Preemption and Law in the Twenty-First Century[dagger]

I. INTRODUCTION No aspect of the Bush Administration's foreign policy has caused greater consternation in Europe, at the United Nations, and among the Academy than the doctrine of preemption.1 As the President has made clear, both in the 2002 National Security Strategy of the United States of Amenca (NSS)2 and in numerous other public statements, the United States claims the legal right to take military action to preempt gathering threats to its national security, with or without the sanction of the UN Security Council. Despite the outraged cries of critics, both at home and abroad, the doctrine of preemptive self-defense is well-grounded in customary international law, fully consonant with the UN Charter, and promises to be an indispensable part of American statecraft in the twenty-first century. In the past, preemption often has been described as self-defense, and it is an integral part of the most fundamental legal right, the right to self-preservation, held by individuals and states alike. It was described by Emmerich de Vattel, one of the eighteenth century's great international law publicists, as follows: [O]n Occasion, where it is impossible, or too dangerous to wait for an absolute certainty, we may justly act on a reasonable presumption. If a stranger presents his piece at me in a wood, I am not yet certain that he intends to kill me; but shall I, in order to be convinced of his design, allow him to fire? What reasonable casuist will deny me the right of preventing him? But presumption becomes nearly equal to a certainty, if the prince, who is on the point of rising to an enormous power, has already manifested an unlimited pride and insatiable ambition.3 Vattel, of course, was writing to justify armed action against Louis XIVs France (after the Bourbon family inherited the Spanish throne-and empire-in 1701), but the rule is equally applicable to modern dangers, whether in the form of transnational terrorist networks or rogue states seeking weapons of mass destruction (WMD). As a practical matter, no state can be expected to watch threats to its security develop and then to accept and absorb a first strike before itself taking action. Neither law nor reason would support such a result. This is not to say, of course, that the doctrine of preemption cannot be, or has not been, abused. Over time, states have often used the right of anticipatory self-defense as a pretext for aggression. Indeed, only a hopelessly unimaginative statesman would be unable to articulate some plausible-sounding defense claim for belligerent aims, whatever they might be. In 1939, for example, Hitler invaded Poland because of alleged Polish incursions into German territory, and later attacked the Soviet Union on the pretense that Stalin was planning military action against the Third Reich.4 Similarly, Stalin sought to cast Moscow's seizure of the Baltic States and part of Poland as actions undertaken in anticipation of inevitable capitalist aggression against the socialist motherland. Nevertheless, the right of self-defense, including the right to preempt an attack before it is launched, has remained a hardy perennial of international law. Whatever the fashion in intellectual circles, the government officials actually charged with protecting their nations' interests have consistently exercised the option of using force in anticipation of attack, even in circumstances where the threat remains relatively distant and arguably uncertain. II. THE TRADITIONAL DOCTRINE OF ANTICIPATORY SELF-DEFENSE Although the doctrine of anticipatory self-defense has existed for centuries, international law experts generally cite the 1837 Caroline incident for its modern exposition. That case involved the British destruction of an American steamship in US territorial waters, near the New York shore of the Niagara River.5 Britain claimed the right to take this action because the Caroline had been used, and would likely be used again, to support a rebellion then ongoing in Canada. …

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