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Preemptive Use of Force

I caught Professor Bainbridge’s post on International Law and the Preemptive Use of Force, and it really struck a nerve. His excerpt of the article by Tony Arend (warning: subscription required) suggested:

First, […] preemptive force in self-defense should only be undertaken unilaterally if the Caroline criterion of imminence was met. […] Second, […] the use of preemptive force should be undertaken in the absence of imminence only with the approval of the Security Council. […] Third, the United States should acknowledge that existing international law relating to the use of force is highly problematic and seek, through the Security Council, to move toward the development of a legal regime that would be truly authoritative and controlling of state behavior.

First, the Caroline criteria are generally stated as “necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment of deliberation.” (found here, along with some good discussion by the Carnegie Council on Ethics and International Affairs.)
This formula seems to be poorly regarded by international lawyers, except when used as an after-the-fact justification. But accepting these criteria in the case of terrorism based on WMD can actually make unilateral action MORE likely.

Second, a Council on Foreign Relations report has this:

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.

So terrorists with WMD are a perpetually imminent threat, satisfying forever the Caroline criteria, and at the same time these terrorists are a violation of international law and are thus removed from the law’s protection. This is also consistent with holding that states that harbor terrorists are engaged in a proxy war against the targets of terrorism.
The Carnegie Council and other seem content to rely on the UN. I would submit that the UN has proven over the last 25 or more years to be useless in international affairs. While the UN and it’s supporters credit it with keeping the peace since 1945, I think that detente, MAD and the carefully maintained balance between the USA and the USSR had a lot more to do with what peace there was than this old dictator’s club. It would be foolish and irresponsible to allow the UN Security Council to have a veto over the defense of the US. Russia, France and China do not have our best interests at heart.

Third, international law regarding use of force is not particularly problematic. The Caroline criteria were widely used prior to 1945. The UN charter provides additional definition. What is problematic is the status of terrorists. As I addressed in a post on national sovereignity, nations have a responsibility to control the threats emerging from their borders. Failure to control the threat gives the victim the right to control it themselves. Backing terrorists today is no different from hiring privateers or issuing Letters of Marque in the past, and should be considered an act of aggression against anyone harmed by these terrorist groups.
The ‘problematic’ thing is the way the UN and others stand in the way and defend the sponsors of these aggressive acts from the natural consequences. A ‘legal regime truly authoritative and controlling of state behavior’ in this situation is one that acknowledges the right of the victim of state sponsored terrorism to defensively attack the sponsoring state.

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