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Preemptive Use Of Force Under International Law

James Catano - 8/28/2006

The article is written in reference to the parallel between National Security Strategy 2006 and the Caroline Incident of 1837, specifically, the preemptive use of force.

Preemption, and the preemptive use of force in response to an imminent threat, remains a recognized, viable option within the framework of international law.1 In the Caroline Case of 1837,2 which provided the foundation for preemptive use of force pursuant to customary international law, the then Secretary of State Daniel Webster asserted that necessity and proportionality are imperative to the legitimacy of a preemptive strike. While Webster’s contentions remain a central tenet of anticipatory actions, the National Security Strategy (the “NSS”) of 2006 expanded upon the established framework of NSS 2002, and declared that “[t]o forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively in exercising [its] inherent right of self-defense.”3 Although the Caroline Case and NSS 2006 coexist ipso facto an understanding of necessity, or imminent danger, as an essential element in the legitimate use preemptive force, the two drastically diverge regarding the characterization of an imminent threat and the perception of proportionality as requisite aspects of the preemptive use of force. Although the current international environment4 does not permit the United States to afford such threats to materialize, the Administration must remain conscious of established principles of necessity and proportionality.

During the Caroline incident, Webster, in correspondence with Lord Ashburton, the British envoy to the United States, outlined the circumstances under which an anticipatory strike remains legitimate. According to Webster, a nation may only use the preemptive use of force if it can confirm a necessity of self-defense, the circumstances of which must remain “instant, overwhelming, [and] leav[e] no choice of means [nor] moment for deliberation.”5 Furthermore, Webster asserted that even if the conditions justify action, the use of force “must be limited by that necessity, and kept clearly within it.”6 Consistent with Webster’s political and legal acumen, the preemptive introduction of military force remains legitimate if employed in response to an imminent, immediate, and overwhelming threat; provided, however, that such anticipatory self-defense remains in accordance with the principle of proportionality.

Concerning preemption, the NSS 2006 maintained a slight resemblance to the precedent expressed in the Caroline Case. The Bush Administration asserted that democracy promotion, in conjunction with international diplomacy and partnerships, remained the principal foreign policy tools of the United States. Conversely, NSS 2006 which characterized the U.S. as being in a war of necessity, effectively marginalized the ideals of deterrence and containment. This marginalization, due, in part, to perceived threats and the need for expeditious actions, purported the grave challenges confronting America. In order to combat modern threats, America “will not resort to force in all cases to preempt emerging threats,”7 yet the U.S. “will, if necessary, act preemptively.”8 In the short term, the Administration retained force as critical to preserving the national security of the United States. Broadly defined, and subject to wide interpretation, the Administration maintained anticipatory strikes as an instrument of foreign policy.9

There are limited conditions, specifically the notion of necessity, in which the Caroline Case and NSS 2006 coexist. Both Webster and the NSS 2006 recognize immediate, imminent, and impending attacks as situations which offer no alternatives but the use of force, this fulfilling the requisite legitimizing aspect of necessity. Both recognize force as a last resort, to the extent that the Bush Administration aims to utilize diplomacy and alliances in efforts to dissuade adversaries from attempting to acquire weapons or attacking U.S. interests. The inception of NSS 2006 also affirmed the U.S. “will not rule out the use of force before attacks occur, even if uncertainty remains as to the time and place of an enemy’s attack.”10 Therefore, the Bush Administration, which maintains the preferred position in the unmistakable disparity of world military power, reserved anticipatory use of force as a decisive foreign policy device. The U.S.-led invasion of Afghanistan in 2002 proved necessary, although to some extent, anticipatory11, as a military response to a previous attack and in accordance with self-defense.12 Although force in Iraq remains divisive, the U.S. has maintained military reticence regarding current situations in Iran and North Korea, refraining from hastily using force, yet conveying it as an option.13

The criterion of proportionality expounded by Webster in the Caroline Case insisted that “act justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it.”14 Webster implied that a response to a perceived imminent threat must correspond to the threat itself; therefore advocating limited scope in the use of force. Conversely, the Bush Administration aims to, inter alia, deny terrorists safe haven and prevent them from acquiring weapons of mass destruction. Contrary to the principles of Webster, NSS 2006 acknowledged that if there is a need for military action the U.S. will employ required devices, and, “if necessary, respond by overwhelming force.”15 Relative to circumstances, costs associated with the use of military force may prove worth incurring in order to support ubiquitous goals, regardless of ambiguities associated with proportionality. Furthermore, in the current global threat environment, risks remain evident when states act consistently, and exactly proportional.16

The Caroline Case effectively instituted a legal distinction and established the principles of necessity and proportionality.17 In almost complete divergence, the Bush Administration retained the inherent right of self-defense and reserved preemptive and anticipatory strikes as an instrument of foreign policy.18 Though necessity and proportionality remain circumstantially relevant, each must be applied to inherently different contexts within the international milieu. However, NSS 2006 maintained a margin of flexibility regarding anticipatory self-defense and proportionality, and presented the United States as a hyper power, willing to use preemptive and preventive, overwhelming military force, if necessary.19