The U.N. has no internationally agreed-upon definition of terrorism. The Organization of the Islamic Conference recently successfully blocked the Comprehensive Convention on International Terrorism because of the lack of definition. The OIC demand demanded a distinction between terrorism and self-determination, or as they stated, “the importance not to affect the exercise of the right of peoples to self-determination.” See Mahmoud Hmoud, Negotiating the Draft Comprehensive Convention on International Terrorism: Major Bones of Contention, Journal of International Criminal Justice, 2006 at 3. The U.N. Charter refers to “self-determination of peoples” in articles 1, ¶2, 55, 73, and 76, ¶b. However, this principle also lacks concrete definition.

A good example of the fine line between self-determination and terrorism might be the Palestine Liberation Organization. The PLO holds a permanent observer seat at the U.N. and is recognized by the Arab League and the U.N. to be the legitimate representative of the Palestine people. See the Permanent Observer Mission of Palestine to the United Nations, http://www.un.int/palestine/index.shtml. The PLO claims that they are freedom fighters and have never used direct violence against Israel. Id. Indeed, the PLO is the only organization to recognize the sovereignty of Israel and ask for an end to violence. See PLO Demands End to Armed Attacks, BBC News, 16 January, 2005. However, the British National Criminal Intelligence Service named the PLO “the richest of all terrorist organizations” in 1993. See Rachel Ehrenfeld, And a Thief, Too: Yasser Arafat takes what he likes, National Review, July 29, 2002. Using the wide, vague definition of terrorism, even if the PLO has never directly used violence against Israel, Israel may still consider the PLO a terrorist organization for lending its support to organizations that do believe in violence against Israel. Israel may reserve the right to a pre-emptive strike because they used “strict scrutiny” when analyzing any intelligence. Rather than promote discussion between Israel and the PLO, the same standard may become a shield to promote eradication of the “enemy.”

Although in the 2005-06 session, the UN Human Rights Committee said that detention of suspected terrorists should never be contrary to the 1966 International Covenant of Civil and Political Rights, their definition relates only to detention of such persons. See Jorri Duursma, Definition of Terrorism and Self-Determination, Harvard International Review, December 20, 2008 at 2. My concern is that the same “strict scrutiny” may be interpreted widely and allow some countries to justify the violence of a “pre-emptive strike” against those engaged in wars of self-determination, or freedom fighters, and further yet, give them a solid defense against such a violence. Until an internationally community can agree upon a definition of terrorism, the good intentions of Professor Guiora’s model may have devastating consequences.

First, if the international community loosens the imminence requirement for the right of anticipatory self-defense the proportionality standards should be increased. Proportionality has long played an important role in customary international law’s view on anticipatory self-defense, dating back to the Canadian attack on the Caroline in 1837. See Destruction of the “Caroline”, 2 Moore, A Digest of International Law 409-414. While The United Nations has not codified anticipatory self-defense, recent history supports the premise that customary international law would necessitate an increased standard for proportionality if the imminence standard was loosened. During the Cuban missile crisis the United States relied on strong evidence in violating international law by blockading Soviet ships transporting nuclear weapons to Cuba. The international community tolerated the United States’ actions even though the threat was not imminent because it was least likely to disrupt international peace, a prime objective of the United Nations. U.N. Charter Article 2(3). Had the United States engaged the Soviet ships in attack, one would suspect the international community would have reacted negatively, as it did in 1981 when Israel bombed an Iraqi nuclear plant near Baghdad. This threat was analogous to the threat of the Cuban Missile crisis; it was not imminent, estimates were that the plant was six months from completion, and was corroborated by reliable intelligence. However, Israel’s bombing of Iraq was not proportional given the imminence of the threat. Thus, allowing more time to act in anticipatory self-defense should reflect customary international law; as imminence decreases the responsibility to find and use options that are the least likely to disrupt international peace in neutralizing threats should increase. An act of anticipatory self-defense should not only be proportionate to magnitude of the threatened harm but also to its imminence.

