Abstract
Sure, it was a lousy idea when put into play in Iraq. But don't think the concept has disappeared–or that it's going away any time soon.
President George W. Bush stunned the international community in 2002 when he announced that taking preemptive military action was an acceptable option for coping with the new threat environment characterized by transnational terrorism and the proliferation of weapons of mass destruction. The president was harshly criticized, particularly in Europe, for spurning international law, which severely restricts an individual state's use of military force to defensive purposes only.
Today, the European public tends to think of preemption as an idea that failed and has been abandoned. The Iraq War has turned from a perceived cakewalk into a quagmire, the treatment of prisoners at Guantanamo Bay and Abu Ghraib has bankrupted U.S. moral authority in the Arab world and beyond, and nearly all the major intelligence services have made fools of themselves. As a result, the debate on preemptive strike would appear to be over before it had fully evolved. Many take it for granted that in his second term Bush will not dare undertake another act of “anticipatory self-defense,” regardless of the stakes.
In addition, a high-level panel appointed by U.N. Secretary-General Kofi Annan recently published a report on U.N. reform that unmistakably reemphasizes that only the U.N. Security Council may legally authorize military operations that go beyond self-defense.
So, was the hype about precautionary military action just an exaggeration by the United States under the strain of September 11, 2001? Can we relax, agreeing that the U.N. Charter will continue to be regarded as the linchpin of international law, providing undisputed guidance for the use of military force?
Definitely not. At least two factors will keep the issue of preemption with us for years to come. First, given the nature of present threats, the notion of striking first to avoid unacceptable damage is conceptually compelling. Second–and even more importantly–an increasing number of countries and organizations acknowledge the need for a redefinition of the meaning of defense. “Preemption” is on its way to becoming a strategic reality, with significant legal and political implications.
A concept whose time has come
Behind the new logic of preemption is the acknowledgment that the threat situation has fundamentally changed as a result of three factors: the spread of weapons of mass destruction; the increasingly available means of their delivery by missile, unmanned aerial vehicle, and so on; and the technological progress that has been made in range and accuracy. Geographic distance is becoming less of a factor in threat analysis as more states and even non-state actors are achieving the ability to project power over long ranges. At the same time, the defender's reaction time is growing shorter. NATO's Cold War principle of waiting for the proof of an opponent's intention to attack (for example, the movement of Warsaw Pact troops) before activating military defense is defunct. Today, the proof of serious hostility might be the detonation of a chemical weapon in a major city. To wait in such a case would be unjustifiable, considering the potential number of casualties. Instead, in extreme cases, threats must be countered before they become acute–and by military means if necessary.
It is also noteworthy that despite the disaster in Iraq, the Bush doctrine of preemptive strike has not been discredited with the American public. Domestic criticism is directed against the developments in Iraq, but not against the idea of anticipatory self-defense. There is essentially no political pressure on the administration to disavow the Bush doctrine. [See “Dangerous Doctrine,” p. 38.]
Toward a strategic reality
The conclusion that under extreme conditions a preemptive strike might be necessary has found a number of supporters. Russia has explicitly reserved the right to use military force. Australia, having recently lost lives in terrorist attacks, also emphasizes the need for military action before a vital threat materializes. France–a longtime critic of the concept–claims in its new “Programmation Militaire” the right to preemptively deploy its military. Even in Japan, where military restraint is anchored in the constitution, a policy of preemptive strike is being discussed in government circles.
NATO and the European Union have taken up the issue as well. At the Prague summit in November 2002, NATO adopted a new anti-terrorism concept that, at least implicitly, referred to preemption. Although the terms “preemption” and “anticipatory self-defense” are not explicitly mentioned, the wording of the document indicates that NATO is not ruling out the possibility of preemptive strike against terrorist threats. The European Union discussed the preemption question as well during the drafting of its new security strategy, agreed upon in December 2003.
Thus the idea of preemptive military action is no longer, as critics would have it, an overreaction by a single American president to the disaster of September 11, 2001. Instead, the need to redefine the understanding of defense in light of new threats is being met with more and more international resonance. In the real world, this does not mean that the countries mentioned are inclined to use the first occasion that comes along to take preemptive action. In fact, it is hardly imaginable that an institution like NATO, with 26 members, would be able to agree unanimously on a preemptive operation. Still there is a need for doctrinal clarity and precision, to be prepared for all imaginable contingencies.
Sound, but unlawful?
Despite its appeal, the idea of preemptive military action collides with the prevailing understanding of legality. The U.N. Charter finds the use of force legitimate only for the narrowly defined purpose of self-defense or if mandated by the Security Council.
But the U.N. Charter was written almost six decades ago when the main threats to international stability originated from conflicts between states. This has changed fundamentally: Today's security concerns mostly result from conflicts within states (civil war, genocide), from crumbling state authority, or from nonstate actors. None of these threats is mentioned in the U.N. Charter–in fact, the written international law no longer reflects international realities.
