AIDP Blog

Comment on Amos N. Guiora’s Article: “Anticipatory Self-Defense and International Law – A Re-evaluation”

The premise of the article is a trade-off: earlier intervention in anticipation of an armed conflict in exchange for furthering more legitimate reasons (via intelligence) for the anticipatory self-defense. The goal apparently is to abolish the stretched interpretations of Article 51 and to give credence to anticipatory self-defense beyond the strict requirements of the Caroline Doctrine. The credence comes in the form of intelligence that meets the objective admissibility standards of “a court.” But why more time? The whole idea of anticipatory self defense is to “act before it’s too late.” This usually comes at the expense of not securing the most definitive intelligence. Guiora’s method seems to be: “we need to see some intelligence that looks as if it’s almost (or already) too late, when in fact it is not.”
I find an inherent inverse relationship between time before the attack and quality of intelligence. As the attack draws closer, it is likely that more sources will be privy to more details of the attack, making the intelligence more definitive and more likely to meet admissibility standards. Thus, submitting intelligence to a court earlier means it is less likely to comply with admissibility standards. Such a system seems counter-intuitive, and unlikely to garner state-support. If a state thinks intelligence is credible enough to submit to a “strict scrutiny” court, then surely it finds it actionable and ready for “operationalization.” If the quality of the intelligence is sufficient for a state to perceive it as a grave threat, then preparing the intelligence for admissibility standards and submission to a court is time wasted. This offends the people’s sense of protection from their government. Meanwhile, the process is a mere formality to please the international community. Formalities for the pleasure and sensibilities of third party states should not endanger the safety of a state under threat of attack.
I further question the strict scrutiny doctrine’s treatment of state non-compliance. Holding an executive liable for impeachment and other crimes in the event that the executive disobeys the court only seems fair if the court can also be held criminally liable if it denies use of force and a terror attack ensues, which was the attack in question in the intelligence. This approach incentivizes a practical interpretation of the intelligence by the court (as opposed to political- the Security Council comes to mind…) as well as a thorough analysis of the intelligence by state executives. It also guarantees accountability where a terrorist attack occurs despite the court’s denial to use force in anticipatory self-defense.
Finally, I question the strict scrutiny doctrine’s niche in anticipatory self-defense law. Does this doctrine replace the Caroline Doctrine, or supplement it? More specifically, what is the role of imminence with respect to strict scrutiny? A state should always retain the right to act unilaterally in good faith in anticipation of an imminent threat. Requiring a state to receive court-approval perverts the first two legs of Guiora’s principles of self-defense. The lesson I’ve taken from countless articles like this is that it’s time to stop trying to make sense of the outdated UN Charter, and restate a new international law on the use of force. It may not seem like many years have passed since 1945, but how many critical articles must be written, and Charter provisions blatantly defied, before we see the UN Charter for what it is: an archaic piece of legal history, a relic of an outdated political consciousness? This is the real issue that states and legal scholars must begin to address in searching for ways to bring state behavior into compliance with a moral, but realistic, rule-based use of force regime.

Professor Guiora’s article, “Anticipatory Self-Defense and International Law – A Re-Evaluation” proposes a process-based means of reducing the subjectivity in a state’s decision to use force to pre-empt a threat by a non-state actor. Tarcisio Gazzini and Muge Kinacioglu (in the articles linked in Professor Guiora’s blog post) rightly criticize the assumed right to pre-emptive force and the usefulness of the domestic courts. (There are very obvious problems with using domestic courts to decide the legitimacy of attacks on another state’s sovereignty.) However, Professor Guiora is not alone in questioning the limits of Article 51 of the United Nations Charter and the call for standards of evidence seems necessary in light of The National Security Strategy of the United States issued in 2002 and the WMD evidentiary issues of the United States justification of an invasion of Iraq.

Professor Guiora introduces “strict scrutiny” as a response to the problem of terrorism. His approach, though, is really more directed at the problem of when a state may act than the issue of non-state actors. International law has begun to address the latter through the general framework of Article 2(4) of the UN Charter, the Draft Articles on State Responsibility, and definitions of control in the Nicaragua and Tadic judgments. UN Security Council Resolution 1566 went further in identifying terrorism as threat to international peace requiring action. Barry E. Carter et al., International Law 760-61, 1019-28 (5th ed. 2007). There remain questions about the allowable scope of a state’s response to terrorists in another state, but the existing structure seems capable of developing answers.

The more central issue is the timing of a state’s response to threats. Professor Guiora argues that a state may use force earlier in response to a threat if it has evidence which is “reliable, viable, valid and corroborated intelligence” subject to a court’s approval. This presupposes a right to pre-emptive force which does not clearly exist under Article 51 or common international law as explained in the Caroline doctrine. These standards cannot be swept away by suggesting they are incapable of providing the proper guidelines for deciding when a state may act pre-emptively. There is first the question of “whether ever?” I would move from Professor Gazzini’s criticism to ask whether “strict scrutiny” should allow pre-emptive attacks. It is difficult to imagine the situation where there exists evidence which meets Professor Guiora’s high standards and the threat is not imminent, but will not allow presentation of the case to the United Nations or the state involved.

Professor Kinacioglu suggests that “strict scrutiny” would allow for a more subjective analysis of the threat and the proportionality of the defense. This is really just an argument against pre-emptive force in general. The further out from an attack, the more difficult it is to gauge its nature. Professor Guiora has set out to provide a more objective approach to pre-emption. I would suggest that it could succeed in this by limiting its use to deciding anticipatory action, which is in response to an imminent threat, or in its application to pre-emptive force where a state refuses the consensus of the international community. If the Bush doctrine of pre-emption set out in the National Security Strategy is utilized in the future, those who criticize Professor Guiora’s “strict scrutiny” may seek its implementation.

As argued by Amos N. Guiora, the increase in terrorism over the last decade has created a need to re-articulate international law on when a state can preemptively strike other states or terrorist organizations. It can be argued that preemptive strikes have become necessary because of the impossibility of creating a security system to protect all public sites from terror bombings. However, international law must define the difference between a legitimate preemptive strike and an act of aggression.
Traditionally, preemptive self-defense can be better defined as interceptive self-defense. This power can only be exercised when “there is convincing evidence not merely of threats and potential danger but of an armed attack being actually mounted.” (see Mary Ellen O’Connell, The Myth of Preemptive Self-defense at 8 – http://www.asil.org/taskforce/oconnell.pdf) The threat of attack must be imminent and not simply foreseeable or conceivable for self-defense to be justified.
Others argue that doctrine of self-defense in the United Nations charter is completely devoid of any legal significance. Since the creation of the U.N. charter in 1945, over two-thirds of the member nations have participated in 291 interstate conflicts resulting in over 22 million deaths. Obviously, in each of these conflicts, at least one party has violated the U.N. charter since both parties cannot justify the use of force through self-defense. From these statistics, it is clear that nations have not come to a consensus on the international law concerning force. Therefore, this theory argues there is not a legal impediment to preemptive self-defense when a state perceives a need to protect itself. (see Sean D. Murphy, The Doctrine of Preemptive Self-Defense at 12 – http://papers.ssrn.com/sol3/papers.cfm?abstract_id=707523)
With these conflicting views, it is apparent that international law defining self-defense needs to addressed and amended. Terrorism has added an entire new dimension to warfare for all nations that was unforeseen when the U.N. charter was drafted in 1945. Without clear guidelines, state decision makers are uncertain when preemptive measures are appropriate or not.