Second, even if the international community were to approve a flexible use of anticipatory self-defense several complications might arise in applying it to non-state actors. Primarily, Article 2(4) of the U.N. Charter specifies that no members shall “use force against the territorial integrity or political independence of any state.” Attacking a terrorist group without the host country’s permission would violate that state’s territorial integrity. Therefore, if the threat of imminence standard is lowered a country should be able and required to take further steps to gain the cooperation of the host country before acting in anticipatory self-defense. Additionally, while international customary law has recognized anticipatory self-defense against non-state actors, exemplified in the Canadian attack on the Caroline mentioned above, recent history suggests a hardening of opinion. On September 28, 2001 the Council invoked Chapter VII to impose sanctions, not force, on terrorist groups through Resolution 1373. International Law, Carter, Trimble, and Weiner. Page 1020. In another example in 2003, Israel responded to a suicide bomb attack by striking an alleged terrorist training camp at Ein Saheb, Syria. During the Security Council discussion thereafter, ten of the fifteen Council members condemned or described Israel’s action as a violation of international law. International Law, Carter, Trimble, and Weiner. Page 1024. Finally, in DRC v. Uganda Judge Simma of The International Court of Justice, “[rejected] an expansion of the doctrine of self-defense to include a right to anticipatory self-defense against the threat of an armed attack by non-State actors.” “The Tangled Web”: The Right of Self-Defense Against Non-State Actors in the Armed Activities Case, page 81 (http://www.iilj.org/courses/documents/JILP40SI.Barbour_Salzman.pdf).

Third, the international community will likely move to enumerate the types of threats which will condone an act of anticipatory self-defense against non-state actors. A definition for terrorist has not been offered by the United Nations in large part due to differences in opinion of what certain resistance groups should be considered. In 2002, for example, The United States publicly warned Russia against striking Chechen groups in Georgia. However, in that year the U.S. launched six cruise missiles in Yemen at Al Qaeda targets. To avoid this problem, the international community should enumerate the types of threats that would justify an act of anticipatory self-defense against non-state actors similar to the U.N. Security Council Resolution 1566. [S.C. Res. 1566]. This should also include an attempt to identify the magnitude a threat must meet in order to justify anticipatory self-defense. The International Court of Justice in the 1986 Nicaragua case held self-defense is warranted against terrorist armed attacks that rise above a “mere frontier incident had it been carried out by regular armed forces.” International Law, Carter, Trimble, and Weiner. Page 1021. While the September 11 attacks are considered to meet this level of threat, it is unclear whether the majority of terrorist attacks, such as assassination attempts, hijacking of airplanes, or bombings, would satisfy the ICJ. Id. Exemplifying types of attacks that would fall under anticipatory self-defense would help convey international norms and decrease the chance a country will exceed its authority.

The author’s call for the executive branch’s ability to engage in anticipatory self-defense be subject to authorization from an external source, such as a congressional sub-committee or a Foreign Intelligence Surveillance Act court, is a good idea. http://www.azcentral.com/arizonarepublic/opinions/articles/2008/11/08/20081108barr08.html. The need for this country to respond quickly to threats is a vital one, but at the same time, there is a need to make sure an attack is justified, whether the intelligence is accurate, and whether it is falls within acceptable international standards.

Placing the decision making power of launching an attack in the hands of a single entity can be problematic. A single executive may be more easily swayed by faulty or insufficient intelligence than a congressional committee or a court. An example of this can be seen in the United States’ invasion of Iraq in 2003. President Bush ordered the invasion of Iraq and justified it by claiming it as anticipatory self-defense in response to intelligence that claimed that Iraq was in possession of chemical and biological weapons. The world condemned the attack, and saw it as a violation of acceptable uses of anticipatory self-defense. The intelligence turned out to be false, and the United States did not find any chemical or biological weapons. In fact, the source of the intelligence claiming there was chemical and biological weapons in Iraq was a single scientist. http://www.cnn.com/2008/WORLD/meast/10/10/iraq.curveball/index.html. If the intelligence presented to the executive branch had been subject to review by a committee or a court, perhaps a more informed decision could have been made.

An external source of authorization can offer the benefit of having a more objective analysis of available intelligence. With a more objective viewpoint, a better determination can be made about whether an attack is really the best solution to a possible threat. This will help to make the United States’ future uses of anticipatory self-defense more in line with the United Nations’ standards, and help the United States avoid another condemned use of force.

Certainly anticipatory self-defense has been recognized at different times throughout history as legitimate. Many of these instances, however, involve actions against States, and not unrelated organizations within States. In 1967, Israel’s “first strike” against Egypt’s air force was viewed as warranted, given that Egypt had made evident its hostile intention and Israel was demonstrably vulnerable. The UN chose not to condemn Israel, but rather insist that Israel relinquish seized territory, effectively balancing Egypt’s illegitimate provocation with a balanced peace [Barry E. Carter et al., International Law, 996 (5th ed. 2007)]. It becomes more difficult to balance the interests of a threatened State, however, with the interests of another State whose sovereignty will be invaded because of several individuals that happen to be within the State’s borders.

