The Doctrine of Preemptive Self-Defense PDF

Volume 50 Issue 3 Article 9 2005 The Doctrine of Preemptive Self-Defense Sean D. Murphy Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the International Law Co...

Volume 50 Issue 3 Article 9 2005 The Doctrine of Preemptive Self-Defense Sean D. Murphy Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the International Law Commons Recommended Citation Sean D. Murphy, The Doctrine of Preemptive Self-Defense, 50 Vill. L. Rev. 699 (2005). Available at: https://digitalcommons.law.villanova.edu/vlr/vol50/iss3/9 This Symposia is brought to you for free and open access by the Journals at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. 20051 THE DOCTRINE OF PREEMPTIVE SELF-DEFENSE SEAN D. MURPHY* I. INTRODUCTION N enduring reality demonstrated by the terrorist attacks of September 11, 2001 is that non-state actors are capable of projecting extreme violence across the globe. The September 11 attackers were a variety of individuals who were trained and recruited across multiple states, who were instructed and funded by a loose but sophisticated Al Qaeda net- work, and who then surreptitiously acquired the means to unleash a vi- cious attack that within a matter of hours killed more than three thousand 1 people, mostly civilians. This ability of non-state actors to project force across the globe is par- ticularly troubling in the context of their potential use of weapons of mass destruction (WMD). Although governments have possessed WMD for many decades, such weapons have rarely been used, largely because of the understanding by states that the use of WMD against another state would almost certainly lead to general, worldwide condemnation and possibly a response in kind. Such notions of inter-state deterrence and reciprocity, however, are far less apparent with respect to relations between a state and a non-state actor engaged in terrorist behavior, especially if the non-state actor is not seeking broad sympathy for its cause. A terrorist organization may well believe that responsibility for a WMD attack could be concealed from the attacked state, or believe that the attacked state could not effec- tively respond against an amorphous non-state network. Thus, were such a network able to obtain WMD-whether in the form of biological, chemi- cal or nuclear weapons-there may be little incentive not to use them. Acquisition of WMD by non-state actors may be difficult, but is not impossible. Large stocks of Russian plutonium from dismantled weapons are vulnerable to theft and sale on the black market.2 Infectious orga- * Professor, George Washington University Law School. B.A., Catholic University; J.D., Columbia University; LL.M., Cambridge University; S.J.D., University of Virginia. My thanks to the Fletcher School of Tufts University for the opportunity to present an earlier version of this paper, and toJos6 Arvelo-V61ez for both thoughtful insights and invaluable research assistance. 1. See generally THE 9/11 COMMISSION REPORT: FINAL REPORT OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES (2004) (providing account of events leading up to and including terrorist attacks of September 11, 2001). 2. See, e.g., AMYv F. WOOLF, CONGRESSIONAL RESEARCH SERVICE, NUCLEAR WEAP- ONS IN RUSSIA: SAFETY, SECURITY, AND CONTROL ISSUES, CRS ISSUE BRIEF (updated Aug. 15, 2003), available at http://www.fas.org/spp/starwars/crs/IB98038.pdf (ex- plaining potential safety issues regarding nuclear weapons security and storage in former Soviet Union). (699)  VILLANOVA LAW REVIEW [Vol. 50: p. 699 nisms suitable for bioterrorist use are available for commercial sale; some twenty-five such organisms can even be obtained from natural sources, such as infected animals or, in the case of anthrax, the soil. 3 The possibil- ity of an attack by terrorists using chemical weapons was vividly demon- strated in March 1995 in Tokyo, Japan, when a religious cult released a form of sarin nerve gas in Tokyo's subway system during morning rush hour, killing twelve and injuring more than five thousand people. 4 Once WMD are acquired, transporting them across the globe is also difficult, but not impossible. The United States has 14,000 small airports and 95,000 miles of unprotected coastline; of the some 16,000,000 cargo containers that reach U.S. shores each year, only five percent are inspected. 5 The idea that an organization such as Al Qaeda may obtain a WMD, smuggle it into the United States on board a container ship and then release or detonate it in a major U.S. city, strikes many6 analysts as not so much a question of "if" as it is a question of "when." The realities of the post-September 11 period led the Bush adminis- tration in 2002 to articulate, in very strong and public terms, a doctrine of "preemptive self-defense." Among other things, the doctrine asserted an evolved right under international law for the United States to use military force "preemptively" against the threat posed by "rogue states" or terrorists who possess WMD. 7 According to the Bush administration: 3. See Jonathan B. Tucker, Biosecurity: Limiting Terrorist Access to Deadly Patho- gens, 52 PEAcEwoRKs 1, 15-18 (2003), available at http://www.usip.org/pubs/ peaceworks/pwks52.pdf (discussing potential sources of biological agents used in manufacture of biological weapons). 4. See T.R. Reid, Japanese Police Arrest Key Cult Figure;Media Reports Say 25-Year- Old PlannedLethal Subway Gas Attack, WASH. POST, May 15, 1995, at Al 3 (describing circumstances and facts surrounding Tokyo subway gas attack). 5. See Matthew Brzezinski, Fortress America: On the Front Lines of Homeland Security-An Inside Look at the Coming Surveillance State 8, 220 (2004) (noting vulnerabilities of United States); see also Stephen Flynn, America the Vulnerable: How Our Government is Failing to Protect Us from Terrorism 81-110 (2004) (dis- cussing vulnerability of United States to terrorist attack via shipping containers coming through American ports). 6. See, e.g., ANONYMOUS, IMPERIAL HUBRIS: WHY THE WEST Is LOSING THE WAR ON TERROR 152-58 (2004) (describing analysis by anonymous CIA official of Al Qaeda's determination to use WMD against United States); see also Bill Miller & Christine Haughney, Nation Leftifttery by Latest Series of Terror Warnings,WASH. POST, May 22, 2002, at Al (reporting U.S. Secretary of Defense Donald H. Rumsfeld's statement that terrorists will inevitably obtain WMD and U.S. Homeland Security Director Tom Ridge's statement that additional terrorist attacks are "not a ques- tion of if, but a question of when"). Al Qaeda has already carried out post-Septem- ber 11 attacks in Bali, Casablanca, Chechnya, Iraq, Istanbul, Madrid, Philippines, Riyadh and Thailand. See ANONYMOUS, supra, at 91-100 (listing numerous attacks carried out by Al Qaeda around world since September 11 attacks). 7. See THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA 15 (2002), available at http://www.whitehouse.gov/nsc/nss.pdf [hereinafter NA- TIONAL SECURITY STRATEGY] (asserting that international law has recognized need for nations to defend themselves against states that present imminent danger and that United States maintains option of preemptive actions against serious dangers to national security); see also President George W. Bush, Commencement Address 2005] THE DOCTRINE OF PREEMPTIVE SELF-DEFENSE 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 at- tack. 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. The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction-and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively.8 Although the Bush administration articulated the doctrine, accept- ance of the doctrine within the U.S. government appears widespread. In the joint resolution enacted by Congress to authorize the use of force against Iraq in 2002-03, Congress found: Iraq's demonstrated capability and willingness to use weapons of mass destruction, the risk that the current Iraqi regime will either employ those weapons to launch a surprise attack against the at the United States Military Academy in West Point, New York, 38 WEEKLY COMP. PREs. Doc. 944, 946 (June 10, 2002) ("[Olur security will require all Americans to be forward-looking and resolute, to be ready for preemptive action when necessary to defend our liberty and to defend our lives."); NATIONAL STRATEGY TO COMBAT WEAPONS OF MASS DESTRUCTION 3 (2002), available at http://www.whitehouse.gov/ news/releases/2002/12/WMDStrategy.pdf (arguing that in order for counter-ter- rorism measures to be effective, U.S. military forces must have ability to preemp- tively attack WMD-armed adversaries, destroying WMD before they can be used); SECRETARY OF DEFENSE DONALD H. RUMSFELD, ANNUAL REPORT TO THE PRESIDENT AND THE CONGRESS 30 (2002), availableat http://www.defenselink.mil/execsec/adr 2002/index.htm (evaluating lessons that should be learned by United States fol- lowing events of September 11, 2001 and military campaign in Afghanistan, includ- ing lesson that "defending the United States requires prevention and sometimes preemption"); Richard N. Haass, Sovereignty: Existing Rights, Evolving Responsi- bilities, Remarks at Georgetown University (Jan. 14, 2003), at http:// www.state.gov/s/p/rem/2003/16648.htm (asserting that United States must take preventative measures to prevent failure of states and consequences that follow). 8. NATIONAL SECURITY STRATEGY, supra note 7, at 15.  VILLANOVA LAW REVIEW [Vol. 50: p. 699 United States or its Armed Forces or provide them to interna- tional terrorists who would do so, and the extreme magnitude of harm that would result to the United States and its citizens from such an attack, combine to justify action by the United States to defend itself.9 Asked about this issue during the 2004 presidential campaign, the nomi- 10 nee for the Democratic Party endorsed the doctrine. Compliance with international law on the use of armed force presents extraordinary problems, for such law implicates core national security in- terests of states (the same phenomenon may be seen in disputes over the war power in U.S. constitutional law). Nevertheless, policy-makers must pay attention to whether a particular act of "preemptive self-defense" would likely be regarded as violating international law, because there may be significant political, economic and military repercussions, as discussed in Part 11.11 To date, however, no authoritative decision-maker within the international community has taken a position on whether preemptive self- defense is permissible under international law, or whether it is permissible but only under certain conditions. The judicial wing of the United Na- tions, the International Court of Justice (ICJ), has not passed upon a case or issued an advisory opinion on preemptive self-defense. In the Military 12 and Paramilitary Activities in and Against Nicaragua case ("Nicaragua case"), the ICJ advanced important interpretations regarding the status of law on the use of force, but the ICJ went out of its way to state expressly that it took no view on "the lawfulness of a response to the imminent threat of an armed attack." 13 The U.N. Security Council, charged with maintaining peace and security, has issued no resolution expressly con- 9. Joint Resolution Authorizing the Use of Force Against Iraq, Pub. L. No. 107-243, 116 Stat. 1498, 1499 (2002); see CARL E. BEHRENS, CONGRESSIONAL RE- SEARCH SERVICE, NUCLEAR NONPROLIFERATION ISSUES, CRS ISSUE BRIEF (updated June 21, 2004), available at http://www.fas.org/spp/starwars/crs/IBI0091.pdf ("If nonproliferation and deterrence fail, the Defense Department could be ordered to use military force to destroy weapons of mass destruction."). 