Jumping the Gun

Michael Byers

‘We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge.’ Last month, in a commencement speech at West Point, George W. Bush announced an expansive new policy of pre-emptive military action. The graduating students greeted the announcement with enthusiastic applause, thus demonstrating not only their patriotism, but also a certain lack of historic awareness.

In 1837, the British were crushing a rebellion in Upper Canada. The United States, while unwilling to antagonise a superpower by supporting the rebels directly, failed to prevent a private militia being formed. The volunteers used a steamboat, the Caroline, to transport arms and men to an island on the Canadian side of the Niagara River. The British responded with a night raid: capturing the vessel as it was docked at Fort Schlosser, New York, they set it on fire and sent it over Niagara Falls.

The incident caused disquiet in Washington. British forces, having torched the White House and Capitol in 1814, were again intervening on US territory. Diplomatic representations culminated in an exchange of letters between Lord Ashburton, special minister for the negotiations, and Daniel Webster, the US Secretary of State. They agreed that such raids could be justified only if there was a ‘necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment of deliberation’ – and if nothing ‘unreasonable or excessive’ was done.

Until the Caroline case, self-defence was a political justification for what, from a legal perspective, were ordinary acts of war. The positivist international law of the 19th century rejected natural law distinctions between just and unjust wars. Military aggression was unregulated and conquest gave good title to territory, as demonstrated by the British acquisition of the Falklands in 1833. The Caroline case did nothing to prevent aggression, but it did draw a legal distinction between war and self-defence. As long as the act being defended against was not itself an act of war, peace would be maintained – a matter of considerable importance to relatively weak countries, as the United States then was.

The Caroline criteria of necessity and proportionality became widely accepted as customary international law – an unwritten body of rules formed from the behaviour and opinions of states. But it took another century, and the First World War, to convince statesmen of the need for constraints on military aggression. A first effort was made in 1919, when the League of Nations Covenant was adopted at Versailles. Under the Covenant the Council of the League could issue recommendations to states in danger of going to war. If the Council failed to agree, however, the disputing parties were free to take whatever action they considered ‘necessary for the maintenance of right and justice’. The League also lacked the capacity to enforce decisions, while any hope that it would co-ordinate enforcement action by its members disappeared when the US Senate rejected the Covenant in 1920.

The Kellogg-Briand Pact of 1928 prohibited ‘recourse to war for the solution of international controversies’. The Pact, which was eventually ratified by 62 states, made an exception for self-defence, but failed to define it – with the result that the customary criteria set out in the Caroline case remained the only legal bases for the use of force in international affairs. Strong on principle but again lacking an enforcement mechanism, the Pact had little practical effect. Some countries evaded it by avoiding formal declarations of war.

In 1945, the UN Charter required all states to ‘refrain . . . from the threat or use of force’. It thus extended the prohibition on war to include undeclared conflicts. Most important, the Charter provided an enforcement mechanism. The Security Council – an 11 (now 15) member body – was given authority to determine ‘the existence of any threat to the peace, breach of the peace or act of aggression’, to impose sanctions, and to ‘take such action by air, sea or land forces as may be necessary’. This was a constitutional moment in international affairs: an anarchic world of self-help and temporary alliances was transformed into a nascent system of governance.

The drafters of the Charter were hardly naive. Recognising that the UN could be imperilled if powerful states were threatened with collective action, they granted permanent membership of the Security Council and a veto on its actions to Britain, China, France, the Soviet Union and the US. Knowing that the Council could never respond promptly to every act of aggression, they also included an exception for self-defence. But in addition to necessity and proportionality, three new restrictions were introduced: a state could act in self-defence only if subject to an ‘armed attack’, acts of self-defence had to be reported immediately to the Council, and the right to respond ended as soon as the Council took action.

