WarningThis information has been archived for reference or research purposes.

Archived Content

Information identified as archived on the Web is for reference, research or recordkeeping purposes. It has not been altered or updated after the date of archiving. Web pages that are archived on the Web are not subject to the Government of Canada Web Standards. As per the Communications Policy of the Government of Canada, you can request alternate formats on the "Contact Us" page.

Views and Opinions

The New Political reality of pre-emptive Defence

by Doctor Karl-Heinz Kamp

Print PDF

For more information on accessing this file, please visit our help page.

In light of the fierce transatlantic debates of recent years, most Europeans appear to have forgotten that George W. Bush became president with the firm intention to reduce US commitments and engagements abroad. In contrast to his predecessor, he demonstrated only limited interest in the Near East and Middle East and only halfheartedly pursued President Clinton’s counterterrorism approach. Instead, Bush focused on the idea of a global missile defence, which led to the European accusation that this isolationist president intended to retreat to a “Fortress America.”

The tragedy of September 11 brought exactly the opposite reaction. The US was prepared, for the sake of its own security, to change the political status quo in far distant regions – if necessary by military force. Moreover, in his speech to West Point Military Academy cadets in June of 2002, approximately nine months after the collapse of the World Trade Center and nine months before the war in Iraq, President Bush claimed the right of the United States to use armed force before an attack on its own territory occurred. A few months later, the option of pre-emptive defence was laid down in the new US National Security Strategy (NSS). Critics saw therein a breach of the prohibition on wars of aggression set down in international law, while its proponents referred to the changed threat situation. All of this makes a new examination of the concept of defence necessary.

In Europe, this fundamental debate on security policy was largely ignored. Only a few international law experts and individual politicians took notice of the explosiveness of the question. One reason for this has been, among other things, that the general discussion about pre-emption ignited by the American president coincided with the specific case of Iraq. In that sense, transatlantic dispute over Iraq precluded a sober discussion on the future interpretation of “defence.” However, neither European policymakers nor the public at large will be able to avoid this complex question because the consequences transcend a purely American dimension.

What rationale lies behind the claim for pre-emptive strikes? Why is it not only an American issue but also an international reality? How can the misuse of force be avoided?

The Logic of Pre-emptive Military Force

The major reason for American support for pre-emptive strikes is the acknowledgement of a fundamentally changed threat situation, particularly after the crucial date of 11 September 2001. This does not only concern the sheer existence of nuclear, biological or chemical weapons – they do not represent a truly new factor in the today’s threat analysis. What is decisive, however, is the combination of three different threat elements: the spread of weapons of mass destruction, the availability of the means of delivery for them (rockets or cruise missiles) and weapon-technology progress with respect to range and accuracy. Thus, more and more states and non-governmental organizations (NGOs) are now able to project destructive power over long distances. Geographic distance is becoming less of a factor in threat analysis. The parallel to this development is that those defending against such attacks have less and less time to react. The traditional NATO principle of waiting for the proof of an opponent’s intention to attack (for example, the hostile operational movement of Warsaw Pact troops) before activating military defence was valid during the Cold War, but it is becoming increasingly questionable today. Under present circumstances, the proof of an opponent’s intention to attack might be the detonation of a chemical weapon in a major city. To wait for such a case, considering the potential number of casualties, would be unjustifiable. Instead, in extreme cases, it must be possible to effectively counter such threats before they become acute.

Currently, however, in American usage, the distinction between “pre-emptive” and “preventive” strikes is made – a difference that is more than a linguistic subtlety. One speaks of a pre-emptive strike when an attack is made on an enemy whose attack is imminent. A preventive strike means, however, that the attack is made solely on the assumption that offensive military action by the enemy will soon occur. While pre-emption used as defence in circumstances of an immediate danger can be quite legitimate, a preventive war that uses military means to assert a country’s own interests is normally difficult to justify. In practice, however, the suitability of this distinction is limited. On one hand, these definitions are disputed. In fact, some European international law scholars use these definitions to mean exactly the opposite. On the other hand, concrete, specific dangers and scenarios, which, in any case, are to a certain degree open to interpretation, could only rarely be assigned to one of the two categories. While the state that uses military force will always present its actions as pre-emptive, the critics will generally blame the action as either preventive or simply as aggressive.