10. See Transcript: First Presidential Debate (Sept. 30, 2004), at http:// 93 www.washingtonpost.com/wp-srv/politics/debatereferee/debate-0 0.html (de- bating issues of foreign policy). Asked for his "position on the whole concept of preemptive war," Senator John Kerry answered: The president always has the right, and always has had the right, for pre- emptive strike. That was a great doctrine throughout the Cold War. And it was always one of the things we argued about with respect to arms con- trol. No president, though [sic] all of American history, has ever ceded, and nor would I, the right to preempt in any way necessary to protect the United States of America. Id. 11. For a discussion of the repercussions of violating international law on pre- emptive self-defense, see infra notes 16-18 and accompanying text. 12. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.CJ. 14 (June 13. See id. at 103. 2005] THE DOCTRINE OF PREEMPTIVE SELF-DEFENSE 703 demning or approving of preemptive self-defense, although it has issued important decisions that relate to the issue. Consequently, states and scholars are left arguing its legality based principally on their interpretation of the meaning of the U.N. Charter and on state practice since the Charter's enactment in 1945. As discussed in Part III, international lawyers (whether government attorneys, other prac- titioners or academics) have taken very different views regarding the legal- ity of preemptive self-defense, and their views might be seen as falling into four basic schools of thought: the strict constructionist school, the immi- nent threat school, the qualitative threat school and the "charter is dead" school. 14 Part IV suggests that this fracturing of views is attributable at least in part to the unwillingness of most international lawyers to articulate and defend the methodology that they are using in reaching their views, which would require confronting certain methodological problems in as- sessing state practice since the enactment of the U.N. Charter in 1945.15 The lawyer's craft is something between an art and a science; although interpretation of prior precedent cannot be done with precision, it must be done in accordance with recognizable and rational standards in order to be persuasive. Until lawyers more fully grapple with these issues of methodology, it is unlikely that greater convergence within the community of international lawyers will emerge. Through greater convergence, the normative stan- dards set by international law may become clearer and more helpful for states in ordering their relations, thus promoting greater stability for inter- state relations. Moreover, if at some point there is an effort to amend the Charter or to supplement the Charter with more detailed criteria for uses of force, greater convergence of views among international lawyers will be essential. Before turning to the relevance of international law to this particular topic, a word on terminology is in order. For purposes of this article, the term "self-defense" refers to the use of armed coercion by a state against another state in response to a prior use of armed coercion by the other state or by a non-state actor operating from that other state. "Anticipatory self-defense" refers to the use of armed coercion by a state to halt an immi- nent act of armed coercion by another state (or non-state actor operating from that other state). Thus, anticipatory self-defense contemplates a situ- ation where a state has not yet been the victim of such a coercive act, but perceives that such an act is about to occur in the immediate future (e.g., a foreign army is massing itself along the border in apparent preparation for invasion), and thus that potential victim state undertakes its own act of armed coercion to stave off the other's act. Such anticipatory self-defense 14. For a discussion of the different views of the legality of preemptive self- defense, see infra notes 19-68 and accompanying text. 15. For a discussion of methodological problems in assessing state practice, see infra 69-197 and accompanying text.  VILLANOVA LAW REVIEW [Vol. 50: p. 699 is, of course, "preemptive" in nature, but for purposes of this article, the term "preemptive" is not used to describe this form of self-defense. In- stead, "preemptive self-defense" is used to refer to the use of armed coer- cion by a state to prevent another state (or non-state actor) from pursuing a particular course of action that is not yet directly threatening, but which, if permitted to continue, could result at some future point in an act of armed coercion against the first state. Such preemptive self-defense is, of course, "anticipatory" and might even be called "preventive" self-defense, but for purposes of this article, such terminology is not used to describe this form of self-defense. II. WHY THE LAW MArERS Law has many different functions. In the context of international law relating to the use of military force, law is best seen as a means of predict- ing global reactions to a proposed use of such force. In this context, when a lawyer says that a proposed course of action would be unlawful, the law- yer is really saying that in the past, international society has decided that such an action is wrongful and, in similar circumstances, will likely do so again. Lawyers are trained to be good at making such predictions; they are fixated on the instruments of the past, be they treaties or statutes, which crystallize societal expectations, principles and beliefs into rules. Lawyers are also fixated on understanding and interpreting prior factual incidents in which those societal beliefs were tested and perhaps refined through courts and other decision-makers. Where there are gaps in our understanding of societal expectations, lawyers are clever at analytically filling those gaps and at seeking to extrapolate from what we know about societal beliefs to make situations of uncertainty more certain. And per- haps most important, lawyers appreciate that society deeply adheres to a normative system that will endure, and this in turn means that rules must operate over the long-term. They cannot be set aside when convenient to serve short-term interests, and they must be perceived as fair, legitimate, just and consistent with notions of equality, rather than arbitrary or irrational. A government policy-maker considering an act of preemptive self-de- fense will want to know if the act would be regarded as lawful because it helps predict attitudes within the policy-maker's own government, whether those attitudes emerge in executive, legislative or judicial settings. To the extent that the act is regarded as a violation of international law, the policy-maker is being alerted that the act would likely be viewed as wrongful. Knowing whether the act would be regarded as lawful will assist the policy-maker in predicting whether the general public would view the course of action as wrongful and whether foreign governments and their peoples, and possibly an international court, would react adversely to the 2005] THE DOCTRINE OF PREEMPTIVE SELF-DEFENSE course of action. 6 Even in the United States, a country where public atti- tudes toward international law vary considerably, government officials and legislators seek to convince the public why a particular course of action is 17 consistent with international law. Societal attitudes are important because if resistance is strong, the policy-maker may not be able to undertake a particular course of action (e.g., in the United States or the United Kingdom, an adverse legislative vote may make an executive resort to military force untenable). Of course, even in the face of strong resistance, the policy-maker might un- dertake the act if, for political or national security reasons, the policy- maker feels there is no choice. But the policy-maker may be interested in knowing whether, by conducting the action in a particular way, the policy- maker is more or less likely to run afoul of the law, for such knowledge may help the policy-maker achieve the objectives with the lowest level of societal approbation. That approbation may have serious consequences for the policy-maker, particularly over the long-term, in the form of erod- ing political support domestically and abroad for a government's policies, inability to secure military assistance from foreign partners in the form of troops, bases, transport and materials, and the inability to share with those partners or international organizations the economic costs of both the military action and any ensuing acts of peacekeeping or reconstruction. To date, however, lawyers have had difficulty in reaching a consensus on whether preemptive self-defense is lawful and, if so, whether certain criteria or conditions must be met. Because no authoritative decision- maker has spoken directly to the issue, international lawyers are left argu- ing the legality of preemptive self-defense based principally on their inter- pretation of the meaning of the U.N. Charter as enacted in 1945 and on state practice since that time. In doing so, lawyers have taken very differ- ent views regarding the legality of preemptive self-defense and, as dis- cussed in the next section, those views might be seen as falling into four 18 basic schools of thought. 16. The International Court of Justice (ICJ) has only occasionally received cases concerning transnational use of force, although currently the ICJ has before it a case arising from an alleged invasion of the Democratic Republic of Congo by Uganda in 1998. See International Court of Justice: Current Docket of the Court, at http://www.icj-cij.org/icjwww/idocket.htm (showing list of cases currently await- ing adjudication before ICJ) (last visited Mar. 15, 2005). 17. For a detailed discussion of the United States and the difficult problems that arise in its adherence to international norms on the use of force, see JOHN F. MURPHY, THE UNITED STATES AND THE RuLE OF LAw IN INTERNATIONAL AFFAIRS 142- 71 (2004) (discussing historical examples of American use of force and relating those examples to problems under international law); see a/soJohn E. Noyes, Ameri- can Hegemony, U.S. Political Leaders, and General InternationalLaw, 19 CONN. J. INT'L L. 293, 294 (2004) (arguing that international law "has some purchase on top U.S. officials"). 18. For a discussion of the foui different schools of thought regarding pre- emptive self-defense, see infra notes 19-68 and accompanying text.  VILLANOVA LAW REVIEW [Vol. 50: p. 699 III. FOUR SCHOOLS OF THOUGHT Contemporary attitudes of government lawyers or academics on the issue of preemptive self-defense tend to fall into four different schools of thought. Describing these views as "schools" may be overly formal; such lawyers probably do not see themselves as part of a "school" in the sense of having an elaborate framework upon which their views are constructed. Moreover, international lawyers within a single school may differ in certain respects, and the views of some international lawyers may be seen as strad- dling these schools of thought or as moving from one school to another over time.' 9 Nevertheless, the different schools identified here rest upon broad conceptions as to the status of international law on this topic, and probing at those different conceptions may help in promoting conver- gence among them. A. The Strict-ConstructionistSchool The strict constructionist school begins with the proposition that Arti- cle 2(4) of the U.N. Charter contains a broad prohibition on the use of force. 