The authors rightfully move away from former Vice President Cheney’s support of the so-called “Once Percent Doctrine.” As described by Professor of mathematics John Allen Paulos in 2006, such a doctrine essentially requires action based not on evidence, but on suspicion of threats against a State [http://abcnews.go.com/Technology/story?id=2120605]. Under these circumstances, the United Nations would no longer be able to balance the interests of both States (one’s safety versus the other’s sovereignty), but would allow for any State to preemptively strike another State, with potentially little reason for doing so. While the reduction ad absurdum argues that the law certainly did not intend to prohibit State action until they were attacked [Barry E. Carter et al., International Law, 996 (5th ed. 2007)], it is equally unlikely that the law would allow States such latitude when using force against another. The authors’ suggestion of an independent body, whose job is to ask detailed questions when given information of a threat, seems to strike the best balance between all interests that must be met within the shadow of the UN Charter.

Comment on Anticipatory Self-Defense Key to Terror Fight by Amos Guiora and Dan Barr.

The principle of anticipatory self-defense is not new; it has been recognized since 1842. During what is now called the Caroline affair, British forces attacked a U.S. steamship carrying insurgents to Canada. The then U.S. Secretary of State, Daniel Webster, diffused the ensuing hostilities between the two countries, admitting the right of a country to protect itself from imminent invasion (see Carter, Trimble, and Weiner, International Law, at 977). While not expressly proscribed by the text of the U.N. Charter, the general consensus of the international community is that anticipatory self-defense can be used against another country when there is: (1) a significant threat, (2) an imminent likelihood that the threat will be realized, (3) the target nation has exhausted all alternative courses of action, and (4) the use of force is consistent with the principles of the U.N. Charter (Sofaer, Abraham, On the necessity of preemption, European Journal of International Law, http://ejil.oxfordjournals.org/cgi/reprint/14/2/209).

Today, most countries are not as concerned with a single steamship of musketeers. The biggest threats to national security come from the capabilities of modern warfare, such as weapons of mass destruction, that can inflict massive damage, possibly even eliminating the ability to launch a retaliatory response. As the magnitude of first strike capabilities increases, the logic behind requiring nations to wait to respond diminishes (see Carter, Trimble, and Weiner, International Law, at 996).

To address these changes, countries such as the United States must be able to adapt the doctrine to protect their national security. However, as Amos Guiora and Dan Barr imply in their article, using such rationale as the “1 percent doctrine,” created by Vice President Dick Cheney, takes the doctrine too far. Legitimacy of a claim for anticipatory self-defense is founded in the likelihood of an imminent and overwhelming attack (see Carter, Trimble, and Weiner, International Law, at 1006). It would be difficult for anyone to argue that a threat that is 1 percent likely to occur is immediate and imminent. Global insecurity and chaos would ensue if all countries were to adopt such an extension to the doctrine.

The determination of whether threats pose a legitimate reason for anticipatory self-defense requires a balancing act. Countries must be able to adequately defend themselves from the threats of modern technology, but cannot be given blanket authority as provided by the 1 percent doctrine. Such a balancing act could be achieved in the United States by using a congressional committee to approve the anticipatory self-defense claims, as proposed by Guiora and Barr. Oversight that uses an objective evaluation may provide at least some restraints on the self-ordained authority of the 1 percent doctrine. It may also give the acts of anticipatory self-defense legitimacy, and garner the support of the international community during the aftermath of such a strike.

While this approach may be effective at legitimizing strikes against nations, it does not address the legal issues associated with employing anticipatory self-defense tactics against individual terrorists in nations we are not at war with, like the article suggests. A strike against a terrorist group in a foreign nation is considered a strike against the foreign nation itself, illegal under Article 2(4) of the U.N. Charter (See Carter, Trimble, and Weiner, International Law, at 1022). Thus, there is tension between the values of national sovereignty and self-defense. The justifications used for strikes against terrorists in foreign countries are: (1) the foreign nation has state responsibility, from instructing the targeted group to commit crimes of terror, or (2) the foreign nation is harboring terrorists that have committed such acts (See Carter, Trimble, and Weiner, International Law, at 1022). Both justifications rely on terrorists having already committed acts of terror, making these strikes retaliation, not anticipatory self-defense. While important to other elements of national security, the anticipatory self-defense doctrine should not be used to circumvent the national sovereignty of foreign countries in the fight against non-governmental terrorist organizations.

