National Self-Defense, International Law, and Weapons of Mass Destruction

The most publicized element of The National Security Strategy of the United States of America (the "Strategy"), promulgated in September 2002 by the Bush administration,1 is its emphasis on the option to use preemptive military strikes to address threats to the United States before they fully materialize. This is set in the context of terrorist organizations, such as al Qaeda, or so-called rogue states, such as Iraq or North Korea, acquiring and threatening to use weapons of mass destruction-in other words, chemical, biological, or nuclear weapons. The terms "preemptive attack," "preventive war," and "anticipatory self-defense" will be used interchangeably in this Article. Arguably, the term anticipatory self-defense could imply action against a truly imminent, alleged threat, while preventive war could be addressed to a threat that is yet to fully mature, with preemptive attack somewhere in between. Even though the three terms are somewhat different, the lines between them are not clear, and they all involve aggressive action. Thus, the question becomes whether a particular attack is justified under the rules of international law as a legitimate act of self-defense, given the circumstances. Section III of the Strategy states that the government will defend the United States, the American people, and our interests at home and abroad by identifying and destroying the threat before it reaches our borders. While the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively against such terrorists.2 This Article addresses whether the implementation of this doctrine of preemptive attack or preventive war is consistent with international law. It is noteworthy that Section V of the Strategy itself places this new doctrine in the context of international law: For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat-most often a visible mobilization of armies, navies, and air forces preparing to attack. We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction-weapons that can be easily concealed, delivered covertly, and used without warning.3 To emphasize that the aim of the Strategy is, in part, to adapt the international law of self-defense to an age where weapons of mass destruction are potentially in the hands of rogue states and terrorists, the Strategy also says: "We 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. ... We must deter and defend against the threat before it is unleashed."4 Evidence that the United States was prepared to engage in preemptive action in the past is beyond question. During the Cold War, if the government had received reliable information that a Soviet thermonuclear first strike was imminent, it would have contemplated using the highly accurate nuclear counterforce weapons the United States possessed, such as the Peacekeeper ICBM and the Trident D-5 nuclear missile, to remove such a threat. However, the United States was always careful to insist that it followed a second-strike policy and would only respond with its nuclear forces after being attacked, while continuing to maintain a launch-on-warning option. The Soviet Union had to assume in its nuclear planning that a counterforce attack on the United States would be ineffective because the US missiles would be launched before the arrival of Soviet weapons. …