2 0 The term "use of force" in Article 2(4)-as opposed to the term "war," as used in the Kellogg-Briand Pact of 1928 2 1-reflected a desire to prohibit transnational armed conflicts generally, not just conflicts arising from a formal state of war. As such, this school emphasizes that Article 2(4) is best viewed as outlawing any transboundary use of military force, including force justified by reference to the various doctrines developed in the pre-Charter era of forcible self-help, reprisal, protection of nationals and humanitarian intervention. 22 To the extent that there is a need to 19. For example, Thomas Franck at one time lamented the apparent death of Article 2(4), thus placing him in the "Charter-is-dead" school. See generally Thomas M. Franck, Who Killed Article 2(4)? or: Changing Norns Governing the Use of Force by States, 64 Am. J. INT'L L. 809 (1970) (discussing demise of Article 2(4)). For a discussion of the "Charter-is-dead" school, see infra notes 67-68 and accompanying text. After the U.S. intervention in Iraq, Franck asserted that Article 2(4) "has died again," but then used arguments suggesting that he really falls into the "imminent threat" school and rejects the reasoning of the "qualitative threat" school. See Thomas M. Franck, What Happens Now? The United Nations After Iraq, 97 Am. J. INT'L L. 607, 610, 619 (2003) [hereinafter What Happens Now?] (asserting that doctrine of preemptive self-defense as articulated by Bush administration "would stand the Charter on its head"). For a discussion of the "imminent threat" and the "qualita- tive threat" schools, see infra notes 37-66 and accompanying text. 20. See U.N. CHARTER art. 2, para. 4 ("All Members shall refrain in their inter- national relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."). 21. See International Treaty Providing for the Renunciation of War, Aug. 27, 1928, 46 Stat. 2343, 2345-46, 94 L.N.T.S. 57 ("The High Contracting Parties sol- emnly declare in the names of their respective peoples that they condemn re- course to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another."). 22. There are other norms of international law prohibiting the use of force, such as norms embedded in regional charters. See, e.g., Charter of the Organiza- 2005] THE DOCTRINE OF PREEMPTIVE SELF-DEFENSE 707 refer to the negotiating history of the U.N. Charter, that history indicates that Article 2(4) was intended to be a comprehensive prohibition on the 23 use of force by one state against the other. The strict constructionist school acknowledges that the U.N. Charter provides two express exceptions to this broad prohibition. First, the Se- curity Council may authorize a use of force under Chapter VII of the Char- ter, 24 which would require an affirmative vote of nine of its fifteen Members and the concurrence or abstention of its five permanent Mem- bers (China, France, Russia, United Kingdom and United States). Some strict constructionists might challenge the authority of the Security Coun- cil to authorize Member States, especially if operating under national mili- tary command, to engage in preemptive self-defense, but the debate over preemptive self-defense to date has not related to potential Security Coun- cil authorization. tion of African Unity, done May 25, 1963, preamble, arts. II-III, 479 U.N.T.S. 39, available at http://www.africa-union.org/home/Welcome.htm (asserting that key principle of African Union was respect for sovereignty of each state and non-inter- ference in their affairs). The OAU Charter was recently superseded by Charter of the African Union. In the Nicaragua case, the ICJ identified additional, related norms under customary international law in the form of a prohibition on the viola- tion of a state's sovereignty and a prohibition on intervention in the affairs of another state. See Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 106-09, 111, 212 (June 27) (discussing non-intervention principle in customary international law); IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 26-49 (Oxford Univ. Press 1963) (looking at justifications for historical ex- amples of nations resorting to war and examining customary reasons for using force under international law); HENRY WHEATON, ELEMENTS OF INTERNATIONAL LAw § 290 (A.C. Boyd ed., Stevens & Sons 1889) (describing circumstances under which it is acceptable for states to resort to force for redress, including embargoes and taking forcible possession of "things in controversy"). 23. See BROWNLIE, supra note 22, at 265-68 (arguing that Article 2(4) cannot be given meaning that allows nations to use force so long as nations simply state that it has no intention of infringing on other state's territorial integrity; provision must be read more broadly than that); 1 THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 123-24 (Bruno Simma ed., Oxford Univ. Press 2d ed. 1994) [herein- after CHARTER COMMENTARY] (arguing that any interpretation of Article 2(4) that permits states to use force is incompatible with purpose of provision and is there- fore untenable); LA CHARTE DES NATIONS UNIES: COMMENTAIRE ARTICLE PAR ARTI- CLE 125 (J. Cot & A. Pellet eds., 2d ed. 1991); LELAND GOODRICH & EDVARD HAMBRO, CHARTER OF THE UNITED NATIONS: COMMENTARY AND DOCUMENTS 44-45 (World Peace Foundation, 3d ed. 1969) (asserting that Article 2(4) was designed to prevent armed conflict, leaving very few exceptions to that goal); OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE 112-13 (1991) (discuss- ing interpretations of Article 2(4) and noting that its words qualify as all-inclusive prohibition against force but that extent of this prohibition is not clear from tex- tual analysis alone); C. Humphrey Waldock, The Regulation of the Use of Force by Individual States in InternationalLaw, 81 R.C.A.D.I. 451, 493 (1952-1I). 24. See generally EmIKA DE WET, THE CHAPTER VII POWERS OF THE UNITED NA- TIONS SECURITY COUNCIL 133-49 (2004) (discussing power of Security Council under Chapter VII and "the threshold that triggers Chapter VII action"); see also U.N. CHARTER, art. 39-51, (setting forth U.N. procedures for handling threats to peace, breaches of peace and acts of aggression, including Security Council au- thorization of use of force against states that aggressively threaten peace).  VILLANOVA LAW REVIEW [Vol. [. 50: p. p 699 Second, states may use force in self-defense pursuant to Article 51 of the Charter. Article 51 states that the Charter does not impair the "inher- ent right" of self-defense "if an armed attack occurs" against a U.N. Mem- ber.2 5 In considering the legality of preemptive self-defense, the strict constructionist school hews closely to the language of Article 51. Because Article 51 only contemplates an act of self-defense "if an armed attack oc- curs," the strict constructionist maintains that neither anticipatory self-de- fense nor preemptive self-defense can be lawful because such forms of self- 26 defense envisage action prior to an armed attack actually occurring. Thus, Ian Brownlie, writing in 1963, found that "the view that Article 51 does not permit anticipatory action is correct and... arguments to the contrary are either unconvincing or based on inconclusive pieces of evi- dence." 2 7 For Philip Jessup, "[u]nder the Charter, alarming military prep- arations by a neighboring state would justify a resort to the Security Council, but would not justify resort to anticipatory force by the state which believed itself threatened." 28 For Louis Henkin, allowing anticipa- tory action "would replace a clear standard with a vague, self-serving one, and open a loophole large enough to empty the rule." 29 Likewise, Yoram Dinstein, writing more recently, finds: When a country feels menaced by the threat of an armed attack, all that it is free to do-in keeping with the Charter-is make the necessary military preparations for repulsing the hostile action 25. U.N. CHARTER, art. 51. In its entirety, the article reads: Nothing in the present Charter shall impair the inherent right of individ- ual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immedi- ately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. Id. 26. For a detailed presentation of strict constructionist views, see infra notes 27-36 and accompanying text. 27. BROWNLIE, supra note 22, at 278; see HANS KELSEN, THE LAw OF THE UNITED NATIONS: A CRITICAL ANALYSIS OF ITS FUNDAMENTAL PROBLEMS 797-98 (Stevens & Sons 1951) (arguing that Article 51's allowance of use of force in self-defense ap- plies only when nation faces actual armed attack, and therefore, no "imminent" threat of attack can justify armed aggression under Article 51); 2 LASSA OPPENHEIM, INTERNATIONAL LAw 156 (H. Lauterpacht ed., Longmans, Green & Co. 7th ed. 1952) (noting that U.N. Charter "confines the right of armed self-defence to the case of an armed attack as distinguished from anticipated attack or from various forms of unfriendly conduct falling short of armed attack"); Hans Wehberg, L'Interdiction du Recours d la Force: Le Principe et les Problmes qui se Posent, 78 R.C.A.D.I. 1, 81 (1951) (finding that self-defense under Article 51 is impermissible "en cas de simple menace d'agression"). 28. PHILIPJESSUP, A MODERN LAw OF NATIONS 166 (Archon Books 1968). 29. Louis HENKIN, INTERNATIONAL LAW: POLITICS, VALUES AND FUNCTIONS 156 (1990). 2005] THE DOCTRINE OF PREEMPTIVE SELF-DEFENSE should it materialize, as well as bring the matter forthwith to the attention of the Security Council.3 ° Moreover, the strict constructionist would note that in using the lan- guage "armed attack" rather than "use of force," Article 51 is limiting the use of self-defense to those situations where the victim state is exposed to a large-scale use of force, such as an invasion or a bombardment or other "most grave forms of the use of force." 3' This form of limitation does not 30. YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 167 (Cambridge Univ. Press 3d ed. 2001); see CHARTER COMMENTARY, supra note 23, at 676 ("An anticipatory right of self-defence would be contrary to the wording of Art. 51 ('if an armed attack occurs').... ); id. n.138 (citing authorities disfavoring anticipa- tory self-defense or preemptive self-defense); REPORT OF THE SECRETARY-GENERAL'S HIGH LEVEL PANEL ON THREATS, CHALLENGES, AND CHANGE, A MORE SECURE WORLD: OUR SHARED RESPONSIBILITY 63 (2004) ("fI]f there are good arguments for preventive military action, with good evidence to support them, they should be put to the Security Council, which can authorize such action if it chooses to."). At the same time, Dinstein would allow for self-defense in a situation where an attacker "has committed itself to an armed attack in an ostensibly irrevocable way" even if the attacker has not crossed the frontier, although he is unclear how one would judge that such an attack is irrevocably underway. See DINSTEIN, supra, at 172 (argu- ing for legitimacy of "interceptive" self-defense under Art. 51 with belief that it would be preposterous to force nations to endure potentially crippling first strike simply to preserve their absolute right to self-defense). 