International Law: LOAC

Not By Any Other Name: A Response to Jack Goldsmith on Obama's Imminence

By Daniel Bethlehem
Thursday, April 7, 2016, 1:51 PM

Jack has been quick to draw parallels (here and here) between the Bush administration’s doctrine of pre-emption, set out in the September 2002 National Security Strategy, and the Obama administration’s approach to jus ad bellum imminence expressed by State Department Legal Adviser Brian Egan in his recent speech at the annual meeting of the American Society of International Law. Although he did not put it quite in these terms, Jack seemed almost to be quoting Shakespeare, or at least praying in aid of his case the sentiment expressed by Juliet: “What’s in a name? that which we call a rose, By any other name would smell as sweet.”

For all the analysis, this is too clever, and misses an essential element. The 2002 National Security Strategy invented new language and, in doing so, suggested that the United States was moving away, with deliberate thought and careful consideration, from established tenets of international law. And when new language was invented unilaterally, and by the United States, it justifiably gave cause for concern that the new policy based on the new language would be avowedly unilateralist as well. And this was hugely problematic.

The jus ad bellum concept of imminence has always posed challenges. The Caroline standard of “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation” sits uneasily with virtually every circumstance other than the 1837 incident that it addressed. It has, however, shaped the law since then and provided an anchor to ensure that, even in the changing circumstances of the modern world, and in the face of new threats, the law and the conduct it addresses will hew towards a necessity to act, not simply an inclination to do so.

Those of us, friends and allies of the United States, engaged in a legal dialogue with lawyers from the Bush administration on these issues, were concerned that the doctrine of pre-emption posed a fundamental challenge to the edifice of international law, given also that it was inextricably coupled both with an approach that excluded application of the jus in bello to those whom the U.S. was detaining, interrogating and targeting as well as with a global war on terror analysis that did not limit the inherent right to act in self-defence to clearly legally defined geographic spaces. This concern, forcefully held, nonetheless recognised, from our own experience as well, the significant national security threats that had emerged more clearly into the light following the attacks of September 11, 2001. In our dialogue, we sought to persuade our U.S. colleagues away from new rhetoric and new analyses and back to a legal framework that we could all recognise. The principles, published under my name in the American Journal of International Law to which Brian Egan made reference in his speech, were an attempt to set out a framework that took us back to a common appreciation of law. The imminence elements, set out in principle 8, sought to identify a more rigorous and transparent framework of legal enquiry for assessing whether a State had a right to use force by way of anticipatory self-defence in the face of a threat from a non-State actor. The threshold principles that these elements followed averred the last resort character of the use of force and the principles of necessity and proportionality.

Brian Egan, and the Obama administration, can speak for themselves. From my vantage point, the policy that Brian outlined in his ASIL speech is some distance, and materially different, from the broad, unilateralist brush of the Bush doctrine of pre-emption and its associated policies of the non-application of the jus in bello and the global war on terror.