Remember the Caroline!: The doctrine of 'anticipatory self-defense' — more relevant than ever

As night fell on December 29, 1837, a small British force crossed the Niagara River from Canada into New York. Their mission was to destroy the American steamboat Caroline, which had been carrying supplies to a group of Canadian insurgents. The Caroline was boarded, fired, and set drifting downriver, towards the Falls. At least one U.S. citizen was killed, several were wounded, and the U.S. came close to war with Britain. Rather than trigger war, however, the "Caroline incident" spawned the modern international-law doctrine of "anticipatory self- defense," a doctrine on which the U.S. now intends to rely heavily to justify military action against terrorist states. Speaking at West Point's recent commencement, President Bush laid out the compelling policy justification for this doctrine, noting that "we must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge." Far-reaching changes in strategy and force posture are already being made in order to implement this doctrine.

The rule of anticipatory self defense, as described in the correspondence between Britain's Lord Ashburton and America's secretary of state Daniel Webster over the Caroline incident, holds that a state need not absorb an enemy's attack, but may anticipate it and lawfully strike first. In accepting the British explanation that the Caroline was destroyed in "self-defense," because she would otherwise have continued to assist the Canadian rebels, Webster articulated the circumstances in which the doctrine properly applies: where the need is "instant, overwhelming, and leav[es] no choice of means and no moment for deliberation."

Anticipatory self-defense had been a common practice even before the Caroline. In 1587, for example, Queen Elizabeth I sent a fleet, under Sir Francis Drake, to attack Spanish and Portuguese harbors in a preemptive strike against the "Invincible Armada." Forty years later, international-law theorist Hugo Grotius acknowledged the practice as a rule of law.

For all that, however, anticipatory self-defense remains controversial. The European view generally appears to be that a U.N. Security Council resolution is necessary before armed force can be employed. A number of European leaders claim that force can be used only to repel an armed attack on one's territory. But this position -- which would require states to wait until the smokestacks of an enemy fleet rose over the horizon and the first broadside was fired before responding -- was hopelessly unrealistic even a century ago. Today, when advance warnings may be calculated in seconds, rather than weeks or days, it is all the more so.

Nevertheless, opponents of the anticipatory-self-defense doctrine appear more concerned with the possibility that it could be abused -- by states seeking to cloak aggression in the mantle of self-defense -- than with the increasing danger that a delayed response will result in disaster. These criticisms are often laced with a heavy dose of anti- Americanism, since the U.S. is currently viewed as the most obvious beneficiary of the anticipatory-self-defense rule.

Some commentators argue that allowing states to attack based upon suspicions or intelligence warnings would make the use of force a more frequent occurrence; their underlying assumption is that misperceptions, mistakes, and hair-trigger military postures -- the World War I mentality -- are destabilizing and the main causes of wars. When pressed for modern examples, they describe the current Pakistan- India standoff as an illustration of the dangers posed by preemptive military postures. These criticisms, however, are misplaced. The real danger in today's world comes from rogue regimes and terrorist organizations that don't care about international law, and whose propensity to use violence is not affected by game theory or exegeses of international treaties. Such regimes and groups understand only the language of military force. A robust preemptive posture offers the best hope both of deterring them and, if necessary, of defeating them.

Perhaps recognizing the weakness of their policy arguments, opponents also advance legal claims. They argue that the anticipatory-self- defense doctrine, however venerable or consonant with the national interest, did not survive the 1945 adoption of the U.N. Charter -- which requires all U.N. members to "refrain in their international relations from the threat or use of force" and limits application of the "inherent right of individual or collective self-defense" to circumstances in which an armed attack already has taken place. This argument, however, relies on a crabbed reading of the charter, and reflects the erroneous (albeit widely held) view that the charter superseded the entire preexisting body of international law.

Moreover, the notion that anticipatory self-defense is barred by the U.N. Charter has not been supported by the actual practice of states in the years since the U.N. was established. And that, in the final reckoning, is the critical question. Anyone attempting to determine what international law truly provides on any particular point would do well to heed the Marquise de Merteuil's maxim in Les Liaisons Dangereuses: Don't listen to what people tell you, watch what they do. Here, the evidence is overwhelming that the traditional law of anticipatory self-defense survives. In 1967, for example, Israel preemptively struck Egypt, Syria, and Jordan, rather than suffer the attack of their massing forces; Israel was neither condemned nor sanctioned by the U.N. for this action. Similarly, she attacked and destroyed an Iraqi nuclear-power facility in 1981, again citing "self- defense" as justification; this time, Israel's action was condemned in the Security Council, but no action was taken to address the supposed "aggression." Recalling the marquise's maxim, this strongly suggests a fundamental recognition that Israel acted in accordance with her rights under international law to anticipate, and foil, attacks before they were launched.