31. See Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 101 (June 27) ("[I]t will be necessary to distinguish the most grave forms of the use of force (those constituting an armed attack) from other less grave forms."); see also Concerning Oil Platforms (Islamic Republic of Iran v. U.S.), 2003 I.CJ. 161, 187-88 (Nov. 6) (ruling that in order for nation to attack another nation, it must show that there was armed attack for which other nation is responsible). As noted previ- ously, the ICJ in Military and ParamilitaryActivities in and Against Nicaraguasaid that it was not expressing a view with respect to the right to defend against an immi- nent attack. For a discussion of Military and ParamilitaryActivities in and Against Nicaragua,see supra notes 12-13 and accompanying text. The ICJ, however, confirmed that states do not have a right of individual or collective armed response to acts that do not constitute an "armed attack." See Military and ParamilitaryActivities in and Against Nicaragua,1986 I.CJ. at 103, 110 (noting that for one state to legally use force against another because of other's own act, that act in question must be armed attack). In doing so, the ICJ did not provide a complete definition of what constituted an "armed attack." On the one hand, the ICJ implied that a "mere frontier incident" does not constitute an "armed attack" and stated that providing assistance to rebels in the target state in the form of weapons or logistical or other support did not constitute an "armed attack." See id. at 103-04. On the other hand, the ICJ considered an "armed attack" as occurring when regular armed forces cross an international border, or when a state sends armed bands, groups, irregulars or mercenaries that carry out acts of armed force against another state of sufficient gravity so as to equate with an actual armed attack by regular forces. See id. at 103 (describing actions by state that would constitute armed attack according to ICJ); see also CHARTER COMMENTARY, supra note 23, at 670 (noting that "armed attacks" must be "military actions [that] are on a certain scale and have a major effect, and are thus not to be considered mere frontier incidents"); DINSTEIN, supra note 30, at 173-74 ("There is no doubt that, for an illegal use of force to acquire the dimensions of an armed attack, a minimal threshold has to be reached.... In the absence of an armed attack, self- defense is not an option available to the victim State.. ").  VILLANOVA LAW REVIEW [Vol. 50: p. 699 speak directly to the issue of preemptive self-defense, but the uncertainty as to whether a future threat would actually rise to a level of being an "armed attack" may also suggest that preemptive self-defense was disfa- vored under Article 51.32 Adherents to this school typically accept that state practice subse- quent to the enactment of the U.N. Charter is relevant,33 although they (and many international lawyers) are often not clear whether such prac- tice is relevant for the purpose of: (1) interpreting the meaning of the Charter, because conduct by the parties to the Charter demonstrate the parties' interpretation of its meaning; or (2) establishing a new norm of customary international law that supersedes the obligation of the Charter. In any event, the strict constructionist's review of that practice finds that invocations of a right of anticipatory self-defense (let alone a right of pre- emptive self-defense) are rare and are resisted by other states. Thus, Louis Henkin, writing in 1979, asserted that "neither the failure of the Security Council, nor the Cold War, nor the birth of many new nations, nor the development of terrible weapons, suggests that the Charter should now be read to authorize unilateral force even if an armed attack has not oc- curred. ' 34 Christine Gray, writing in 2000, concluded: States prefer to argue for an extended interpretation of armed attack and to avoid the fundamental doctrinal debate. The clear trend in state practice is to try to bring the action within Article 51 and to claim the existence of an armed attack rather than to expressly argue for a wider right under customary international 35 law. 32. For a discussion of the meaning of "armed attack," see supra note 31 and accompanying text. 33. See, e.g., Louis Henkin, The Reports of the Death of Article 2(4) Are Greatly Exaggerated, 65 AM.J. INT'L L. 544, 545 (1971) (looking to Korean War, President Kennedy's response to Cuban Missile Crisis in 1962 and War in Vietnam as exam- ples of state action after ratification of U.N. Charter). 34. Louis HENKIN, How NATIONS BEHAVE: LAW AND FOREIGN POLICY 141 (2d ed. 1979) [hereinafter How NATIONS BEHAVE]; see ANTONIO CASSESE, INTERNA- TIONAL LAW 309 (2001) [hereinafter CASSESE, INTERNATIONAL LAW] ("If one under- takes a perusal of State practice...it becomes apparent that such practice does not evince agreement among States regarding the interpretation or the applica- tion of Article 51 with regard to anticipatory self-defence."); HENKIN, supra note 29, at 156 ("The permissive interpretation of Article 51 has found little favour with Governments."). But see ANTONIO CASSESE, INTERNATIONAL LAW IN A DIVIDED WORLD 230-36 (Clarendon Press 1986) (arguing that consensus is growing for al- lowing anticipatory self-defense). 35. CHRISTINE GRAY, INTERNATIONAL LAW AND THE USE OF FORCE 115 (Mal- colm Evans & Phoebe Okowa eds., 2000). By 2004, Gray was less certain about this "trend," and modified her treatise to speak of a clear trend before the terrorist attacks of September 11. See CHRISTINE GRAY,INTERNATIONAL LAW AND THE USE OF FORCE 133 (2d ed. 2004) [hereinafter GRAY 2d ed.] ("The clear trend in state prac- tice before 9/11 was to try to bring the action within Article 51 and to claim the existence of an armed attack rather than to argue expressly for a wider right under customary international law."). 2005] THE DOCTRINE OF PREEMPTIVE SELF-DEFENSE When pressed, some strict constructionists accept that anticipatory or preemptive action, while illegal, in some circumstances "may be justified on moral and political grounds and the community will eventually con- 36 done [it] or mete out lenient condemnation." B. The Imminent Threat School Adherents to the "imminent threat" school accept that the language of Article 51 speaks of self-defense in response to an armed attack, but they employ three lines of argument to advance a norm favoring a right of 37 anticipatory self-defense, but not preemptive self-defense. First, they note that Article 51 speaks of the Charter not impairing an "inherent right" of self-defense, meaning that Article 51 does not create a right of self-defense but instead preserves a right that pre-existed the Char- ter. -3 As such, adherents to this school note that the customary interna- tional law of self-defense prior to 1945 recognized the ability of a state to defend against not just an existing attack, but also against an imminent threat of attack.3 9 The principal precedent relied upon is the Carolinein- cident, an 1836 clash between the United States and the United Kingdom in which U.S. Secretary of State Daniel Webster stated that self-defense is confined to "cases in which the 'necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.' -40 For adherents to the imminent threat school, this inherent fight to defend against an imminent threat was preserved in Article 51.41 The lan- 36. CASSESE, INTERNATIONAL LAW, supra note 34, at 310-11. 37. For a listing of authorities falling into this school, see CHARTER COMMEN- TARY, supra note 23, at 666 n.28. 38. See D.W. BowETr, SELF-DEFENCE IN INTERNATIONAL LAw 187 (Manchester Univ. Press 1959) (stating reference to "inherent right" in Article 51 indicates "an existing right, independent of the Charter and not the subject of an express grant"). 39. For a pre-1945, and thus pre-U.N. Charter, example of defense against an imminent threat, see infra note 40 and accompanying text. 40. 2 JOHN BASSETT MOORE, A DIGEST OF INTERNATIONAL LAw 412 (1906) (quoting Letter from Daniel Webster to Lord Ashburton (Aug. 6, 1842)). The incident involved an assertion by the United Kingdom that its attack in U.S. terri- tory on the schooner Caroline was permissible self-defense because the schooner had previously been used (and might be used again) to ferry supplies across the border to Canada to rebels who were fighting U.K. rule in Canada. See id. at 409- 12; see also DANIEL WEBSTER, THE WORKS OF DANIEL WEBSTER 292-303 (1851). Web- ster rejected the U.K. assertion, observing that at the time of the attack, the Caro- line was not engaged in or being prepared for such transport. In support of his views, Webster cited to eminent scholars of international law, including Grotius, Pufendorf and Vattel. For a view that anticipatory self-defense did not exist even under pre-Charter customary international law, see Roberto Ago, Addendum to Eighth Report on State Responsibility, (1980) 11(1) Y.B. INT'L L. COMM'N. 13, at 65-67, U.N. Doc. A/CN.4/333. 41. See, e.g., BowETT, supra note 38, at 188-89 (arguing that Article 51 defi- nitely allows right to self-defense and that this right has always been presumed to be anticipatory); Jutta Brunnre & Stephen J. Toope, The Use of Force: International  VILLANOVA LAW REVIEW [Vol. 50: p. 699 guage "if an armed attack occurs" does not impose a condition on the exercise of this inherent right; it is simply indicating the general type of right that is being preserved.4 2 Indeed, this school notes, the French text of the U.N. Charter (which is equally authoritative with the English text), preserved an inherent right of self-defense "dans un cas ofi un Membre des Nations Unies est l'object d'une agression arm&" ("in a situation where a Member of the United Nations is the object of an armed attack"), a formulation that reads much less restrictively than its English counter- part. 43 Although the strict constructionist sees such an interpretation as writing the "armed attack" language out of Article 51, the imminent threat theorist finds absurdity in believing that the drafters bent over backwards in Article 51 so as not to impair an "inherent right" only to then signifi- 4 4 cantly restrict that right. A second line of argument employed by this school is to expand the meaning of the term "armed attack." Although a narrow interpretation of armed attack might envisage only a use of force that has been consum- mated, a broader interpretation would view an "armed attack" as including an attack that is imminent and unavoidable even if not yet consummated. Thus, when a state begins massing an army in an attack configuration along the border of another state, the first state has commenced the initial step of a multi-step armed attack, and the second state may respond in self- defense. Here, too, the argument is concerned with the temporal nature of the threat; it must be closely associated in time and space with the ex- pected unleashing of force. Although Louis Henkin is typically associated with the strict constructionist school, he accepts that if there were clear evidence of an attack so imminent that there was no time for political action to prevent it, the only meaningful defense for the potential victim might indeed be the preemptive attack and-it may be argued-the scheme of Article 2(4) to- gether with Article 51 was not intended to bar such attack. But this argument would claim a small and special exception for the special case of the surprise nuclear attack.... 45 Law After Iraq, 53 INT'L & COMP. L.Q. 785, 792 (2004) (asserting that Article 51 permits anticipatory self-defense, as matter of customary law, so long as it is pro- portionate response to threat). 