearly shown by public rhetoric and intercepted communications. The U.S. by contrast faces a loaded (and pointed?) weapon in Iraq's WMD arsenal, but is unlikely to obtain a "smoking gun," given the nature of the regime and the general tightening of communications security following the release of Libyan telexes (1986) and al Qaeda satellite phone transmissions (1998) boasting of successful terrorist attacks against U.S. targets. Second, Israel's 1981 airstrike against Iraq's Osirak reactor offers a similarly mixed picture: strong public condemnation accompanied by private diplomatic expressions of relief and satisfaction, followed by a generally favorable historical verdict. In any case, the Security Council's sharp rhetorical condemnation (SC Resolution 487) pointedly omitted any finding of an actionable threat to international peace and security, the legal predicate for mandatory sanctions.

State practice otherwise suggests that Article 51 has become an historical artifact created by a generation that regarded Hitler's cross-border invasion of Poland as the sole relevant paradigm for all future aggression. A more nuanced understanding of self-defense would do well to take into account principles suggested by figures as diverse as the dovish U.S. Catholic bishops and the hawkish U.S. secretary of war, Elihu Root. In two major statements after last year's September 11 attacks, the bishops twice cited "a moral right and a grave obligation to defend the common good against such terrorist attacks," an implicit acknowledgement that pacifism may be a morally acceptable option for individuals, but not for states. How states fulfill that duty is a matter of prudence that is clarified by Root, a prominent New York lawyer who also served as secretary of state and was a founder of the American Society of International Law. In the inaugural edition of that body's journal, Root emphasized "the right of every sovereign state to protect itself by preventing a condition of affairs in which it will be too late to protect itself." However much circumstances have changed since 1914, Root's observation remains pertinent.

3. CURRENT LACK OF CONSENSUS ON LEGITIMATE USES OF FORCE; NEW THREATS TO PEACE AND SECURITYInternational law is a voluntary system that relies above all on state consensus. Nor is it self-enforcing, relying as it does on states in the absence of an ultimate arbiter capable of judging disputes between states and enforcing settlements even where vital national interests are at stake. But NATO's 1999 military intervention in Kosovo without prior Security Council authorization rudely shattered whatever fragile consensus that may have existed regarding legitimate uses of force.

In the face of mounting Serb repression and ethnic cleansing in Kosovo, the Security Council had repeatedly defined the crisis as a threat to international peace and security, rather than a purely internal matter, even though Serb depredations (though not their effects) were confined within the borders of the former Yugoslavia. Yet despite establishing the legal predicate for armed intervention, proponents elected not to seek Security Council authorization in the face of a certain Russian (and possibly Chinese) veto.

None of NATO's 19 members — all functioning democracies accountable to public and legislative opinion — sought to justify intervention on grounds of self-defense, thus raising familiar questions of ends and means. Nor were any vital national interests at stake, except indirectly. Yet intervention secured (almost) universally acclaimed ends (halting egregious human rights violations) by technically illegal means, with the Security Council paralyzed in its customary supine posture of willing ends but not means. Even U.N. Secretary General Kofi Annan, nominally the servant of the Security Council, was moved to acknowledge: "It is indeed tragic that diplomacy has failed, but there are times when the use of force may be legitimate in the pursuit of peace."

Notwithstanding its technical illegality, elite international opinion supported intervention in roughly the same proportion that it now opposes U.S. military preemption against Iraq on precisely the same ground (due authorization) earlier dismissed as a trifling legal nicety by the Great and the Good. Whatever this abrupt volte-face means, it surely indicates that pretexts are by not means the sole prerogative of great powers, contrary to the assumptions that guide many international lawyers.

Another relevant aspect of the Kosovo crisis is the diminished respect shown for national sovereignty in relation to universal values and norms (basic human rights in this case). It reflects the last decade's trend toward a more permeable understanding of sovereignty than the Westphalian concept enshrined in the Charter's blanket prohibition against U.N. intervention in purely internal matters under Article 2(7). And it provides essential context for the Security Council's earlier decision to strip away essential elements of Iraqi sovereignty in service of a greater international common good (WMD disarmament).

Procedural perfectionists, however, set their faces squarely against NATO intervention as a dire precedent that great powers (especially the U.S.) would surely abuse to justify armed intervention for improper reasons. This reflects an unduly abstract model of the way the world should work (at least by its proponents' lights) but seldom, if ever, actually does. And it leads to absurd conclusions whereby every purportedly non-defensive military action — how and by whom judged without Security Council determinations in most cases? — is by definition an illegal and illegitimate violation of a make-believe international legal order. Hence these observations by Tufts' Michael Glennon, one of the foremost authorities on the Charter's use-of-force regime:

The international system has come to subsist in a parallel universe of two systems, one de jure, the other de facto. The de jure system consists of illusory rules that would govern the use of force among states in a platonic world of forms, a world that does not exist. The de facto system consists of actual state practice in the real world, a world in which states weigh costs against benefits in regular disregard of the rules solemnly proclaimed in the all-but-ignored de jure system. The decaying de jure catechism is overly schematized and scholastic, disconnected from state behavior, and unrealistic in its aspirations for state conduct.

It is precisely this reasoning that President Bush seeks to challenge by arguing that the U.N. Security Council risks irrelevance for failing to confront such disagreeable realities of power politics as Iraq's repeated defiance of the Council's own resolutions.

4. THE PROPER ROLE OF INTERNATIONAL LAW In considering a preemptive military strike against Iraq, the U.S. needs to take into account international law while acknowledging its genuine limitations: its lack of clarity, certainty and — above all — essential supporting consensus with respect to the use of force. But international law is not meant to serve as the sole basis for U.S. policy, still less as a substitute for the careful weighing of interests, values and other concerns (including legal ones) that is the task of prudent statecraft.

No doubt public international law, which governs relations between states, generally serves essential purposes not easily duplicated by other means. Particularly in matters governed by treaty law where reciprocity obtains, agreements are generally honored and disputes routinely settled in the ordinary course of events. But where vital interests are at stake in a disorderly, Hobbesian world, self-help (including the use of force in exceptional circumstances) remains an essential and appropriate option. That is why the U.N. Charter preserves and acknowledges the inherent right of self-defense. It is unrealistic to maintain, as do procedural perfectionists, that taking into account actual state practice merely allows robbers to write their own rule. For this claim merely emphasizes one basic difference between domestic and international legal systems: a central authority capable of enforcing agreed rules (by punishing robbers, for instance) that in turn relies on popular consent for legitimacy.

What is worrisome is the European view that international law serves chiefly as an instrument to restrain American freedom of action — in other words, as a snare. That is precisely how one unnamed diplomat described the Security Council debate on Iraq: "The whole debate is about two issues. One is Iraq. The other is U.S. power in the world. The second issue is the bigger part of the debate." If that view continues to prevail, the present system is well and truly finished.

The basic role of international law is to maintain minimum world public order. But at present there is no accepted international authority capable of resolving authentically new questions posed by the menace of irresponsible states armed with WMD. The case of Iraq underscores the urgency of fashioning a new and more effective set of rules supported by the full spectrum of American power: moral, political, economic, diplomatic, and military. Both U.S. national interests and the evolving international common good will ultimately share a common basis in the venerable Ciceronian maxim: salus populi est suprema lex, roughly rendered as holding preservation of the common good to be the ultimate law.