In February 2003, as U.S. Defense Secretary Donald Rumsfeld was arguing for a preemptive strike on Iraq, German Foreign Minister Joschka Fischer seemed to sum up the international community’s incredulity: “Excuse me, I’m not convinced.”
The U.N. Security Council similarly doubted that Iraq’s weapons program posed an immediate threat and pushed for inspections to continue. Robin Cook resigned his cabinet position as leader of the U.K. House of Commons, saying that Iraqi leader Saddam Hussein was not a clear and present danger to Britain. Lawrence Eagleburger, who had previously served as U.S. secretary of state, stressed that war with Iraq was only legitimate if there was evidence that Saddam was about to launch an attack. The U.S. Conference of Catholic Bishops also concluded that such a strike would only be justified through “clear and adequate evidence of an imminent attack of a grave nature.”
In February 2003, as U.S. Defense Secretary Donald Rumsfeld was arguing for a preemptive strike on Iraq, German Foreign Minister Joschka Fischer seemed to sum up the international community’s incredulity: “Excuse me, I’m not convinced.”
The U.N. Security Council similarly doubted that Iraq’s weapons program posed an immediate threat and pushed for inspections to continue. Robin Cook resigned his cabinet position as leader of the U.K. House of Commons, saying that Iraqi leader Saddam Hussein was not a clear and present danger to Britain. Lawrence Eagleburger, who had previously served as U.S. secretary of state, stressed that war with Iraq was only legitimate if there was evidence that Saddam was about to launch an attack. The U.S. Conference of Catholic Bishops also concluded that such a strike would only be justified through “clear and adequate evidence of an imminent attack of a grave nature.”
Ultimately, the Bush administration’s preemptive war on Iraq was rejected as illegitimate by the international community and by the scholars, lawyers, and theologians who were the custodians of the just war tradition. Arguably, one of the outcomes of that disastrous war of choice was to reestablish the moral and legal norms surrounding preemptive warfare, even when weapons of mass destruction (WMD) are involved—and to shore up the central importance of the imminence of the threat in question.
However, less than a quarter of a century later, it appears the issue will have to be relitigated. On June 13, Israel launched a massive wave of attacks across Iran, bombing nuclear facilities and assassinating military commanders and scientists. Israeli Prime Minister Benjamin Netanyahu asserted that Iran was close to building a nuclear bomb and that “we have no choice but to act—and act now.” On June 22, the United States joined Netanyahu’s campaign, attacking three Iranian nuclear sites with “bunker buster” bombs and Tomahawk missiles.
The echoes with the Iraq case are unsettling, including disputed intelligence about WMD, the claim to be bombing on behalf of the civilized world, the manipulation of events to justify a long policy obsession, and the prospect of U.S.-backed regime change in the Middle East. But in the present context of the erosion of the rules-based system—itself an effect of the Iraq War—the strikes on Iran could establish a dangerous precedent for an expansive understanding of preemptive warfare.
On Dec. 29, 1837, in the dead of night, British marines boarded a private U.S. steamboat that was running guns across the Niagara River to anti-British rebels in Canada. The marines set fire to the Caroline and set it adrift to plunge over Niagara Falls, leaving one U.S. national dead on the dock.. The British ambassador to the United States justified the sinking as an act of preemptive self-defense. However, U.S. Secretary of State Daniel Webster argued in 1841 that, for an act of self-defense to be legitimate under international law, “it will be for [the British government] to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.”
Webster’s formula remains the customary international legal definition of lawful preemptive self-defense. It was reaffirmed during the Nuremberg trials when the judges rejected the characterization of the Nazi invasion of Norway as a defensive act. The formula was also mobilized in the 1981 Osirak case, when Israel unilaterally bombed an Iraqi nuclear reactor and the threat was deemed too distant to have merited a military reaction.
In September 2002, U.S. National Security Advisor Condoleezza Rice remarked, “You know, Daniel Webster actually wrote a very famous defense of anticipatory self-defense.” However, invoking Webster—whose articulation of imminent threat meant that even “daylight could not be waited for”—only served to emphasize the extent to which the Bush administration’s case for war fell short of the legal imminence standard.