The ‘armed attack’ requirement superseded any pre-existing right of anticipatory action. In recognition of this, since 1945 most states have refrained from claiming pre-emptive self-defence. Israel justified the strikes that initiated the 1967 Six-Day War on the basis that Egypt’s blocking of the Straits of Tiran was a prior act of aggression. The United States justified its 1962 blockade of Cuba as regional peacekeeping, and its shooting down in 1988 of an Iranian civilian Airbus as a response to an ongoing attack. International opinion on this issue was never clearer than when Israel destroyed an Iraqi nuclear reactor in 1981, and claimed anticipatory self-defence. The then Prime Minister Margaret Thatcher said: ‘Armed attack in such circumstances cannot be justified. It represents a grave breach of international law.’ The Security Council unanimously passed a Resolution damning the Israeli action as illegal – strong condemnation indeed, especially given that the US was party to it.

In the context of the Cold War, the dangers of anticipatory self-defence were easily understood. Even the most hawkish leaders baulked at countenancing a right of pre-emptive action when the world’s principal disputants both had nuclear missile submarines designed to evade a surprise attack. Today, as seen from the Oval Office, the situation looks quite different. Russia has become an ally, no other potential enemy has submarine-based nuclear missiles, and construction of a missile defence system designed to ward off limited attacks has already begun. This President does not feel deterred by the prospect of Armageddon.

Domestic considerations often determine US foreign policy. It therefore comes as no surprise that the President has seized on pre-emptive action abroad as a means of advancing his political agenda at home. A top domestic priority is gaining control of the confirmation process for Federal judges, who play an inordinately powerful role in US politics – as Bush’s occupation of the White House demonstrates. A strong Republican showing in November’s mid-term elections would provide the President with the opportunity to shift the entire US legal system dramatically and more or less permanently to the right. Nearly eight years of deadlock between the White House and Senate have left numerous openings in the district and appeals courts, while in the Supreme Court several aged conservatives are unlikely to survive – literally – for much longer. Tariffs on steel and lumber, massive agricultural subsidies, and staunch support for Ariel Sharon are all directed at maintaining support for Bush’s allies in the swing states of Florida, Ohio and the Mid-West, with little regard for the global consequences. But even then, the prospects are not good. The economy has been weakening ever since Bush was elected and nobody knows quite how far the rot in Enron, WorldCom and Xerox, aided and abetted by Arthur Andersen, has spread. Furthermore, suspicions are growing that the 11 September attacks could have been prevented. Add to this the fact that, even in normal circumstances, the mid-term elections tend to go against the party that controls the White House, and Republican prospects might appear more than a little iffy.

But patriotism could provide a refuge: a major military action would, at least initially, elicit considerable support at the polls. Unfortunately, al-Qaida has dispersed into the villages of Afghanistan and Pakistan, leading the United States to conduct a series of small, messy operations that do not play well on TV. It is the need for more dramatic targets that has led to the new and somewhat exaggerated emphasis on biological, chemical and nuclear weapons. Saddam Hussein’s use of poison gas against Kurdish villagers in 1988 is advanced as proof that he would use such weapons against the US today, even though doing so would ensure his own destruction. Iran’s desire to acquire a credible deterrent within a nuclear neighbourhood is considered threatening to a country six thousand miles away. Cuba’s healthcare system (perhaps thought suspicious because it is publicly operated) is singled out as a possible source of biological weapons. None of these threats is imminent, but, as the President explains, ‘if we wait for threats to fully materialise, we will have waited too long.’

What is most striking about the new policy is that it portrays weapons of mass destruction as a new problem, and unilateral action as the only way of dealing with them. In fact, the first treaty on poison gas dates from 1899. For decades, the UN has led efforts to control the development and spread of such weapons. Now, with stunning hypocrisy, the Bush Administration has refused to ratify enforcement protocols to the Chemical and Biological Weapons Conventions. It has pressured 139 countries into dismissing José Bustani, the highly regarded director-general of the Organisation for the Prohibition of Chemical Weapons, in the middle of his term. And, in violation of its obligations under the Nuclear Non-Proliferation Treaty, it has accelerated efforts to develop battlefield nuclear weapons that can penetrate deep bunkers and destroy dangerous chemicals and pathogens.