“I'm declaring martial law—fall in!”
A strict reading of the charter has been steadily weakened over the years. For instance, the catchphrase “rogue states” breaks with the primacy of national sovereignty. It implicitly acknowledges that a country that ignores fundamental values can lose its rights (and invulnerability) as a state. Furthermore, the humanitarian intervention of NATO in Kosovo contradicted the rigid interpretation of the U.N. Charter as well. NATO used military force without a Security Council mandate. Confronted with the Security Council's inability to stop the slaughter by Serbia, NATO placed a higher value on the protection of human rights than on obedience to the charter. Later, when the United Nations supported the post-war order and there came to be broad international support for the action, the Kosovo war (which could be interpreted as a preemptive military action) was regarded as legitimate.
Here lies the key to the further evolution of international law. The future will require interpretation and judgment as well as formal rules. And almost inevitably a break from a formal interpretation of international law to a discretionary and deliberative mechanism will create legal uncertainty. A decision to deploy troops will need to be bound to certain concrete requirements and criteria, such as the imminence of danger, the plausibility of the threat, and the proportionality of response.
None of these criteria is precisely measurable or legally enforceable, nor is the list of conditions complete. It will take a broad political debate to achieve a consensus on rules for the use of force. Nor will that consensus be able to completely prevent the abuse of military capabilities. But the problem cannot be solved by a rigid interpretation of the U.N. Charter either.
There are a number of examples in the last few decades in which states have attempted to justify military force using questionable principles of legitimacy. The December 2004 report on U.N. reform addressed these concerns in part when it referred to “long-established international law,” which permits a threatened state to take military action as long as a threat is imminent. However, the report fails to offer an indisputable definition of “imminence” and offers no solution for a situation in which different members of the Security Council interpret “immediate threat” differently.
As a matter of fact, the question of preemption appears to be as much a political as a legal problem. Since policy makers–at least in democracies–require public support, they are confronted with key political questions: What kind of threats justify preemption and what kind of measures need to be taken? When is a threat pressing enough to justify a preemptive strike? On which source of information will the decision be taken?
Vital threats other than the imminence of attack may also emerge as reasons for anticipatory action. It would be conceivable, in extreme cases, to intervene to protect natural resources necessary for life–in cases when, for example, an ecologically irresponsible dam threatens lives downstream, or a dramatically unsafe nuclear reactor project goes forward near an international border. Furthermore, preemptive action may not entail overthrowing a government; the spectrum of possible options is substantially broader. Nonmilitary as well as “semi-military” actions could include interrupting information streams, capturing ships, intercepting aircraft, establishing blockades, or acts of sabotage. Each of these options has a different level of acceptability and feasibility. Destruction of a terrorist training camp, for instance, is more likely to meet with public approval, on both the national and international level, than the overthrow of a government.
None of these actions can be justified unless the threat is exceedingly urgent and immediate. The question of urgency, however, leads to a serious dilemma: To decide as late as possible on a military strike–the better to demonstrate that the threat is obvious and imminent–could limit the success of the action significantly. But if a threat is dealt with as promptly as possible, the chance of success will be greater, but at the cost of making it far more difficult to plausibly demonstrate urgency and receive public support.
A similar dilemma emerges with respect to the information on which a decision to preempt is based. The ability of intelligence services to provide accurate threat assessments (which should not only contain exact data on capabilities but also evidence of the hostile intentions of the would-be attacker) may be plagued either by an overload of information or by a lack of reliable data. Before 9/11, U.S. intelligence services received a number of hints of an upcoming terrorist attack, but they came in such a flood of information that the decisive clues were lost. On the other hand, the services lack adequate information about countries such as Iran or North Korea, which greatly increases the difficulty of making the right political decision. Both cases imply the need for careful selection and interpretation and reveal the danger of error and misreading.
The debate on preemption is far from over; it will continue to be a part of future strategic thinking. Extreme situations may require a preventive deployment of military force, but any such deployment must be bound to concrete conditions–even though none of the criteria can be completely defined or legally enforced.
Moreover, the list of legal and political prerequisites for preemptive strike is not complete. If the widest possible consensus on how to take on future security challenges and to prevent the abuse of force is to be achieved, a debate on the relationship between “attack” and “defense” must take place within individual countries and on the international level. Even if criteria are specified for preemptive military deployment, judgments on legal standards and commensurability will always be subject to interpretation. The misuse of military power cannot be excluded in principle, although political decision makers (in democratic countries, at least) still have to justify their actions to a critical and informed public and have to take responsibility for their decisions. But if publics decline to engage in such a debate, they will give up an important instrument of citizen control over their governments.