42. See Brunn~e & Toope, supra note 41, at 792 (claiming that even though Article 51 specifically refers to armed attack, there is no impairment of right of anticipatory self-defense when attack is imminent). 43. SeeJ.L. BRIERLY, THE LAw OF NATIONS 419 (H. Waldock ed., 6th ed. 1963) (analyzing other interpretations of French text and finding room for uncertainty in interpretation). 44. For a further discussion of the inherent right to self-defense as included in Article 51 of the U.N. Charter, see supra notes 41-43 and accompanying text. 45. How NATIONS BEHAVE, supra note 34, at 143-44; seeJULIUS STONE, AGGRES- SION AND WORLD ORDER 99 (1958). The author posits: Suppose military intelligence at the Pentagon received indisputable evi- dence that a hostile State was poised to launch intercontinental ballistic 2005] THE DOCTRINE OF PREEMPTIVE SELF-DEFENSE Third, this school focuses on state practice since 1945, which purport- edly demonstrates an acceptance of self-defense by states when an attack is imminent and unavoidable. In this regard, repeated references are made to certain key incidents, such as: the 1962 "quarantine" of Cuba by the United States; the 1967 Arab-Israeli war; the 1981 Israeli attack against an 46 Iraqi nuclear facility; and the 1986 U.S. bombing raids against Libya. For each incident, according to this school, a state may be seen undertak- 47 ing an action purportedly in self-defense that precedes an armed attack. Adherents to the imminent threat school conclude that, by parsing this practice, states may be seen either accepting or tolerating the use of mili- tary force by a state against another state when faced with an imminent armed attack. 48 Thus, Thomas Franck writes: States seem willing to accept strong evidence of the imminence of an overpowering attack as tantamount to the attack itself, al- lowing a demonstrably threatened state to respond under Article 51 as if the attack had already occurred, or at least to treat such circumstances, when demonstrated, as mitigating the system's 49 judgment of the threatened state's pre-emptive response. At the same time, adherents to this school are unwilling to expand the meaning of Article 51 beyond the concept of responding to an immi- nent armed attack. 50 For them, accepting the legality of preemptive self- missiles, at a fixed zero hour only 24 hours ahead, against New York, Bos- ton and Washington, would it be an aggressor under the Charter if it refused to wait until those cities had received the missiles before it re- acted by the use of force? Id. 46. For a discussion of these incidents, see Christopher Greenwood, Interna- tional Law and the United States' Air Operation Against Libya, 89 W. VA. L. REv. 933 (1986) (discussing situation surrounding air attack, domestic and world reac- tion to air strike, claim by United States that act was justified under article 51 of U.N. Charter and other justifications for attack); William V. O'Brien, Reprisals, Deterrence and Self-Defense in Counterterror Operations, 30 VA. J. INT'L L. 421, 464-65 (1990) (summarizing position of United States and its allies versus position of many Third World and Communist States). 47. For a further discussion of these attacks and the international legal issues implicated by them, see supra note 46 and accompanying text. 48. For a discussion of the views of one adherent to the imminent threat school regarding the acceptability of the use of force in the face of an imminent armed attack, see infra note 49 and accompanying text. 49. THOMAS M. FRANCK, RECOURSE To FORCE: STATE ACTION AGAINST THREATS AND ARMED ATTACKS 107 (2002) [hereinafter RECOURSE TO FORCE]; What Happens Now?, supra note 19, at 619 ("The principle of anticipatory self-defense has been known to international law for almost two centuries and has gained a certain credi- bility, despite the restrictive terms of Charter Article 51. This credibility is aug- mented both by contemporary state practice and by deduction from the logic of modern weaponry."). 50. See What Happens Now? supra note 19, at 619 (finding Bush administra- tion's doctrine of preemptive self-defense to be expanding exponentially range of permissible action); Georg Nolte, Preventive Use of Force and PreventiveKillings: Moves into a Different Legal Order, in 5 THEORETICAL INQUIRIES IN L. 111 (2004) (arguing 714 VILLANOVA LAW REVIEW [Vol. 50: p. 699 defense would place the law on a very slippery slope, taking us back into the pre-Charter world in which nations resorted to warfare for 'Just" causes. 5 1 Without the immediacy of an attack, states must try to predict a future threat based on intelligence that will always be tentative and often inaccurate. 5 2 Further, in rejecting the concept of preemptive self-defense, the imminent threat school relies in part on the customary international law doctrine that force must only be used in accordance with principles of necessity and proportionality. 53 In considering whether force is "neces- sary," international lawyers ask certain core questions, such as whether the 54 act undertaken seeks solely to halt or repel the armed attack, and that Bush doctrine and Israeli policy of "targeted killing" risk transforming indis- pensable foundations of international law on use of force and human rights). 51. See Michael Bothe, Terrorism and the Legality of Pre-emptive Force, 14 EUR. J. INT'L L. 227, 238 (2003) (asserting that creating rule that did not provide "worka- ble definition of permissible force might end the abolition of the prohibition of the use of force altogether"); MICHAEL WALZER, JUST AND UNJUST WARS 74-75 (ana- lyzing Webster's formulation as supporting action only against imminent threat). 52. The failure of the U.S. intelligence community to assess accurately Iraq's WMD capability is described in SENATE SELECT COMMITTEE ON INTELLIGENCE, RE- PORT ON THE U.S. INTELLIGENCE COMMUNITY'S PREWAR INTELLIGENCE ASSESSMENTS ON IRAQ (July 7, 2004), availableat http://intelligence.senate.gov/iraqreport2.pdf (analyzing pre-war intelligence regarding Iraq's WMD programs and Iraq's con- nection to terrorism). For a discussion of how intelligence can be manipulated, see generally JAMES BAMFORD, A PRETEXT FOR WAR: 9/11, IRAQ AND THE ABUSE OF AMERICA'S INTELLIGENCE AGENCIES (2004). 53. The ICJ has stated: The submission of the exercise of the right of self-defence to the condi- tions of necessity and proportionality is a rule of customary international law. As the Court stated in the case concerning Military and Paramilitary Activities in and against Nicaragua(Nicaragua v. United States): "There is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law." (I.C.J. Reports 1986, p. 94, para. 176). This dual condition applies equally to Article 51 of the Charter, whatever the means of force employed. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.CJ. 226, 245 (July 8) [hereinafter Nuclear Weapons Advisory Opinion]; see Concerning Oil Platforms (Islamic Republic of Iran v. U.S.), 2003 I.CJ. 161, 187-88 (Nov. 6) ("The United States must also show that its actions were necessary and propor- tional to the armed attack made on it."). Discussions of necessity and proportion- ality also often refer to the Caroline incident since Secretary of State Daniel Webster analyzed those elements as cornerstones of the legal doctrine of self-de- fense. See 29 BRIT. & FOREIGN STATE PAPERS 1129, 1138 (1937). 54. See, e.g., GRAY 2d ed., supra note 35, at 121 (noting that necessity and pro- portionality are both required aspects of actions taken in self-defense and that such action is necessary and proportionate only if it is taken to repel or stop attack, and not for punitive or retaliatory measures). There is a link between the custom- ary rules on necessity and proportionality between the jus ad bellum and the jus in bello. See generally Christopher Greenwood, The Relationship Between Jus Ad Bellum andJus in Bello, 9 REV. INT'L STUD. 221 (1983). Thus, the Lieber Code's definition of necessity states: "Military necessity, as understood by modem civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of war, and which are lawful according to the modern law and usages of war." Francis Lieber, Instructionsfor the Government of the Armies of the United States in the 2005] THE DOCTRINE OF PREEMPTIVE SELF-DEFENSE whether there were peaceful alternatives available, such as pursuing diplo- matic efforts. 55 In considering whether an act of self-defense is propor- tional, international lawyers consider the scale of the defensive force in relation to the act against which it is directed.5 6 Under either principle, the imminent threat school stresses that a movement from anticipatory self-defense to preemptive self-defense presents troubling and insur- mountable conflicts. 57 It is simply not possible to gauge with any degree of confidence whether an act of preemptive self-defense today is necessary to deal with a threat that may not materialize for months or years. Simi- larly, one cannot gauge whether the act of preemptive self-defense today is proportionate to an inchoate future threat. 58 As such, preemptive self- defense cannot be regarded as lawful. C. The Qualitative Threat School Adherents to the qualitative threat school agree with the imminent threat school that a state need not await an actual armed attack, but be- lieve that the latter school's requirement of an imminent threat is mis- placed. For the qualitative threat school, the world has changed significantly since 1945, particularly with the advent of WMD and the rise of global terrorism. Adhering to the strictures of the Carolinestandard in a contemporary world is a recipe for paralysis in the face of grave threats.59 Field, in DIETRICH SCHINDLER &JIRi ToMAN, THE LAWS OF ARMED CONFLICTS: A CoL- LECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS 3, 6 (3d ed. 1988). 55. See, e.g., Concerning Oil Platforms, 2003 I.C.J. 161, 198-99 ("In this connec- tion, the Court notes that there is no evidence that the United States complained to Iran of the military activities of the platforms.... which does not suggest that the targeting of the platforms was seen as a necessary act."). 56. SeeJudith Gail Gardam, Proportionalityand Force in InternationalLaw, 87 AM. J. INT'L L. 391, 391 (1993). The author states: The resort to force... is limited by the customary law requirement that it be proportionate to the unlawful aggression that gave rise to the right. In the law of armed conflict, the notion of proportionality is based on the fundamental principle that belligerents do not enjoy an unlimited choice of means to inflict damage on the enemy. Id. Thus, in the Oil Platforms case, the ICJ decided that even if Iran had laid a mine that severely damaged a U.S. warship, responding to that mining with a mili- tary operation that destroyed two Iranian frigates and a number of other Iranian naval vessels and aircraft, could not be regarded as proportionate self-defense. See Concerning Oil Platforms, 2003 I.C.J. at 198-99 ("As a response to the mining.... of a single United States warship.., neither 'Operation Praying Mantis' as a whole, nor even that part of it that destroyed the [platforms], can be regarded, in the circum- stances of this case, as a proportionate use of force in self defence."). 57. For a further discussion of the beliefs and arguments of the imminent threat school, see supra notes 37-58 and accompanying text. 58. See Mary Ellen O'Connell, The Myth of Preemptive Self-Defense 19-20, Aug. 2002 (ASIL Task Force on Terrorism), available at http://www.asil.org/taskforce/ oconnell.pdf (pointing out that only by taking over another country wholly and eliminating its government can one country be sure that another will not attack). 