The authors believe that “[t]he threats we face are too enormous not to resort to anticipatory self-defense,” but they do not define what kind of action is legal under international law and do not cite evidence regarding customary international law or the U.N. Charter. Traditionally, the conditions under which military forced could be used by one sovereign state against another, jus ad bellum, included action when an attack “may be anticipated,” according 17th century scholar Hugo Grotius. Louis Rene Beres, Anticipatory Self-Defense, Washington Times (July 24, 2005), Available: http://www.washingtontimes.com/news/2005/jul/24/20050724-101302-5685r/. In the 18th century, Emmerich de Vattel wrote that the use of force is justified against any aggression, present or anticipated, that seeks to inflict injury. Perhaps most importantly, in response to the Caroline incident, U.S. Secretary of State Daniel Webster described the two prongs that were necessary before an anticipatory attack: the immediate necessity of the action (leaving no time for deliberation) and the idea that the action must be proportionate to the threat. Id. Article 51 of the U.N. Charter recognizes the “inherent right of individual or collective self-defense,” which is often interpreted through this understanding of customary international law. So, while it is widely accepted that proportionate anticipatory attacks can be launched when absolutely necessary, pre-emptive attacks, those which violate either prong, or attacks which exceed the deliberation of the Security Council, occurring beyond the interim, are considered illegal. The authors indicate that as long as there is “thoughtful and careful analysis” beforehand, a pre-emptive attack would be acceptable. Bush’s National Security Strategy considered the difficulty of detecting a terrorist attack and the devastating impact of WMD on innocent citizens. Steven C. Welsh, Preemptive War and International Law, Center for Defense Information: International Security Law Project (December 5, 2003), Available: http://www.cdi.org/news/law/preemptive-war.cfm. The doctrine sought to expand the concept of anticipatory self-defense to include actions that had previously been considered pre-emptive. William C. Bradford, The Duty to Defend Them: A Natural Law Justification for the Bush Doctrine of Preventive War, 79 NTDLR. 1365, 1424 (2004). Therefore, after reading the article, one could conclude that the authors believe the problem with the Bush Doctrine is one of method rather than scope and as long as the intelligence is sound, pre-emptive measures should be considered legal. This concept of a “reasonable state” standard is contrary to most interpretations of the U.N., and its adoption would arguably constitute a violation of international law. The reasonable state standard is defensible, id. at 1395, but the authors do not address the issue.

Additionally, while supporting the need for superior intelligence evaluation, the authors do not prove that increased checks on intelligence would solve the problem of Cheney’s “1 percent doctrine.” As described in the article, the 1 percent doctrine is the idea that a one-percent chance of WMD build-up or attacks should be treated as a certainty. The authors believe that the 1 percent doctrine leads to ineffective movement, not real action, and anticipatory self-defense should be based on increased intelligence analysis, not the discretion of the executive or the slim chance that an attack might occur. However, even with increased congressional or judicial power, the 1 percent doctrine could still be defended. For instance, what if after thorough intelligence evaluation and congressional debate, there is a small chance of an extremely devastating attack? During the Cold War, mutually assured destruction maintained a balance between the relatively few countries that had nuclear weapons. W. Michael Reisman, Assessing Claims to Revise the Laws of War, 97 A.J.I.L. 82, 85 (January 2003). This balance allowed for a rational prediction of how a given nation might act and why. However, as more countries gained nuclear weapons and the Soviet Union collapsed, the threat of a “rogue nations” and non-state actors obtaining WMD increased. Countries like Iran and North Korea are not as predictable as the global super powers were during the Cold War, and it could be argued that traditional intelligence analysis, even if thorough and subject to evaluation by all branches of government, is less effective when considering the seemingly irrational goals of rogue states and their unpredictable relationships with the United States. Furthermore, the concept of reciprocity does not apply to terrorist organizations that act independently of the nation state structure. Id. at 86. While there may be a small chance of a non-state actor obtaining WMD, there might be an increased or incalculable chance of the actor actually using the weapons. In effect, the 1 percent doctrine accounts for the unpredictability of ideologically-driven states or irrational actors that intelligence analysis would fail to consider.