The Relevance for Europe

Regardless of the terminology, the questions of when and under what circumstances armed force may be used can no longer be ignored. Nations other than Washington have now drawn the conclusion that, in extreme situations of danger, pre-emptive military strikes can also be necessary. Countries that had recently been skeptical of pre-emption considerations, now consider this option necessary. Even France – a long-time vehement critic of “pre-emptive strikes” – has claimed the right to pre-emptive deployment of its armed forces in its new “Programmation Militaire.” Russia reserves the right to pre-emption – as does Australia. Even in Japan, where military restraint is anchored in the constitution, pre-emptive strikes are being discussed at the government level.

Not only have individual governments taken up the question of pre-emption, but so have alliances and organizations. At its latest summit, held in Prague in November 2002, NATO adopted a new military concept to fight terrorism (MC 472) in which, at least implicitly, pre-emption is discussed even though, for the most part, the media did not notice this change. Although the terms “pre-emption” and “anticipatory self defence” are not explicitly mentioned, it is clear from the entire wording of the document that NATO does not fundamentally rule out pre-emptive strikes against terrorist threats. Beyond this, the European Union has discussed the pre-emption question in the framework of a new security strategy ratified in December 2003.

Thus, the idea of pre-emptive military action is no longer, as conventional wisdom would have it, an over-reaction of a single American president to the disaster of September 11. Instead, the need to redefine the understanding of defence in light of new threats is being met with ever-increasing international resonance.

The Question of International Law

Regardless of a widespread willingness to consider pre-emption, questions remain with respect to the legitimacy of pre-emptive defence under international law. Strictly interpreted, the Charter of the United Nations forbids military interventions, and grants national sovereignty highest priority. The use of force is only legitimate for the purpose of self-defence or if mandated by the UN Security Council. Such a narrow interpretation, however, has steadily declined in recent years. The catch phrase “rogue states,” that has been used for the last few years already breaks with the primacy of national sovereignty since it implies that by ignoring fundamental values, a country can lose its rights as a state. Furthermore, the humanitarian intervention of NATO in Kosovo contradicted the classic interpretation of the Charter. In light of the inability of the UN Security Council to agree upon military action, the Bush Alliance gave priority to fighting the obvious human rights violations in the Balkans over the prohibition of the use of force and thus went to war without a Security Council mandate. In contrast to the words of the UN Charter, NATO placed higher value on the protection of human rights than on a state’s protection from external intervention.

Here lies the key to the progression of international law. Instead of calling for formal rules, future actions must be more about interpretation and judgment. For each concrete situation, the fundamental values that underpin international law need to be weighed against each other. From this perspective, it is not only issues such as the danger from weapons of mass destruction or humanitarian requirements that would justify pre-emptive military intervention – it would also be conceivable, in extreme cases, to intervene to protect natural resources necessary for life. Examples might include a vital threat from ecologically irresponsible barrage projects, or dramatically unsafe nuclear power stations near an international border.

Almost inevitably, a break from a formal interpretation of international law to a discretionary and deliberative mechanism creates legal uncertainty. The decision to deploy troops, therefore, must be bound to certain concrete requirements and criteria, such as the imminence of danger, the plausibility of the threat and the proportionality of the means.

None of these criteria is precisely measurable or legally enforceable, nor is the list of conditions complete. Here, political debate must occur within individual states as well as in the United Nations in order to achieve as broad a consensus as possible as to how these threats can be adequately addressed in the coming years in light of the changed security situation. Nevertheless, such a consensus will never completely prevent the misuse of military force. The possibility that threats will be intentionally exaggerated in order to justify the use of military force against another state or a non-state protagonist cannot be ruled out. This problem, however, will not be solved by a rigid interpretation of the UN Charter. There are enough examples in the last few decades where states have attempted to justify using their military forces based upon questionable principles of legitimacy.

The Political Decision for a Pre-emptive Military Strike

In addition to the legalities involved in a pre-emptive military strike, there is the political/practical side of the issue to be considered. Under what conditions can the political decision be taken for the use of pre-emptive strikes, and how can such decisions be implemented? When is a threat pressing enough to justify a pre-emptive strike, and upon which source (or sources) of information will the decision be made?

A pre-emptive action does not only have to entail overthrowing a government. The spectrum of possible options is, in fact, substantially broader. Non-military as well as “semi-military” actions are just as conceivable against governments and non-governmental actors. These can take place on a state’s soil, or, for instance, in international waters. They can include interrupting information streams, capturing ships, intercepting aircraft, comprehensive blockading or acts of sabotage. They can be accomplished by regular armed forces, by Special Forces or by secret services. The targets of pre-emptive action can be production or storage facilities for weapons of mass destruction, command centres for terrorist organizations, or various other state facilities. Each of these options has different levels of acceptability and feasibility. Destruction of a terrorist training camp is more likely to meet with public approval, on both the national and international level, than the overthrow of a government.

