Striking a sensible balance on the legality of defensive first strikes.

• Author: Sadoff, David A.

ABSTRACT

This Article seeks to develop a clear and sensible legal standard governing defensive first strikes writ large in interstate conflicts. Imprecise or improperly gauged legal parameters can contribute to an increased risk of hostilities, whether due to abuse, error, or even reasoned calculation. The implications of such conduct for states and their populations alike can be enormous. Although many proposals posit constructive guideposts for such a standard, they tend to be either abstract in structure or limited in material application. This Article sets forth a legal standard that aims to be simultaneously systematic in approach, comprehensive in scope, and functional in operation--all while embracing the elemental virtues of clarity and realism. After defining the presumptive baseline standard, the Article sets forth a legal policy framework upon which to erect a standard premised on several key attributes and contemporary security circumstances while fostering legal legitimacy and diminishing the incidence of armed conflict. The specific proposal for reform consists of three substantive elements: an evidentiary standard, a set of procedural safeguards, and a standard of review. The Article also compares the prevailing standard with the proposed standard and evaluates the latter's prospects for adoption.

TABLE OF CONTENTS I. INTRODUCTION II. DEFINING THE BASELINE LEGAL STANDARD III. CRITERIA FOR FRAMING THE PROPOSED LEGAL STANDARD A. First Component: Possess Certain Basic Attributes 1. Clarity 2. Flexibility 3. Comprehensiveness 4. Objectivity B. Second Component: Address Current Security Realities 1. Nature and Destructive Capacity of Modern Weaponry 2. Reduced Time to Respond to Attacks 3. Proven Inability of Security Council to Timely Intervene C. Third Component: Ensure Legitimacy of International Law 1. Behavioral Realism in Law Contributes to Its Legitimacy 2. Evaluating the Current Standard for its Consonance with Legal Realism 3. Problems with Rules that are Too Accommodating to Legal Realism D. Fourth Component: Diminish Prospects of Armed Conflict 1. Theoretical Assessment 2. Empirical Assessment 3. Potentiality Assessment IV. METHODOLOGICAL CONSIDERATIONS V. PROPOSAL FOR REFORM A. Substantive Elements 1. Gauging the Threat 2. Exhausting Peaceful Alternatives 3. Taking Responsive Action B. Procedural Safeguards 1. Burden of Proof 2. Requirement Prior to Taking Action 3. Requirements After Taking Action 4. Accountability C. Standard of Review 1. Value and Benefits of Reasonableness 2. Selecting a Type of Reasonableness 3. Applying the Reasonableness Standard D. Summary of Proposal 1. Substantive Elements 2. Procedural Safeguards 3. Standard of Review E. Adoption of the Standard 1. Possible Vehicles 2. Likelihood of Success VI. CONCLUSION I. INTRODUCTION

Suppose there are two medium-sized rival states, Alpha and Delta, with rapidly deteriorating political relations. Suppose further that Alpha suddenly made explicit threats of attack while deploying forces in unprecedented numbers along their common border. At what point, if any, should Delta be permitted unilaterally (1) to strike first in self-defense? What criteria should govern such a decision? What level of confidence or evidentiary proof must Delta have that Alpha is preparing to launch an attack? Should Delta be required to attempt a peaceful means of resolution before resorting to force and, if so, to what extent? What parameters should guide the nature, scale, and targeting of the defensive strike itself?. What standard of review should the international community apply to determine the lawfulness of the actions taken?

Should it make a difference whether Alpha and Delta each possess highly sophisticated arsenals with deterrent capability or a considerable disparity in military capabilities exists between them? Should it matter whether Alpha was suspected of mounting a conventional ground attack against Delta, dispatching a military unit to initiate a campaign of "pin-prick" attacks (2) against Delta, or launching a short-range missile with a nuclear warhead against one of its metropolitan areas? Would the situation be viewed differently if Delta was a small nation with a population distribution such that its very survival was jeopardized by Alpha's threat? This Article seeks to provide an analytical framework for tackling these and related normative questions.