Even without considering the unpredictability of the modern era, the authors do not convincingly prove that their proposed changes in intelligence analysis would lead to less politicization or more effective anticipatory action. Intelligence is already reviewed by congressional committees. These committees are often politicized, and there is no indication that granting additional power to committees would lead to a more careful analysis, considering Congress authorized the use of force against Iraq. Text of House Resolution Authorizing the Use of U.S. Force Against Iraq, N.Y. Times, A15 (October 3, 2002). Furthermore, if the threat is truly immediate, thorough deliberation by a congressional committee, especially if one considers the current climate of political polarization, could defeat the very purpose of an anticipatory attack. On the contrary, FISA courts have been criticized as “rubbing stamping” action taken by the executive branch. The authors do not describe how they would amend the process in a way that would account for the immediacy of action while satisfying those who believe the courts to be overly deferential.

The checklist of questions presented in the article is subject to similar criticism, as there is no evidence that these questions were not asked prior to the invasion of Iraq. In itself, the worth of the checklist is relative to the worth of the intelligence. Prior to the invasion of Iraq, Congress debated the use of force and asked many of the questions cited by the authors as integral to intelligence evaluation. Excerpts From Senate Debate on Authorization to Use Force Against Iraq, N.Y. Times, A9 (October 5, 2002). For instance, evidence shows that President Bush believed the intelligence gathered on Iraq. Arguably, it was corroborated, and the sources were confirmed. Iraq had ties to terrorists such as Abu Nidal, even if it did not directly control terrorist activity outside the country. Yossi Melman, Iraq’s Ties to Terror: The Threat Isn’t Easy to Read, N.Y. Times, Week in Review (February 9, 2003). In the opinion of the executive branch and much of the Congress, alternatives such as weapons inspectors, U.N. resolutions, and sanctions had failed. In fact, the questions cited by the authors were asked prior to the invasion; the answers were doubted by some and accepted by others based on the politicization that the authors seek to avoid. The significance of the risk is prone to the 1 percent problem, and the potential harm to innocents is often impossible to consider, as terrorist groups employ human shields and similar tactics.

It would be difficult to find a state that would disagree with the belief that anticipatory self-defense procedures should be preceded by accurate, detailed and defined analysis. This is apparent in certain binding articles included in the UN Charter (a treaty in which 192 states belong). Article 39 of the Charter provides that the Security Council is to decide the scope of international threats and/or violations against peace and, Article 51 identifies when responses to such threats are warranted (Charter of the United Nations, Art. 39-51, 1945). Consulting the authoritative, governing body (Security Council) of our international community would be one way to make sure that proper analysis takes place before anticipatory self-defense measures are taken.

Specifically, Barr and Guiora identify some of the anticipatory self-defense “mistakes” (as a result of improper or nonexistent analysis) that the United States have made in the past seven years. They correctly refer to the invasion of Iraq and the Guantanamo incidents as examples of why the United States needs to implement different strategies to eliminate future failures (Paragraph 1). These past failures find root work in ideas like that of Cheney’s one-percent doctrine (see Suskind, The One Percent Doctrine). Barr and Guiora reference Suskind’s text to identify evidence of American impulse and non-analysis in reaction to terrorism or possibilities of terrorist attack. Suskind quotes Cheney as saying “it’s not our analysis…it’s our response” (Suskind, p. 62). So, clearly, the United States (specifically the executive branch) hasn’t been concerned with proper evaluation or investigation.

Barr and Guiora suggest that the United States should formulate a checklist for a congressional committee or something of that nature, to use to evaluate which self-defense procedures would be necessary and to ensure that the proper investigation takes place. Barr and Guiora appropriately comment that in order for the United States to protect itself but at the same time eliminate costly failures, these decisions of anticipatory self-defense shouldn’t be left entirely to the executive (Paragraph 10).

Because “we live in a world where anticipatory self-defense against elusive enemies must remain part of our arsenal against terrorism, (Paragraph 4)” the United States needs to do a better job of eliminating false positives and figuring out when and when NOT to implement anticipatory self-defense measures. Barr and Guiora are right on the mark when they propose the implementation of an additional, thorough checklist as proper analysis before responding anticipatorily and impulsively in self-defense.

Self-defense is recognized as a natural right available to individuals as well as sovereign states; hence, it is described as an “inherent” right in the UN Charter. After the horrors of the Second World War, the international community codified the rules of peaceful settlement of disputes between nations and the use of force in the UN Charter of 1945. Specifically, Article 2(4) states that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state…” Article 51 provides an exception to this restriction by allowing the “inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.” See Charter of the United Nations. Although the text of the UN Charter does not address anticipatory self-defense, customary international law has for centuries authorized it. After the Caroline case in 1837, the US Secretary of State Daniel Webster recognized a right of anticipatory self-defense but restricted it to situations where it is a “necessity of self-defense…instant, overwhelming, leaving no choice of means and no moment for deliberation.” Barry E. Carter, Phillip R. Trimble, & Allen S. Weiner, International Law, 995 (5th ed., Aspen 2007). In addition to necessity, this customary international law has a requirement of proportionality. Id.