All of these actions have in common that they can only be justified in cases where the threat is exceedingly urgent and immediate. The question of urgency, however, leads to a serious dilemma in following this line of reasoning when considering weapons of mass destruction. If one decides as late as possible for a military strike, in order to demonstrate that the threat was obviously and without doubt imminent, the success of a countering action may potentially be much less. The attacker will by then have most likely fully developed his weapon arsenal and protected it by dispersal or by deployment in hardened underground facilities. In extreme cases, fighting the threat can be almost impossible by the time the seriousness of the situation is recognized and acknowledged. If, instead, a threat is dealt with promptly, the chances of success are usually better. On the negative side of this scenario, however, is that in such cases it would be far more difficult to demonstrate urgency and thus to receive public support.

With regard to this dilemma, it appears difficult to find a mutually acceptable definition of urgency. In the 1970s, there was already debate in America over “just” and “unjust” wars and whether an “imminent attack” was the necessary legal standard for military action, or if a “sufficient threat” might be more appropriate. Even if such a limitation must remain vague, certain criteria can nevertheless be established:

  • The opponent’s intention to inflict harm must be evident: for example, a head of state or a head of a terrorist group declaring such intent.

  • Preparations and relevant measures to realize this intention must be recognizable, such as, the offensive relocation of troops or launch preparations for missiles. Technological developments play a large role here. If the range capability of rockets increases and allows for even shorter reaction time on the part of the potential victim, the threshold is thereby reduced at which preparation for an attack can be tolerated.

  • It must be obvious that non-action dramatically increases the risks or makes later reactions almost impossible. An example of this was Israel’s bombing of an Iraqi nuclear reactor in 1981. Israel asserted that the reactor would be used to make material for Iraq’s nuclear weapons program. June was specified as the time for the attack because the facility was to be loaded with nuclear fuel the following month. Bombing a reactor filled with radioactive material would hardly have been possible.

With respect to each of these criteria, the question arises as to the source of the information for evaluating the danger. As a rule, the information is provided by intelligence services. To achieve an appropriate picture of the situation, not only must the available threat potential (such as weapons and military forces) be correctly portrayed, the intentions and the “strategic culture” of the opponent must be adequately rendered as well. Is there a real intention to attack? Could weapons of mass destruction be given to a third party, i.e. terrorist groups? How will the opponent react to a pre-emptive strike? At the same time, decisionmakers can be confronted as much with the problem of an overload of information as with a lack of reliable data. Just before the attacks of 11 September 2001, the American intelligence services experienced a flood of individual indications of a terrorist threat, many containing decisive clues. The opposite is the case for such isolated countries as North Korea. Here, the problem is one of spotty intelligence, which greatly increases the difficulty for political decisionmaking. In both cases, the challenge lies in selecting and interpreting the available information, remembering that a degree of uncertainty in the findings is inevitable.

How difficult such an undertaking is in practice was demonstrated during the latest Iraq crisis. Although the United States possesses the most advanced information capabilities, and although Iraq was an easy intelligence target, due to international inspections over the years, no definitive picture of Iraqi weapons of mass destruction capabilities has yet been drawn.

A Necessary Debate

Extreme situations may require a preventive deployment of military force. This must then be bound to concrete conditions. None of the mentioned criteria, however, can be categorically defined or legally enforced. Moreover, this list of legal and political prerequisites for pre-emptive strikes is not complete. A debate must take place within individual countries and within the United Nations to achieve the widest possible consensus on addressing future security challenges. A public discussion is essential to prevent the abuse of pre-emptive military strikes. Even if criteria are specified for pre-emptive military deployment, the legitimacy and commensurability of such an action will always be subject to interpretation. Misuse of force cannot be excluded in principle. When political decisionmakers (at least, in democratic countries) have to justify their actions to a critical and informed public and must accept the consequences of bad decisions, this acts as a deterrent to the cavalier use of military might. If the public, however, declines to engage in such a debate, it gives up a substantial instrument of control over its government.

CMJ Logo

Doctor Karl-Heinz Kamp is the Security Policy Coordinator of the Konrad Adenauer Foundation in Berlin.