59. See MvREs S. McDoucAL & FLORENTINO P. FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER 217 (1961) (examining requirements of self-defense: neces- 716 VILLANOVA LAW REVIEW [Vol. 50: p. 699 For this school, President John Kennedy had it right when he identified the nuclear age as one in which the actual firing of a weapon can no 60 longer be the touchstone for determining whether a nation is in peril. Rather than emphasize just the temporal nature of a future attack, this school looks to other qualitative factors, 6 1 such as the probability that an attack will occur at some future point, the availability of non-forcible means for addressing the situation and the magnitude of harm that the 62 attack would inflict. Where those qualitative factors indicate that there is a high probability of a future, highly destructive attack, a state may act as necessary and proportionate in preemptive self-defense. According to this school, accepting this approach to self-defense would result in a greater, not lesser likelihood of maintaining world public order because it would serve to deter state and non-state actors from embarking on programs 63 likely to lead to armed conflict. sity and proportionality). Abraham Sofaer argues that the Carolinestandard of re- sponding against a threat that is "'instant, overwhelming, and leaving no choice of means... '" should be limited only to situations where "the state from which at- tacks are anticipated is not responsible for the threat, and is both able and willing to suppress them." Abraham D. Sofaer, On the Necessity of Pre-emption, 14 EUR. J. INT'L L. 209, 219-20 (2003). In all other situations, Sofaer believes that anticipa- tory or preemptive self-defense is simply governed by the principles of necessity and proportionality. See id. at 320 ("[T]he standard generally applicable to pre- emptive self-defence is, rather, the same general rule applicable to all uses of force: necessity... together with the requirement that any action be proportionate to the threat addressed."). 60. In 1962 President Kennedy stated: We no longer live in a world where only the actual firing of weapons represents a sufficient challenge to a nation's security to constitute maxi- mum peril. Nuclear weapons are so destructive and ballistic missiles are so swift, that any substantially increased possibility of their use or any sud- den change in their deployment may well be regarded as a definite threat to peace. President John F. Kennedy, Radio and Television Report to the American People on the Soviet Arms Buildup in Cuba, 485 PUB. PAPERS 806, 807 (Oct. 22, 1962). 61. See, e.g., Sofaer, supranote 59, at 220 (finding necessity to act and propor- tionality to be proper standard, with several factors determining necessity, includ- ing: nature and magnitude of threat, likelihood threat will be realized, availability and exhaustion of other alternatives and whether use of force is consistent with U.N. Charter and other international law);John Yoo, InternalionalLaw and the War in Iraq, 97 AM. J. INT'L L. 563, 572, 574 (2003) (examining Caroline test in light of WMD and finding that current test has become significantly more nuanced than Webster's Caroline definition). 62. Most international lawyers do not focus on the magnitude of harm to the victim, but in the Nuclear Weapons Advisory Opinion, supra note 53, at 262-63, 266, the ICJ accepted that fundamental rules of international law change "in an extreme circumstance of self-defence, in which the very survival of a State would be at stake." See id. at 262-63. 63. See W. Michael Reisman, Assessing Claims to Revise the Law of War, 97 AM. J. IN'r'L L. 82 passim (2003) (suggesting that such doctrine may contribute to world public order if subjected to appropriate criteria). 20051 THE DOCTRINE OF PREEMPTIVE SELF-DEFENSE For this school, state practice since 1945-such as the U.S. "quaran- tine" of Cuba, the 1989 U.S. invasion of Panama, 64 and the U.S. attacks against Libya in 1986, Iraq in 1993,65 and Sudan and Afghanistan in 1998 66 -supports the acceptance of preemptive self-defense because there was no imminent attack against which the state in those incidents was de- fending. Although many states opposed such uses of force (and most inci- dents involved deployment of force by just a single actor, the United States), this school nevertheless sees those incidents as evincing a degree of global tolerance of preemptive self-defense in appropriate circumstances. The qualitative threat school sees its views as simply extending the position expressed by the imminent threat school, so as to take account of the full spectrum of potential armed attacks. If one were to try to re- present graphically the views of the qualitative threat school, one might develop something along the lines of Figure 1. The three-dimensional graph suggests that there are three principal factors of relevance in deter- mining the legality of an act of preemptive self-defense: (1) the immi- nence of an attack (the higher it is, preemptive force is more acceptable); (2) the level of coercive force used in response (the lower it is, preemptive force is more acceptable); and (3) the threat to the existence of the re- sponding state (the higher it is, preemptive force is more acceptable). The graph suggests one set of placements for various incidents, but quali- tative threat theorists may well choose to place such incidents differently, finding that the 1981 and 2003 Iraq incidents and 1986 Libya incident fall on the "lawful" side of the graph. D. The "Charter-Is-Dead"School Finally, there is a school of thought that sees the rules on the use of force embedded in the Charter as completely devoid of any legally signifi- cant normative value. In 1945 these rules might have had some cachet, but the practice of states over the course of the past sixty years can only lead to a conclusion that states do not adhere to the U.N. Charter in any legally meaningful way and, therefore, the rules have fallen into desue- tude. States may say that the rules exist and that they are adhering to them, 67 but this is simply empty rhetoric, a public relations ploy designed 64. For background on the invasion of Panama, see Jennifer Miller, Interna- tional Intervention: The United States Invasion of Panama, 31 HARV. INT'L L.J. 633 (1990). 65. For background on the 1993 attack on Iraq, see Alan D. Surchin, Terror and the Law: The Unilateral Use of Force and theJune 1993 Bombing of Baghdad, 5 DUKEJ. COMP. & INT'L L. 457 (1995). 66. For background on the attacks in Sudan and Afghanistan, see Jules Lobel, The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan, 24 YALEJ. INT'L L. 537 (1999); Ruth Wedgwood, Responding to Ter- rorism: The Strikes Against bin Laden, 24 YALEJ. INT'L L. 559 (1999). 67. See, e.g., Kim R. Holmes, U.S. Dep't of State, Assistant Sec'y for Int'l Org. Affairs, The Future of U.S.-UN Relations, Remarks at the XXI German American  VILLANOVA LAW REVIEW [Vol. 50: p. 699 FIGuRE 1: THE LEGALr' OF PREEMPTIVE SELF-DEFENSE FOR THE QUALITATIVE THREAT SCHOOL Iraq(2003) ii LA U.S.bombing of Libya (1986) - a L Israelbombingof Iraq(1981) Ea.=1- LOW (preemptive self-defense) Imminence of an Attack 0 Generally Regarded as Lawful F] Generally Regarded as Unlawful to mask the reality of states simply pursuing their political interests. Michael Glennon writes: The Charter's use of force rules have been widely and regularly disregarded. Since 1945, two-thirds of the members of the United Nations-126 states out of 189-have fought 291 inter- state conflicts in which over 22 million people have been killed. In every one of those conflicts at least one belligerent necessarily violated the Charter. In most of those conflicts, most of the bel- ligerents claim to act in self-defense. States' earlier intent, ex- Conference (June 13, 2003), at http://www.state.gov/p/io/rls/rm/2003/ 21913.htm. The speaker remarked: As contentious as the disagreement over Iraq was, it should not be over- emphasized. Neither the United States nor the U.K. ever asserted a right to operate outside their obligations under international law. Neither took a position that called into question the existing international legal regime related to the use of force. Each country had lawyers examine relevant [U.N. Security Council] resolutions and clarify the legal basis for use of force before the decision to proceed was made. 2005] THE DOCTRINE OF PREEMPTIVE SELF-DEFENSE 719 pressed in words, has been superseded by their later intent, 68 expressed in deeds. As a consequence, the "Charter-is-dead" school sees no legal impedi- ment to engaging in self-defense, anticipatory self-defense or preemptive self-defense, whenever a state perceives a need to protect the well-being of its people. Our global civilization may evolve such that states, powerful and less powerful alike, can reach consensus on international rules con- cerning the use of force (perhaps through effective enforcement mecha- nisms), but until then there is no point in trying to split legal hairs about the meaning of Article 51. IV. CAN THE SCHOOLS BE RECONCILED? CONFRONTING METHODOLOGICAL PROBLEMS IN ASSESSING STATE PRACTICE The strikingly divergent views on the legality of preemptive self-de- fense no doubt have several causal explanations. International law as a whole suffers from the lack of authoritative decision-makers, such as a su- preme court with plenary power to decide controversial questions of ei- ther legal process or substance, thus making a convergence of views harder. Further, international law on the use of force presents particular difficulties in promoting state fidelity to a normative structure given that adherence to norms is under the greatest stress when issues of national security are at stake. Finally, the norms may not be static in nature. Whether September 11 can be viewed as a "constitutional moment" for 68. Michael J. Glennon, Preempting Terrorism: The Case for Anticipatory Self-De- fense, WKLV. STANDARDJan. 28, 2002, at 24, 27 [hereinafter Preempting Terrorism]; see also MICHAELJ. GLENNON, LIMITS OF LAW, PREROGATIVES OF POWER: INTERVENTION- ISM AFTER Kosovo (2001) [hereinafter LIMITS OF LAW] (examining humanity's ef- fort to subject use of force to rule of law and finding that it is no longer possible to know when use of force by state is legal under international law). Currently states intervene on basis of less concrete concepts such as 'justice", or simply when it serves perceived interests of state. Id.; Michael J. Glennon, The Fog of Law: Self- Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter, 25 HARv. J.L. & PUB. POL'V 539, 540 (2002) (noting that use of force rules in U.N. Charter have been routinely disregarded and are basically illusory). Professor Glennon is not alone, especially if one looks outside the realm of international lawyers to that of international relations theorists. See, e.g., Anthony Clark Arend, International Law and the Recourse to Force: A Shift in Paradigms,27 STAN. J. INT'L L. 1, 28 (1990). One theorist stated: Based on what states have been saying and what they have been doing, there simply does not seem to be a legal prohibition on the use of force against the political independence and territorial integrity of states as provided in even a modified version of Article 2(4). The rule-creating process-authoritative state practice-has rejected that norm. Id.; see also Christine Chinkin, The State that Acts Alone: Bully, Good Samaritan or Icono- clast?, 11 EUR. J. INT'L L. 31 (2000) (questioning indispensability of United Nations after Kosovo and finding United Nations' role as icon of universal collective re- sponsibility may no longer functionally exist); John Alan Cohan, The Bush Doctrine and the Emerging Norm of Anticipatory Self-Defense in Customary International Law, 15 PACE INT'L L. REV. 283, 327 (2003) ("Article 51's constraint on use of force has collapsed in actual practice.").  