10 Nov Our So-Called GWOT and Anticipatory Self-Defense
In his recent post, Julian wrote that the secret U.S. military raids in Syria, Pakistan, and other countries may be (in his view) easily justifiable under U.S. law, but that the issue of legality
is much harder to answer as a matter of international law – indeed, it would have to be some theory of preemptive self-defense. Expect to see denunciations of these raids from international lawyers in the next few days, as well as from foreign governments on the list of countries named in the order.
I think Marko Milanovic and other commentors have done a good job looking at the international legal problems. For an argument concerning whether international law is evolving regarding the use of force in counter-terrorism activities, I would recommend Jose Alvarez’s Hegemonic International Law Revisited, 97 American Journal of International Law 873 (2003).
Moreover, for further perspective on the domestic legal and policy issues concerning anticipatory self-defense, I want to point to a recent op-ed in the Arizona Republic by Amos Guiora (a former Israeli Defense Force Lieutenant Colonel and a law professor) and Daniel C. Barr (a U.S. lawyer). As I had mentioned in an earlier post, Guiora has been grappling in his scholarship with the issue of legal regulation of anticipatory self-defense both under U.S. and international law; this op-ed tries to rescue the idea of anticipatory self-defense from the excesses of the Bush Administration and argues for requiring participation of the other branches in decision-making. They wrote, in part:
Unlike much of the last seven years… pre-emptive attacks must be based upon the objective analysis of viable, valid and corroborated intelligence.
Policymakers must understand anticipatory self-defense in both its historic and contemporary contexts. We must fully understand its past failures from the large scale of the invasion of Iraq to individual scale of the Mossad’s mistaken 1973 assassination of a Moroccan waiter in Norway who was misidentified as a Black September terrorist.
The United States must be able to act earlier than what is currently contemplated by international law. Depending on the circumstances, either a select congressional committee or a reconstituted Foreign Intelligence Surveillance Act court should review the intelligence information available to the executive branch before a pre-emptive attack is launched.
What sort of questions should be asked to evaluate intelligence to determine whether a pre-emptive attack is justified? Whether it is deciding to attack a suspected individual terror bomber before he acts or a suspected terrorist base within another sovereign country, the basic questions are similar to those asked by legal advisers in the Israel Defense Force to commanders in the field who are requesting permission to “shoot to kill” a suspected terrorist.
Who is the source of the intelligence? Has the commander directly spoken with the case officer who spoke with the source or has the information been relayed through several people? Does the commander believe the intelligence information? Has the information been corroborated? What are the alternatives to an armed attack? How significant is the risk presented? Can harm to innocent people be minimized? Do we know that the target has prior affiliation with a terrorist group? What weapons are available to the commander?
This checklist would enable our country to protect itself. The threats we face are too enormous not to resort to anticipatory self-defense. Recent history suggests it is too fraught with danger to be left solely to an executive’s discretion.
This construction of the problem may not satisfy all of the international law critiques, but it does get away from domestic arguments arguments based so completely on unitary executive theory as to make the rule of law (and democratic accountability) all but non-existent. One thing is likely: anticipatory self-defense as a practice, if not a legal doctrine, will remain a contentious issue in U.S. politics.
I continue to believe that the notion of “anticipatory self-defense ” is simply dishonest and irrational, and I don’t think it’s possible to be confused if one simply applies the concept to ordinary murder, assault, and vandalism.
Shall we have the police just go about selecting those whom they think are most predisposed to commit crimes and either incarcerate or execute them?
How many of the 6.5 billion people on the planet would we have to exterminate before Dick Cheney, Julian Ku, or Ken Anderson would feel safe from attack?
How many of those people have legitimate grounds to attack us in order to defend against our actual (not merely anticipated) aggression?
Julian Ku & Co. aren’t fortune tellers or psychics, and the problem here isn’t one of intelligence but actual evidence. If you want to kill or incarcerate people simply on the basis of estimated probability, then my suggestion would be start with Republicans, because the available evidence says they are a lot more dangerous than Al Qaeda is — it’s not even close.
But in reality, a criminal is just a criminal, a crime is just a crime, and committing crimes isn’t a defense against anything.
I don’t think it would be wise to dismiss the possibility of the legality of an anticipated self defense, too quickly. However since we are rather discussing the issue in times of Bush Doctrine and GWOT, we tend to ignore the basic legal yardstick in this field, “necessity”. Not only military necessity but also the necessity to secure a home for future generation, a ruler is obliged to stay vigilant and to protect/defend against forthcoming attacks/aggression. Bearing this in mind, I would tend to believe that there MAY be such instances where you have to attack the (will-be) aggressor, before he realizes his plans. Enter the higher destruction capacities of the newly developed weaponry, this responsibility gets more serious. That said, IL guys and diplomats should strive to find out an objective formula, to prevent misusing for this line of thinking (pro anticipated S-D) is often prone the misuse. I would argue that the Israeli counter attack of 1967 was a proper example of how justifiable a SD -though a little anticipated- might be. Again, 1984 (?) Osirak (?) op. was usually deemed as an unjustified operation against Irak, by the same actor, Israel. So there may be conditions legitimating an anticipated… Read more »
The approach suggested above may not purport to deal with the international legal problem (and seems to deal solely with the ius in bello anyway, leaving the thornier ius ad bellum issues to hang, more or less) but even so there remains the problem of working out where criminal law ends and the laws of war begin, and this would seem to be as significant a problem for US domestic lawyers as it is for international lawyers. At what point in the history of a terrorist action do those involved transform from criminal conspirators into ‘unlawful combatants’? Does it depend on the formation of some specific intention on their part, or the performance of specific acts of preparation? If we’re going to grant the law of war exemption from general criminal prohibitions on killing to state agents acting outside the traditional context of armed conflict and in what appear to be civilian situations we need identifiable criteria to trigger the exemption. In order to give an appropriate level of protection to innocent targets, and to ensure that this power is used only where it is essential, significant errors in the planning process should prevent the exemption being applied. In other… Read more »
I think we’re stuck with the fact that this is a matter of law enforcement, not war, and the only thing treating it a war does is make the situation worse by reducing both sides to the status of criminals and terrorists.
You can call it anything you want, but attacking someone is attacking someone. There are six and half billion people on the planet, and the only way anyone can be absolutely secure from any possibility of attack is to exterminate all of them.
So do the math and state your formula for how much chance of an attack you need before it’s OK for you to attack someone else without a valid reason — this is just a false paradigm, and it’s really easy to understand if you simply stop to think about why we don’t allow preemptive “self-defense” against potential murderers or robbers in day to day life.