Pre-emptive Action
to Forestall Terrorism
By Frederic L. Kirgis
June 2002
According to news reports, President Bush
and his advisors are developing a new national security
strategy based on pre-emptive action against terrorist
groups and states that are trying to develop weapons of
mass destruction. It has been reported that the new policy
reserves the right to act even if the threat is not judged
to be imminent. The pre-emptive action would not necessarily
involve armed force, but that option is not ruled out.
Under the Lotus Case, decided by the World
Court in 1927, "the first and foremost restriction imposed
by international law upon a State is that - failing the
existence of a permissive rule to the contrary - it may
not exercise its power in any form in the territory of
another State."1 The right of self-defense is such
a permissive rule, if the conditions of necessity and
proportionality are met. U.N. Charter article 51 recognizes
the inherent right of self-defense, "if an armed attack
occurs" against a UN member state, until the Security
Council has taken measures necessary to maintain international
peace and security. On its face, article 51 would not
apply, and therefore would not be the permissive rule
contemplated by the Lotus Case, if the defensive action
is taken before any armed attack has occurred.
The UN Charter is a treaty binding upon
the United States and other UN member states. The Vienna
Convention on the Law of Treaties, which is widely thought
to reflect customary international law, allows a party
to a treaty to suspend the treaty's operation if circumstances
constituting an essential basis of its consent have fundamentally
changed in a way not foreseen when the treaty was entered
into, and if the change radically transforms the extent
of obligations still to be performed under the treaty.
It may be argued that the same principle would apply to
specific provisions in a treaty. Thus it may be argued
that circumstances have so fundamentally changed since
1945, when the UN Charter was adopted, that the "armed
attack" restriction can no longer be taken literally.
Clearly, the threat of large-scale terrorism with weapons
of mass destruction was not foreseen when the Charter
was drawn up, and one could argue that the other conditions
of the Vienna Convention allowing suspension of a treaty
obligation under changed circumstances have been met as
well.
Even if the "armed attack" restriction in
article 51 need not be taken literally as a treaty limitation
on the use of self-help in an age of large scale terrorism,
customary international law has supplied its own limitations
on pre-emptive self defense. Under a 19th century
formulation by the U.S. Secretary of State in the Caroline
incident, reaffirmed by the Nuremberg Tribunal after World
War II, the necessity for pre-emptive self defense must
be "instant, overwhelming, and leaving no choice of means,
and no moment for deliberation."2
If, as noted above, the new US policy reserves the right
to act in self defense even when the terrorist threat
is not imminent, the Caroline test would not be met.
But customary international law is not static.
It may be modified over time by new assertions of rights,
if other states acquiesce in those assertions. Thus the
reactions of other states to the new US policy could affect
the rule of the Caroline case. Moreover, precedents based
on specific fact situations may be distinguished when
the relevant facts change significantly. As in the case
of the argument against taking UN Charter article 51 literally,
it could be argued that the Caroline test is inapplicable
because it was formulated in an era, and under circumstances,
quite unlike those prevailing today. Similarly, the Nuremberg
Tribunal, when it reaffirmed the Caroline test in the
context of World War II, was dealing with a situation
distinguishable from the current scene. Even so, the
basic requirements of necessity and proportionality for
the lawful exercise of the right of self-defense would
remain in force.
There are also questions relating to tactics.
If the United States were to attempt to remove a foreign
head of state from office (leaving aside what it might
do during an actual war), the analysis would differ depending
on the method used. If it were done by supporting opposition
groups within the foreign country who are seeking to remove
the leader by the use of force, what the World Court said
in the 1986 case of Nicaragua v. United States would be
relevant:
The Court therefore finds that no such general right
of intervention, in support of an opposition within
another State, exists in contemporary international
law. The Court concludes that acts constituting a breach
of the customary principle of non-intervention will
also, if they directly or indirectly involve the use
of force, constitute a breach of the principle of non-use
of force in international relations.3
The Court decided in that case that the
United States, by supporting and aiding the "Contras"
in their attempt to overthrow the Nicaraguan government,
had breached its obligation under customary international
law not to intervene in the affairs of another State.4
A direct assassination attempt by the government
of one state against a head of another state would be
even more problematical. For example, earlier this year
the World Court enunciated a rule protecting the inviolability
of a top government official "against any act of authority
of another State which would hinder him or her in the
performance of his or her duties," even if the official
is suspected of having committed war crimes or crimes
against humanity.5 That case involved an arrest warrant issued by
Belgian authorities against the Foreign Minister of the
Democratic Republic of the Congo, not an assassination
attempt. But the principle of the case would extend,
a fortiori, to an assassination attempt against
a head of state.
1 Case of the S.S. "Lotus" (France v. Turkey), PCIJ
Series A, No. 10, at 18 (1927).
2 The Caroline (exchange of diplomatic notes between
Great Britain and the United States, 1842), 2 J. Moore,
Digest of International Law 409, 412 (1906).
3 Case Concerning Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v. United States),
1986 ICJ Rep. 14, 25 ILM 1023 (1986), para. 209.
4 The Court did not have the advantage of hearing the
US position on this issue, because the US had withdrawn
from the proceedings after the Court found that it had
jurisdiction to hear the case.
5 Case Concerning the Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium), 2002
ICJ Rep. ___, 41 ILM 536 (2002), paras 54, 58.
About the Author:
Frederic L. Kirgis is Law School Association Alumni Professor
at Washington and Lee University
School of Law. He has written a book and several articles
on United Nations law, and is a member
of the Board of Editors of the American Journal of International
Law.
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