VILLANOVA LAW REVIEW [Vol. 50: p. 699 international law-meaning a moment in which seismic shifts in interna- tional law occurred without any formal amendment-is unclear, but the rise of global terrorism represented by those attacks challenges many of the conventional assumptions upon which international law has been based. Despite these many factors, a central reason for these divergences of view may well be that: (1) international lawyers are not explaining the methodology that they are employing in determining the state of the law; (2) are not recognizing that their disagreement with other international lawyers arises largely from the use of different methodologies; and (3) are not articulating why one methodology is superior to another. In particu- lar, to the extent that state practice is deemed significant for purposes of interpreting the U.N. Charter or determining the emergence of a new customary rule of law, international lawyers rarely explain their view as to the circumstances that merit using state practice to establish an evolution in the state of the law and too often provide only a cursory analysis of such practice to see if those circumstances are met. Unfortunately, in reading the literature one cannot help but feel that international lawyers are often coming to this issue with firm predispositions as to whether anticipatory self-defense or preemptive self-defense should or should not be legal and then molding their interpretation of state practice to fit their predispositions. Ideally, international lawyers would agree upon a narrative explana- tory protocol that would set forth a coherent structure for analyzing and configuring state practice, as has been done in the field of international relations theory. 69 Among other things, developing such a protocol may allow international lawyers to move away from a binary discussion of whether preemptive self-defense is lawful or unlawful, to one that explores the subtleties and nuances of how states react to varying levels of such force being used in different kinds of factual scenarios. The purpose of this section is to identify some of the key issues that arise in assessing meth- odology and state practice on this topic in the hope that it may promote the pursuit of an explanatory protocol, and in turn, more rigorous analy- ses by international lawyers and more convergence in the positions taken by them regarding the legality of preemptive self-defense. 70 Through greater convergence in the views taken by international lawyers, the nor- 69. See JOHN G. RUGGIE, CONSTRUCTING THE WORLD POLITY 94 (1998) (ex- plaining that narrative explanatory protocol comprises two "orders" of informa- tion: descriptive and configurative); John G. Ruggie, What Makes the World Hang Together? Neo-Utilitarianismand the Social Constructive Challenge, 52 INT'L ORG. 855-85 (1998) (discussing how modern theorizing in international relations views world in terms of actors and interests, ignoring "class of facts that do not exist in the physi- cal object world...[facts that] depend on human agreement that they exist and typically require human institutions for their existence. Social facts include money, property rights... [and] marriage...). 70. For a further discussion of the key issues that arise in assessing methodol- ogy and state practice on this topic, see infra notes 72-198 and accompanying text. 2005] THE DOCTRINE OF PREEMPTIVE SELF-DEFENSE mative standards set by international law may become clearer and more helpful for states in ordering their relations. A. The Problem of ClarifyingMethodology Most international lawyers are taught that when faced with a question of whether a particular treaty has been violated (such as the U.N. Char- ter), one is to focus on the "ordinary meaning" of the terms of the treaty, in their context and in light of the treaty's "object and purpose." 71 Moreo- ver, one may also take into account "any subsequent practice in the appli- cation of the treaty which establishes the agreement of the parties regarding its interpretation." 72 Virtually all international lawyers writing on the doctrine of preemptive self-defense either consciously or uncon- sciously use some elements of this approach to treaty interpretation, but they often adopt a particular component of the methodology that is useful for advancing their position on preemptive self-defense and avoid empha- sizing (or even recognizing) other components. An emphasis on the text of the treaty is sometimes referred to as a "textual" or "literal" approach, and an emphasis on the object and purpose of the treaty is an "effective" 73 or "teleological" approach. Thus, the "strict constructionist" school heavily relies on the ordinary meaning of the terms of Article 51, which, as discussed above, appears to 74 require an "armed attack" prior to engaging in a right of self-defense. For the strict constructionist, the language of Article 51 presents a high hurdle over which the other schools cannot leap. Yet, this school tends to downplay or ignore the other elements relevant to treaty analysis, particu- larly the possibility that over time states may reinterpret Article 51 through their practice. Since 1945, states have deviated from the language of the Charter in many ways that are found acceptable by states, ranging from 71. See Vienna Convention on the Law of Treaties, May 23, 1969, art. 31, S. TmFAv Doc. No. 92-12, 1155 U.N.T.S. 331, 340 [hereinafter VCLT] (providing general rule of interpretation of treaties, including that treaties should be inter- preted in good faith, context for interpretation of treaty and other considerations that should be taken into account). The VCLT's authoritative character as law, even for states not a party to it, derives from the fact that it is now generally ac- cepted that most of its provisions are declaratory of the customary international law of treaties. See id. at 331 (stating that Vienna Convention on law of treaties was registered ex officio on January 27, 1980). Although the United States has not be- come a party to the VCLT, it regards the substantive provisions of the VCLT as reflective of customary international law on the subject. See S. EXEC. Doc. L, 92-1, at 1 (1971) ("The convention is already generally recognized as the authoritative guide to current treaty law and practice."); RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES pt. III, introductory note (1987) (finding that Department of State has stated that it regards particular articles of Vienna Convention as codifying international law, and noting that U.S. courts have treated various provisions of Convention as authoritative). 72. VCLT, supra note 71, art. 31 (3) (b). 73. See ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 185 (2000). 74. For a further discussion of the beliefs and theories of the strict construc- tionist school, see supra notes 20-36 and accompanying text.  VILLANOVA LAW REVIEW [Vol. 50: p. 699 the practice of permanent Members abstaining (rather than concurring) on substantive issues decided by the Security Council 75 to the reading of U.N. Charter Article 23's reference to "the Union of Soviet Socialist Re- publics" as meaning now the "Russian Federation ' 76 to the use of conflict resolution techniques nowhere contemplated in the Charter, such as U.N.- authorized "peacekeeping" forces, the General Assembly's use of the "Uniting for Peace" resolution 77 or U.N. authorizations to military forces operating under national commands. The strict constructionist normally reviews some of the state practice since 1945, but finds such practice too sparse or unconvincing to establish a reinterpretation of Article 51.78 The strict constructionist, however, would be more convincing by explaining clearly the methodology for ex- amining state practice (such as by confronting several of the problems identified below) and indicating why a norm favoring, for example, the bestowal of Security Council authority on states operating under national commands is deemed lawful under that methodology, whereas preemptive self-defense is not. Moreover, the strict constructionist often stresses evi- dence within the negotiating history of the Charter that favors a restrictive reading of Article 51, even though standard treaty interpretation disfavors reference to such history absent ambiguity in the text or absurdity in appli- cation of the text. 79 The strict constructionist should confront the fact that subsequent state practice holds a higher place under standard treaty interpretation than negotiating history and should candidly assess whether the ordinary meaning of Article 51 is ambiguous and susceptible to alter- native interpretations. The "imminent threat" school also dwells somewhat on the ordinary meaning of Article 51, but stresses the term "inherent right" of self-de- fense and uses such language to bootstrap in the pre-Charter standard of self-defense reflected in the Caroline incident in support of its position.8 0 75. See CHARTER COMMENTARY, supra note 23, at 493-98. 76. See id. at 439. 77. G.A. Res. 377(V), U.N. GAOR, 5th Sess., 302nd Plen. Mtg., U.N. Doc. A/ PV.302, 341 at 347 (Nov. 3, 1950). The resolution, entitled "Uniting for Peace" in essence purports to transfer from the Security Council to the General Assembly the authority to authorize the use of force under Chapter VII in cases where the Security Council is deadlocked. See id. 78. For a further discussion of the beliefs and views held by the strict con- structionist school, see supra notes 20-36 and accompanying text. 79. Treaty interpretation calls for recourse to the preparatory work of the treaty (that is, the negotiating record) only where the initial interpretation leads to an ambiguous or obscure meaning or to an absurd or unreasonable result. See VCLT, supranote 71, art. 32, 1155 U.N.T.S. at 340 (presenting procedure for treaty interpretation). 80. See, e.g., Myres S. McDougal, The Soviet-Cuban Quarantine and Self-Defense, 53 AM. J. INT'L L. 597, 598-600 (1963) (referring to Caroline incident to show that necessity of self-defense does not require actual armed attack); BowErr, supra note 38, at 187-90 (stating that Article 51 was intended to safeguard right of self-de- fence, and not restrict it and referring to Caroline as classical illustration of antici- patory self-defense). While McDougal does not use the term "inherent right," he 2005] THE DOCTRINE OF PREEMPTIVE SELF-DEFENSE Yet, the "imminent threat" school senses the weakness in focusing on the language of Article 51 and thus moves quickly in its methodology to post- 1945 state practice, typically providing a more detailed account of that practice than the strict constructionist. 