Specifically, this Article aims to develop a clear, practicable legal standard to govern the use of first strikes in self-defense in interstate conflicts. (3) This type of action is referred to herein as "proactive self-defense," which is intended to operate as a value-neutral, umbrella term capturing the full range of recognized nonreactive forms (4) of self-defense: interceptive, (5) anticipatory, (6) and preemptive. (7) A single designation not only provides a convenient label for such wide-ranging conduct but also overcomes any confusion that can derive from the uncertain and often overlapping definitions applied to its component concepts. Although other phrases may convey a comparable meaning, the utility of this term stems from its nomenclature parallel to other forms of self-defense, its affirmative orientation, and its lack of potential misidentification with other similar-sounding terms such as "preemptive strike" and the more narrowly defined and distinct concept of "preemptive self-defense."

Many legal standards have been recommended or applied over the years concerning the nature and scope of proactive self-defense. Those standards run the gamut from the formula enunciated by U.S. Secretary of State Daniel Webster in 1841 in connection with the Caroline incident (8) to the doctrine promulgated in the Bush Administration's National Security Strategy of 2002. (9) Many of these proffer helpful guideposts for assessing a state's use of proactive defensive force but, as a rule, they tend to fall into one of two categories: (1) generalized standards, reminiscent of political science views, consisting of briefly enumerated elements that nevertheless encompass a holistic view of the international threat environment; (10) or (2) fairly detailed, legally-based frameworks whose scope is tailored to address only a single type of threat. (11) Some recommendations, however, are both abstract in structure and limited in material application. (12)

Although each of these proposals is valuable in its own right for advancing the dialogue and identifying priority concerns and criteria, the abstract proposals lack necessary detail and, as a result, are of less utility in framing a meaningful legal standard, while others may provide the requisite granularity but are too limited in scope to be of general use. This Article seeks to build upon the strengths of earlier proposals and set forth a legal framework that aims to be, at once, systematic in approach, comprehensive in scope, and functional in operation--all while faithful to the cardinal virtues of clarity and realism.

It is worth pausing momentarily to address the various needs for a clear and meaningful legal standard, particularly its application in the context of militarized states that might well prefer the more ambiguous standard of the status quo. First, a clear and meaningful legal standard would diminish the likelihood that a state will launch a strike out of confusion or ignorance of the governing standard or that a state will rely on legal ambiguity to support unilateral military measures on pretextual grounds. Second, a clear standard would enable third parties and the international community at large to effectively distinguish between legitimate and illegitimate actions, and to cast their military and diplomatic support accordingly behind the state whose conduct more closely conformed to international law. Third, a meaningful standard would more likely ensure that state conduct in contravention of its elements is properly identified, condemned, and punished.

Part II of this Article attempts to define the baseline legal standard for this review, a natural and necessary starting point for any legal reform. Part III sets forth a legal policy framework; it is against this backdrop that the current state of the law may be evaluated on its merits and a more suitable standard may be erected in response to fundamental principles and contemporary needs. Part IV briefly reviews key methodological considerations regarding the development of a legal standard, and Part V presents the Author's detailed proposal for reform.

2. DEFINING THE BASELINE LEGAL STANDARD

   The task of crafting a new legal standard immediately presents the confounding problem of defining the current law. Although there is no clear international consensus regarding the overall lawfulness of proactive self-defense, (13) there is a discernible pattern of state practice supporting the legality of anticipatory self-defense--albeit under strictly limited circumstances. (14) (The same cannot be said of the more temporally distant preemptive self-defense. (15)) The adoption of this emerging consensus as the presumed prevailing standard--for the sake of argument--allows this Article to bring a more robust normative perspective to bear on the issue of proactive self-defense, as it will provide a useful and tangible baseline against which to present a critique, identify specific areas requiring redress, and ultimately shape the reform proposal.

   While this conceptual approach may amount to taking liberties with the current state of the law, particularly in light of the literal text of Article 51 of the UN Charter, (16) it actually constitutes no more than a modest stretch, given the noteworthy support anticipatory self-defense has recently garnered. (17) To the extent the assumed standard can be accurately appraised, it appears to closely resemble the restrictive formula set forth with respect to the Caroline incident of 1837. (18)

   The Caroline incident occurred...