How to Stop Worrying and Learn to Love Preemptive Strikes

by Roger Alford

I just published at Huffington Post my last post on the UCLA nuclear threats conference entitled, How to Stop Worrying and Learn to Love Preemptive Strikes. Here is an excerpt:

[T]here were a few who did suggest the appropriateness of preemptive strikes. Berkeley political scientist Bob Powell said that defense and deterrence were synonymous and that the real question was the threshold of confidence needed to justify preemptive action. “When an attack is imminent then there is almost no doubt and it is not hard to imagine a preventive strike. … But if you consider the cost of waiting, then the threshold needed to justify an attack is going to go down.” But he concluded that the costs of preventing the spread of nuclear weapons are very high and we should learn to live with nuclear states. We may not like it, but we can live with it.

Those comments resulted in a smack down by Tel Aviv international law professor Yoram Dinstein. He began by saying his remarks “would be the only words of legal sanity you are going to hear at this conference.” He summarized the U.N. Charter rules on self-defense and argued that “unilaterally no state has a right to respond to a mere threat.” Dinstein then offered a way out of the international law box by using what he called “creative accounting.” Rather than rely on preemptive strikes, he said one should utilize the tools of incidents, interceptions, and ongoing engagements.

An incident supposes that at some point Iran will misstep and there will be a minor skirmish precipitated by Iran. That incident is all the legal justification you need to respond in self-defense. An incident was used as sufficient provocation in the recent Israeli-Lebanese war, and it could have been used in Kosovo because of cross-border skirmishes.

An interception presupposes that the other side has launched something first, which then justifies military action. Dinstein said the Japanese attack on Pearl Harbor could have been met with an American interception long before they ever reached Hawaii. Self-defense does not require the consummation of the first strike. It’s not clear when a first strike begins, but it begins before the moment it ends.

And his third tool was ongoing engagements. The Iraq war was legal as part of the ongoing engagement which began with the Persian Gulf War. The Israeli strike on nuclear facilities in Iraq in the early 1980s was part of ongoing hostilities between the two countries spanning fifty years.

What are the ramifications of this creative legal accounting? It’s not clear. But presumably a strike on North Korea could technically be justified as part of ongoing hostilities in the Korean peninsula spanning decades. Presumably terrorist bus bombings in Israel are a sufficient incident to justify self-defense against the state sponsors. Iranian support of Iraqi insurgents could justify retaliation by Iraq and its allies. And perhaps Ahmadinejad’s incitement to genocidal attack on Israel is enough to justify an interception. Does a call to destruction constitute the first constituent act in the delivery of that destruction? Using creative accounting, one can stop worrying and learn to love a preemptive strike. After all, it’s not really preemption. It’s an incident, interception, or ongoing engagement.

In addition to my earlier post on William Perry’s keynote, other Huffington Post pieces on the UCLA conference were offered by Daniel Drezner here and Wesley Clark here. Kudos to Kal Raustiala and Wesley Clark for a great conference.

http://opiniojuris.org/2007/03/08/how-to-stop-worrying-and-learn-to-love-preemptive-strikes/

6 Responses

  1. I think perhaps you are confusing preventive and pre-emptive action. I don’t think anyone denies the right to a pre-emptive strike (if it is clear that an attack is imminent). Also, when one worries about nuclear annihilation legal details lose significance. Is saving several cities worth breaking international law? I’d hope so.

  2. Having read the whole post, I think it’s important to keep the remarks in context. Powell’s work is mainly modeling deterrence games; given a situation, at what point would the benefit of a nuclear strike outweigh the cost? Recall that our Cold War nuclear strategy relied upon unilateral escalation; if the Soviets sent in tanks, we were going to use (limited) nukes. Neither of us ruled out the possibility of a first strike. This serves to make deterrence more credible; Iran knows that we are not going to obliterate them with nukes if they do not hit us first; such threats are not credible. But limited threats could be carried out, and so will be much more effective.

  3. “[T]he only words of legal sanity you are going to hear at this conference”? Possibly, but I still respectfully disagree with Prof. Dinstein on all three of his ways of creative accounting.

    Incident: a minor incident may well give rise to a right of self-defence (if it either satisfies the severity test set out in the Nicaragua case, or that test is wrong in law). But the force used in self-defence will have to be proportionate to the defensive aim pursued (Nicaragua and Legality of the Threat or Use of Nuclear Weapons), and it is difficult to see how an attack on a nuclear installation, presumably far away from the skirmishes giving rise to an Article 51 claim, could satisfy this requirement.

