[Note: A transcript of this meeting is unavailable. The discussion is summarized below.]
What We Know:
The first session of the "Old Rules, New Threats" roundtable, jointly sponsored by the Council on Foreign Relations and the American Society of International Law, focused on the principle of preemption and its practical applications, particularly with regards to terrorism and combating weapons of mass destruction (WMD) in Iraq and elsewhere.
The meeting used as a common starting point the National Security Strategy (NSS) document issued by the Bush Administration in September 2002. The doctrine of preemption articulated in the NSS prompted discussion of its legal, normative, and operational costs and benefits, advantages and challenges. And while consensus emerged on the general legitimacy of preemptive force against known terrorist individuals and organizations, there remained considerable debate over its applicability in a larger strategic context, particularly against states that possess or aim to possess WMD. Some participants stressed that the United States may be entering an era in which preemption can and should be contemplated to protect public goods – to combat, for example, massive violations of human rights and impending environmental disasters.
Discussants stressed the need to understand the advantages, risks, challenges, and constraints of preemption; and how it differs from, complements, and potentially conflicts with alternative strategies such as prevention, deterrence, and containment as well as how it affects the pursuit of national interests and the establishment of international law. Working from historical cases and drawing parallels with domestic and tort law, the group enunciated a well-established legal basis for preemption when employed in self-defense, requiring imminence and demonstrable exhaustion of peaceful alternatives.
Preemption is not a new concept: it has been used in the past by the United States and other countries to eradicate threats they have been deemed "imminent" in adherence to the principle of "anticipatory self-defense." Discussants cited a number of historical cases for consideration, including the British attack on the USS Caroline (1837), the Cuban Missile Crisis (1962), the Six-Day War (1967), the Israeli bombardment of the Iraqi nuclear reactor at Osirak (1982), the cruise missile strikes on Sudan and Afghanistan (1998), Kosovo (1999), and Operation Enduring Freedom in Afghanistan (2001). Collectively, these cases helped illuminate distinctions between policy goals and legal standards and between self-defense against imminent threats and the protection of public goods.
What We Don't Know:
There remains confusion over the legitimacy of preemptive acts. While lawyers tend to seek ex post fact-based findings of imminence and exhaustion of peaceful alternatives, policy makers operate under imperfect information and compressed decision-making cycles. Some concluded that this gap is inevitable. International law has yet to develop a "precise set of guidelines" or any sort of "policy checklist," with dim prospects of doing so successfully in the future. All agreed that states can and, in specific circumstances, must take preemptive action to counter threats out of self-defense, while recognizing that invoking a principle of "self defense" too often erodes confidence and proves counter productive. Many voiced concerns that while the United States will invoke the principle of self-defense judiciously, the elevation of preemption to the doctrinal level risked its adoption and abuse by terrorists and tyrants with more nefarious aims.
No clear consensus emerged for strategic desirability or legal feasibility of the potential to use preemptive force to protect public goods or prevent humanitarian disasters. Most concluded that when contemplating preemptive action other than for reasons of self-defense, legitimacy required multilateral action, preferably, though not necessarily, with explicit authorization from the UN Security Council. For example, one participant cited Kofi Annan's retrospective lamentation that the genocide in Rwanda had not been forestalled, even though the capacity to do so arguably existed. Still, there remained widespread skepticism towards the UN Security Council's ability to dispense legitimacy for public goods preemption either effectively or efficiently. In the opinion of many participants, the ability to justify preemptive action, either before or after, largely reflected which lawyers were present and which laws (if any) were consulted.
In addition to discussing criteria for legitimate preemption, participants raised a number of questions about the operational ramifications, including timing, targets, and degree of force used. There emerged a strong consensus that the global war on terrorism poses a special case. Because terrorists pose an ever-present threat of striking innocents, they perpetually satisfy the criteria of imminence. Moreover, as non-state actors, they divorce themselves from the obligations of international law, and in the process forfeit any concomitant protections.
Diverging views emerged on how to combat the WMD threat posed by Iraq. Conceptually, some questioned whether the current situation adequately satisfies the preemptive criterion of imminence, suggesting that the military options most prominently offered represent preventive rather than preemptive force. Others countered that the magnitude of the risk posed by the possession of WMD coupled with a well-established record of aggression collectively posed an imminent threat. On a pragmatic basis, reference was made to the recent assessment by the Director of Central Intelligence that a declaratory policy of preemption and the mobilizations that would entail would likely increase the risk of Iraqi WMD use, posing a self-fulfilling prophecy. On a more strategic level, some found it troublesome that a shift towards preemption represented a dangerously destabilizing return to a "first strike" dependency characteristic of the most perilous periods of the Cold War.
The debate over how to handle Iraq led to deliberative comparison of preemption with strategic alternatives such as deterrence and containment. While there was recognition that preemption should be considered only within the broader application of statecraft, including diplomacy, confidence and security-building measures, and clear signaling of intentions, many held that the possession of WMD in the risky hands of despots and aggressive tyrants both increased threats to U.S. security and reduced the time and strategic "room" to avoid the threats through peaceful means. In the same vein, some warned of the "enormous" consequences of inaction, stressing that the duty to protect citizens and national interests inevitably requires states to manage risks engendered by their own defense policies and actions. Still, others remained wary of the potential for U.S.-led preemptive actions to touch off aggressive policies and actions from other states who might no longer feel constrained by existing normative constraints.
This debate led back to the pros and cons of a declaratory policy of preemption as enunciated in the NSS. Some suggested that the inclusion of a doctrine of preemption within the NSS represented an "intentionally blunt instrument," brandished for calculated effect. Some expressed skepticism over the depth or breadth of the effect of the NSS, suggesting that the American public took little note of it and the vociferous reaction to it amongst friends and foes alike would soon recede. Furthermore, it was pointed out that the NSS stipulates a preference for collective action and recognizes the risks of abuse for the doctrine of preemption, acknowledging that too loose a definition of "anticipatory self-defense" risks encouraging and justifying widespread aggression. Nonetheless, some voiced opinions that the NSS is strategically imprudent, concluding that the formulation and enunciation of a doctrine of preemption is provocative, exacerbates the "security dilemma," reduces the ability to de-escalate crises, and suggests that the use of force is a first, rather than a last, resort.
Some adhering to this perspective suggested that U.S. national interests are better served by tailoring policies on an ad hoc basis to reflect the exigencies of a variety of threats, invoking recent situations in South Asia and the Balkans to illustrate the difficulties of forging rules which apply only in cases beneficial to U.S. interests. Participants discussed the Clinton Administration's resistance to a "doctrine for humanitarian intervention" upon concluding that any set of principles that would have provided adequate legitimacy for NATO actions in Kosovo would have also unacceptably raised the risk of justifying aggression. It was suggested that while in the abstract it is difficult to draw clear and universally applicable delineations between preemptive self-defense and aggression, the facts of any individual case can be selectively employed to provide legitimacy.
What Are the Next Steps?
Although there was no consensus about next steps, two main legal approaches emerged: (1) take existing law, pursue a comprehensive threat assessment, and modify international law accordingly; or, (2) outline desired strategic outcomes, devise policies for achieving them, and seek to devise and/or modify rules to accommodate the preferred policies. Some declared that the UN Charter already provides ample basis for justifiable preemption, concluding that our security and legal concerns require a correct interpretation of the UN Charter rather than new law, reaffirming that the formation of law is necessarily evolutionary.
The participants agreed that the only real consensus was that international law develops over time as a result of state practice.