8 1 Here too, however, "imminent threat" theorists usually do not examine their methodology for assessing state practice; it remains unclear exactly what elements of state practice are relevant and why. Like strict constructionists, imminent threat theo- rists would be more convincing if they set forth a cogent methodology, explained how that methodology fit with respect to issues other than antic- ipatory self-defense and then used the methodology to demonstrate why anticipatory self-defense is permissible. The "qualitative threat" school downplays the ordinary meaning of Article 51 of the U.N. Charter-even denigrates reliance on such language as a "push button" approach to legal analysis 8 2-and further downplays post-1945 state practice, no doubt realizing that neither is particularly use- ful in establishing a right of preemptive self-defense. Instead, the qualita- tive threat school at its heart argues that preemptive self-defense is lawful because the "object and purpose" of Article 51 is to maintain each state's inherent right of self-defense. 83 They believe that in a world with WMD and terrorists acting secretly and with state support the only reasonable 84 way of achieving this purpose is to permit preemptive self-defense. A central problem with this approach is that reasonable minds disa- gree on the object and purpose of Article 51. For the strict constructionist school, the object and purpose of Article 51 is to "cut to a minimum the unilateral use of force in international relations," 85 which is best served by precluding both anticipatory self-defense and preemptive self-defense. At the end of the day, the qualitative threat school must confront why its "reasonable" interpretation of the Charter's object and purpose is supe- rior to that of others. The most plausible means for doing so would be to establish that the "qualitative threat" interpretation has been widely adopted by states, which in turn should lead this school into identifying and demonstrating a methodology of assessing state practice. repeatedly refers to the understanding that acting in self-defense does not require an actual armed attack as the "customary right" of self-defense. Id.; see also D.W. Bowett, The Interrelation of Theories of Intervention and Self-Defense, in LAW AND CrvIL WAR IN THE MODERN WORLD 38, 38-40 (John Norton Moore ed., 1974) (arguing that Article 51 was intended to preserve "traditional right" of self-defense, which included right to take action against threat before actual armed attack occurred). 81. For further discussion, see supra notes 37-58 and accompanying text. 82. See Sofaer, supra note 59, at 213 (presenting some scholars' belief that 'push button' approach to analyzing Charter is flawed). 83. See id. at 212 (stating that current standard is "necessity" and this should be determined in light of purposes of U.N. Charter). 84. See id. at 213-14 (concluding that qualitative threat school believes that preemptive self-defense is only reasonable way to protect states from terrorism). 85. CHARTER COMMENTARY, supra note 23, at 803. 724 VILLANOVA LAW REVIEW [Vol. 50: p. 699 The "Charter-is-dead" school is deeply interested in post-1945 state practice, to the point of finding that such practice has completely up- ended whatever normative rules emerged in 1945. As noted above, for this school there is such widespread evidence in state practice of a depar- ture from Charter norms that the norms have no meaning. 86 Therefore, preemptive self-defense is lawful (or at least cannot be considered unlaw- ful). But this school typically does not advance a methodology of legal interpretation that can be seen as holding true with respect to interna- tional law and that therefore is appropriate to apply to preemptive self- defense. For instance, this school's reference to "291 interstate conflicts" since 1945 might prove that Charter rules on the use of force have no normative value, but on the same logic, perhaps the lack of, say, 582 inter- state conflicts proves that such rules have normative value. 8 7 In other words, laws are broken all the time; in the United States in 2002 there were 16,204 murders and 2,151,875 burglaries. 88 But the fact of law viola- tion-even widespread law violation-is not commonly viewed as proving that the law does not exist or that it does not have an effect in condition- ing the behavior of those to whom it is addressed.8 9 For example, if the speed limit on a road is fifty-five miles per hour, but it is widely accepted that one may travel at sixty miles per hour without repercussions, then the speed limit has established a normative standard (fifty-five plus five) that individuals accept as appropriate for judging deviant behavior. To seriously consider the relevance of interstate conflict since 1945, it would help to know whether there were instances where interstate conflict did not occur because an aggressor state found unacceptable the conse- quences of violating the non-aggression norm. It would help to know whether the existence of global norms on the use of force has, in some sense, seeped into the "collective consciousness" of global society. If so, then perhaps, leaders today (as opposed to their predecessors of a century ago) are more apt to abide by the norm than they would in its absence. People are more apt to resist leaders who depart from the norm, and states are more apt to condemn other states that depart from the norm even though such departures inevitably occur. One might want to know in how many interstate conflicts since 1945 the norm provided a basis for galvanizing global reaction to the resort to force, whether in the dramatic form of the U.N.-authorized coalition that expelled Iraq from Kuwait in 86. For a discussion of the Charter is dead view that norms have no meaning, see supra note 68. 87. See How NATIONS BEHAVE, supra note 34, at 146 (recognizing that norm lies against use of force by states); MARTHA FINNEMORE, THE PURPOSE OF INTERVEN- TION: CHANGING BELIEFS ABOUT THE USE OF FORCE 7-8 (2003) ("It is precisely be- cause states show restraint that we live in a world of sovereign states at all."). 88. See FEDERAL BUREAU OF INVESTIGATION, CRIME IN THE UNITED STATES 2002: UNIFORM CRIME REPORTS 19, 45 (2003) (presenting national crime statistics). 89. See Oscar Schachter, In Defense of InternationalRules on the Use of Force, 53 U. CHI. L. REV. 113, 130-31 (1986) (arguing that violation of laws does not mean that legal restraints on conduct do not exist). 2005] THE DOCTRINE OF PREEMPTIVE SELF-DEFENSE 1991 or the insistent pressure brought to bear on Eritrea and Ethiopia during 1998-2000. Even with respect to resort to force by powerful states, one might posit that raw power may be occasionally used, but that because deviation from the norm promotes instability and escalation, such states more often apply their power within the framework of the normative sys- tem. 90 The "Charter-is-dead" school is correct that we cannot simply as- sume these things;9 ' they must, if possible, be demonstrated. 9 2 At the same time, it is not convincing simply to assume that state conduct is not affected by norms on the use of force, especially because states repeatedly and consistently assert that the norms of the Charter are relevant and ap- plicable and because there are instances where adherence to the norms seem quite important to states. 9 3 Close analysis of state practice would appear to be the best way for the "Charter-is-dead" school to prove that the rules of the Charter are indeed dead. It would also be useful to clarify whether state practice since 1945 is relevant for the purpose of interpreting the meaning of the Charter or, alternatively, for the purpose of determining whether a new norm of cus- tomary international law has emerged that supersedes the obligations set forth in the Charter, and if so whether it makes any difference. To the extent that there is discussion of this issue, the strict constructionist school may resort to the notion of jus cogenS94 as a means of arguing that a new 90. See MICHAEL BYERS, CUSTOM, POWER AND THE POWER OF RULES: INTERNA- TIONAL RELATIONS AND CUSTOMARY INTERNATIONAL LAW 6 (1999) (noting that use of quick, unorganized force to achieve goals has many disadvantages, however, organized use of force backed by legal system is more efficient and safer for states to employ). 91. See LIMITS oF LAW, supra note 68, at 42 ("There is simply no reason to assume that state conduct necessarily is caused by perceptions as to what a treaty permits or prohibits. States act for reasons altogether unrelated to their treaty obligations."). 92. See generally FINNEMORE, supra note 87 (discussing various justifications for military intervention). Professor Finnemore analyzes rules on the use of force from a sociological perspective, meaning a perspective that explains the conduct of actors by reference to the social structures in which they are embedded. Id. Among other things, she finds that legal norms have played a key role in funda- mentally changing state practice regarding the use of force. Id. 93. For example, in the course of the decision to invade Iraq in 2003, British Prime Minister Tony Blair apparently saw considerable importance in obtaining Security Council authorization, to the point that his government was considered at risk of falling in March 2003 when it became clear that express Security Council authorization was not forthcoming. See, e.g., Karen DeYoung & Colum Lynch, Brit- ain Races to Rework Resolution, WASH. POST, Mar. 11, 2003, at Al (reporting that Blair supported amending resolution even in face of challenge to power); Glenn Frankel, Parliament Backs Blair on Action Against Baghdad, WASH. PosT, Mar. 19, 2003, at A17 (reporting on revolt, which ultimately was defeated, in Blair's Labor Party). 94. Jus cogens refers to a fundamental or peremptory norm of international law from which states cannot deviate. See Military and Paramilitary Activities (Ni- car. v. U.S.), 1986 I.CJ. 14, 100-01 (June 27) (finding that rule against use of force is "conspicuous example of a rule of international law having the character of jus cogens"); see alsoVCLT, supra note 71, art. 53, 1155 U.N.T.S. at 344 ("[Jus cogens] is a 726 VILLANOVA LAW REVIEW [Vol. 50: p. 699 rule of customary international law cannot emerge because states may not deviate from the strict constructionist's interpretation of Articles 2(4) and 51,9 5 but the other schools may question whether the emergent custom really deviates from the U.N. Charter or may challenge the very notion of jus cogens.96 In any event, most discussions of preemptive self-defense tend to glide over this issue, even though it is central to the question of why and how one is considering state practice. The brief discussion above suggests that there is a common compo- nent among the four schools of thought: the general lack of attention to the methodological approach in assessing the legality of preemptive self- defense and an unwillingness to explain why one approach is superior to another. At the same time, each of the four schools appears interested, to a degree, in the role of state practice since 1945, such that if better agree- ment existed among the schools regarding how such practice should be 97 treated, it might be possible to see some convergence among them. Thus, if the "strict constructionist" and the "imminent threat" theorist can agree that post-1945 state practice matters, then focusing on and perhaps reaching agreement how such practice should be assessed would be a helpful step prior to actually assessing the practice. Likewise, the "qualita- tive threat" theorist may downplay state practice of the kind typically raised in discussions of preemptive self-defense, but if the qualitative threat theo- rist could convince the other schools that state practice should