    Interception: I agree with jvarisco that the right to use force in self-defence against an imminent attack is very nearly undisputed. This would have applied when the Japanese aircraft were approaching Pearl Harbor. But, again, the principle of proportionality would have applied. The U.S. could have intercepted the attack (and this would probably have included a right to sink the Japanese carriers), but it is, again, difficult to see why the U.S. should also have been entitled to destroy armaments factories in Tokyo, without more enemy action.

    Ongoing engagements: I am aware that Prof. Dinstein has justified the (last) Iraq war on this basis in his latest edition of War, Aggression and Self-Defence. This may well be the best argument yet put in defence of that campaign. Nonetheless, I entertain some serious doubts, which I will express with some diffidence. I would be most grateful for a reply.

    The fact that an armed conflict exists between two States says nothing about whether they are entitled to use force, i.e. to have this conflict in the first place. Whether an armed conflict exists is a question governed by fact, not by legal entitlement, that is obviously relevant to the jus in bello, but not to the jus ad bellum. If it were otherwise, how could the limitations of proportionality, and of the subsidiarity of self-defence to Security Council action, in Article 51 of the Charter be explained? Surely, if the existence of the armed conflict somehow allows for its continuation, there can logically be no end to the legitimacy of the use of force, whether based on these rules or on any other grounds.

    Of course, in the ordinary case of self-defence against a present armed attack, it will do no harm to examine every single act of the use of force under Article 51 of the Charter. Every single act will still be proportionate to defence against the original attack, and possibly against renewed acts of aggression in the course of conflict.

    This will only be different once the defensive action is over, and has been for some time. That is the situation under discussion here.

    Also, the test of whether there is an (ongoing) armed conflict would seem to be one of fact. If that is so, how can the armed conflict, in its alleged function of allowing for further hostilities, be said to persist until well after the end of the original engagement?

    How, indeed, could the Security Council have affected this question in Res. 1441?

    Besides, the notion of an ongoing engagement is evidently open to the most horrendous abuse. Indeed, the claim that Israel and Iraq have been at war for fifty years seems particularly ludicrous. (Of course, the reference to the 1981 – ? – attack on the Osirak reactor is also surprising for the simple reason that it was widely condemned at the time.)

    I am also – dimly – aware of provisions in the Hague Regulations that might be cited in support of Prof. Dinstein’s position, but they evidently predate even the Pact of Paris (or Briand-Kellogg Pact). They would therefore seem to have little to say on the jus ad bellum, as it appears today.

    As I say, I am not entirely sure my critisim on the last point (ongoing engagement) holds water. I will continue to think about this.

    Assuming I am right, my disagreement with Prof. Dinstein might be less severe than could be imagined. After all, the very term “creative accounting” seems to be faint praise indeed for the three options he presented.

  4. I agree with Tobias above that such an open-ended definition of “ongoing conflict” presents, to use domestic terminology, a nonjusticiable standard. To take it to its logical extreme, the United States could without consent perform military operations in any country that housed or supported any anti-US group. But, under these terms, the use of force language under the UN Charter has no meaning (although, to put my cards on the table, I do agree with this position as a policy matter).

    However, what I think we see is emerging custom regarding in-group, out-group states — custom suggested by US, UK and allied policy regarding repressive regimes (including that of Milosevic), certain UNGA resolutions, and the behavior of those countries in the world with the most invested in international security (with the obvious exception of Russia). But this is blue water territory, and so no true custom on these points will emerge, if it ever does, in the unforeseeable future.

  5. Well said Tobias. As you probably gathered from my tongue-in-cheek post, I think the legal arguments Dinstein proposes are a bit of a stretch. I think for example that he may well be right about the Iraq War as an ongoing engagement that started with the Persian Gulf War, but he can’t be right that the Israeli attack in 1981 was part of ongoing hostilities between the two countries. It just proves too much.

    Of course, this doesn’t mean that David Sloss and others are not correct that if we truly do face nuclear annihilation the constraints of international law will not be a critical factor in our calculations.

    Roger Alford

  6. Creative accounting gets you into the hotwater of Enron. Dubious propositions which seem to have little concern for the questions of proportionality. Dinstein smacks of pretexting – we’ve been there with the Gulf of Tonkin Resolution and the Iraq war.

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