Israeli and U.S. strikes on Iran, which seek to prevent the development of the means by which Iran might attack at some future date, also appear to fail Webster’s test.
Of course, the idea that a state must suffer an attack of which it has advanced knowledge is neither reasonable nor in tune with a meaningful understanding of self-defense. Based on state practice, legal principles, and simple logic, international lawyers agree that “a state need not wait to suffer the actual blow before defending itself, so long as it is certain the blow is coming.” In fact, in a genuine preemptive strike, the attacker retains the moral and political status of the victim.
Legitimate preemptive war is underpinned by a certain immediate threat, as distinct from (illegitimate) preventive war, which involves a long-term potential threat. In justifying the Iraq War, Bush administration officials fought very hard to collapse this distinction by adapting “the concept of imminent threat to the capabilities and objectives of today’s adversaries.” They argued, firstly, that the disproportionality destructive nature of WMD changes things. Second, they invoked the sudden carnage of 9/11. “Stop and think for a moment,” U.S. Deputy Defense Secretary Paul Wolfowitz urged. “Just when were the attacks of September 11th imminent?” This overlap of technology and radicalism meant that, in George W. Bush’s reckoning, “America must confront threats before they fully materialize.”
Last week, Netanyahu summoned the two components of Bush’s model, arguing that Iran had enough highly enriched uranium for nine atom bombs and that Tehran planned to give these nuclear weapons to its terrorist proxies. “That would make the nightmare of nuclear terrorism all too real,” he said.
Even if it were accepted that the combination of WMD and terrorism changes imminence, the intelligence on which Netanyahu built his argument is widely doubted—as was the Bush administration’s. Netanyahu’s assessment of Iran’s capabilities is at odds with those of both the U.S. intelligence community and the U.N. nuclear watchdog. Speaking this week on CNN, Rafael Grossi, the director-general of the International Atomic Energy Agency, was clear that “we did not have … any proof a systematic effort to move into a nuclear weapon.” He added: “There have been in the past some activities related to the development of nuclear weapons, but we did not have, at this point, these elements.” Either way, as the international lawyer Christopher Greenwood argued in 2003, even when WMD and terrorists are involved, “the requirement that the attack be imminent cannot be ignored or rendered meaningless.”
When Fisher announced his skepticism in February 2003, he was pushing to triple the number of U.N. inspectors in Iraq and back them up with surveillance flights. Indeed, just wars are always wars of last resort. Every peaceful alternative to violence must first be exhausted.
Yet Netanyahu first struck Iran while nuclear negotiations with the United States were ongoing. Consequently, some commentators have conjectured that Israel’s bombing was aimed at scuppering that very diplomacy, while others have posited, variously, that it was about generating unity among a domestic electorate angry at his government, effecting regime change in Tehran, restoring support from Western allies, or distracting from Israel’s transgressions in Gaza.
In making the case for war, Netanyahu stated that “for decades, the tyrants of Tehran have brazenly, openly called for Israel’s destruction. … [Now] they’ve backed up their genocidal rhetoric with a program to develop nuclear weapons.” Of course, Israeli leaders have themselves used genocidal rhetoric about Palestinians and meted out actual and unprecedented destruction in Gaza using conventional weapons, in a campaign widely considered to amount to genocide and to the crime against humanity of extermination. Israel is also known to have nuclear weapons.
There is a great danger, therefore, in the moral and legal precedent that could be set by Israel and the U.S. if the international community fails this time to reject their case for war. The imminence of a threat is crucial if the world is to avoid pointless wars fed by anxiety and fought on account of shifts in the balance of power. It seems especially important to uphold international legal standards in the face of rapid advancements in game-changing weaponry powered by artificial intelligence. It is conceivable that Netanyahu’s—and now Trump’s—example could be referenced one day soon, against a state alleged to be on the cusp of a major AI breakthrough.
On the eve of the Suez crisis in 1956, David Ben-Gurion, Israel’s first prime minister, received a letter from Doris May, a British secretary he had met in London. “There is no such thing as a preventive war,” May counseled him. “Preventive war only makes inevitable a war that might otherwise be prevented.” At this fraught moment, her wisdom should be heeded.