The British Government was initially supportive of the new strategic position. In March Geoff Hoon, the Defence Secretary, said the Government ‘reserved the right’ to use nuclear weapons if Britain or British troops were threatened by biological or chemical weapons. Hoon was asserting an existing right of pre-emptive action – on the basis of an argument, supplied by Foreign Office lawyers, that the customary international law of the Caroline case was incorporated, in full, into the UN Charter as an ‘inherent right’.

There are numerous problems with the argument. Most notably, international law requires that treaty terms be interpreted according to their ordinary meaning. The crucial passage on self-defence is in Article 51: ‘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.’ The term ‘inherent’ is thus clearly constrained by the phrase ‘if an armed attack occurs’ and the right of self-defence is seen merely as a limited exception within a system that prioritises Security Council action.

In any event, a profound unease has crept over Whitehall as the full extent of the US claim has become apparent. The Bush doctrine makes no attempt to satisfy the criteria of the Caroline case: there is no suggestion of waiting for a ‘necessity of self-defence’ that is ‘instant, overwhelming, leaving no choice of means, and no moment of deliberation’. Unlike Geoff Hoon, the President is not ‘reserving a right’ to respond to imminent threats; he is seeking an extension of the right of self-defence to include action against potential future dangers.

Bush’s advisers, though focused on the mid-term elections and more than willing to violate international law if necessary, are savvy enough to realise that a change in the law could provide long-term benefits for them, such as making it easier to secure support for future military actions. They are also fully aware that rules of customary international law and interpretations of the Charter can be modified by the changing behaviour of states – and that it is sometimes possible deliberately to provoke the necessary behaviour. In the aftermath of 11 September, the US successfully sought to extend the right of self-defence to include action against state-sponsors of terrorists when those terrorists have already attacked the responding state. It did so, first by claiming the right, and then by seeking the express or tacit support of other countries. Intense diplomatic pressure – including the ‘with us or against us’ threat – was brought to bear. Few were brave or principled enough to disagree. Military action in Afghanistan was then sufficient to secure the claim.

Today, the ‘with us or against us’ threat has been repeated. An attack on Iraq is planned, ideally for just before the mid-term elections. The only question is, will other countries support this latest initiative by the United States? Before Tony Blair decides, he should consider the negative consequences. A broad right of anticipatory self-defence would introduce dangerous uncertainties. Who would decide that a potential threat justifies pre-emptive action? How does one protect against opportunistic interventions justified as anticipatory self-defence? Do we wish to accord the same extended right to India and Pakistan, as the reciprocal character of customary international law would require? Might the development of such a right prompt potential targets into striking first, to use rather than lose their biological, chemical and nuclear weapons?

The UN Charter provides a clear answer to these questions: in the absence of an attack, the Security Council alone can act. And if provided with clear evidence of an imminent biological, chemical or nuclear attack, there is no doubt that it would act, since the effects of weapons of mass destruction can hardly be confined. In recent years, the Council has repeatedly authorised military action even in situations where there was no threat to its members – in Iraq, Somalia, Bosnia-Herzegovina, Haiti and elsewhere. Last September, it took only one day before all 15 states affirmed the right of the US to engage in self-defence.

Only those who have no reason to fear military force can contemplate a world without the combined protections of the UN Charter and the customary law of the Caroline case. The President feels able to claim a broad right of pre-emptive action because other states do not currently have the capacity to retaliate. What Bush fails to realise is that his actions will encourage other states to acquire the very weapons that he purports to abhor.

US opposition to the International Criminal Court has attracted much attention, but the likely consequences of that opposition pale in comparison to the damage that could be caused to international affairs by a broad right of pre-emptive action. It would shift us away from the UN system and towards an anarchical world dominated by raw power, shifting alliances, and desperate attempts by vulnerable states to acquire the capacity to deter. In pursuit of his own parochial interests, George W. Bush would return us to the dark days before the Caroline tumbled over Niagara Falls. Had he been speaking to the West Point class of 1838, the students would have withheld their applause.