Besides the fact that customary international law allows it, a modern interpretation of the UN Charter lends anticipatory self-defense authority. Although a strict textual reading of the Charter permits the use of force in self-defense only after an armed attack has occurred, modern developments in weaponry, as well as terrorists’ unorthodox methods of attack (i.e. the airplane hijackings of September 11, 2001) make it impractical for a nation to wait for an attack to commence against it before retaliating; by then the attack may have already been completed or may have destroyed that nation’s ability to resist. Daniel C. Barr and Amos N. Guiora correctly assert that anticipatory self-defense must be allowed in this day and age. The U.S. has justified this notion:

Given the goals of rogue states and terrorists, the United States can no longer solely rely on a reactive posture as we have in the past. The inability to deter a potential attacker, the immediacy of today’s threats, and the magnitude of potential harm that could be caused by our adversaries’ choice of weapons, do not permit that option. We cannot let our enemies strike first …

U.S. National Security Strategy 2002 (revised in 2006). However, the U.S. not only supports the doctrine of anticipatory self-defense but promulgates the right to take preemptive action. The Bush Administration has stated that “[the U.S.] must be prepared to stop rogue states and their terrorist clients before they are able to threaten or use weapons of mass destruction against the United States and our allies and friends…” U.S. National Security Strategy, September 2002. Barr and Guiora support this notion by stating that “[t]he United States must be able to act earlier than what is currently contemplated by international law.”

What Barr and Guiora fail to address in their essay is that there is a difference between anticipatory and preemptive actions. In fact, they use the two words interchangeably, when in fact they are two different doctrines of self-defense. An anticipatory self-defense doctrine “authorizes armed responses to attacks that are on the brink of being launched, or where an enemy attack has already occurred and the victim learns that more attacks are planned,” in other words, when there is an imminent threat of attack. Niaz A. Shah, Self-Defense, Anticipatory Self-Defense and pre-Emption: International Law’s Response to Terrorism, 12 J. Conflict & Security L. 95, 112 (2007). Preemptive self-defense allows the use of force “to quell any possibility of future attack by another state, even where there is no reason to believe that an attack is planned and where no prior attack has occurred,” in other words, when the threat of an attack is merely conjectural. Id. The problem with preemptive attacks is that not only are they not authorized through the text of the UN Charter, but they are also beyond what customary international law dictates. Based on Webster’s letters, self-defense is authorized if its necessity was instant and with no moment for deliberation, in other words, if the threat was imminent, which is in par with anticipatory self-defense but not with preemptive attacks. Furthermore, can it truly be necessary and proportional to attack a nation before it has the ability to threaten or use force? How can necessity and proportionality be calculated when the threat is not yet in existence? Proponents of the preemptive doctrine will argue that although there is no imminent threat, a grave threat still exists if an enemy is attempting to acquire the ability to use force. Logically, preventing the enemy’s ability to do so should be justified because there is a greater chance of stopping the attack. However, there is also a greater chance of making a mistake, thereby taking the risk of “punishing” a nation for an act (attack) that it never committed and never intended to. Therefore, to be justified, preemptive attacks must be based on certainty that the enemy was going to strike if it had successfully acquired the means to do so.

As Barr and Guiora correctly state, “preemptive attacks must be based upon the objective analysis of viable, valid and corroborated intelligence,” and a procedure or at a minimum a checklist of questions to be asked to evaluate the validity of the intelligence is necessary. Otherwise, nations will be able to strike under a pretext of anticipatory or preemptive self-defense, as the Bush Administration did during the Iraq invasion, among others. Without proper limitations on the preemptive doctrine, international law on the use of self-defense will be permitted to regress to what it was in the 17th and 18th centuries, when European nation-states, though bound by the Peace of Westphalia of 1648, “frequently took pains to advance reasons for declaring war which would give the action some colour of righteousness…” Barry E. Carter, at 972. In essence, if the preemptive doctrine is widely adopted without proper limits and procedures on analyzing intelligence, we risk adopting a doctrine where governments may easily use pretext to engage in warfare.