BY DAVID LICKOVA
How do policymakers filter legal advice into their decision-making calculus? In its annual symposium, “Striking First: Legal Perspectives on Preemptive Action,” the Harvard International Law Journal invited policymakers and government lawyers to analyze this question in the context of the use of preemptive force. By focusing first on the situations in Iran and North Korea and then on hypothetical situations involving terrorist actions, the March 2 symposium sought to explore the practical considerations for this widely-discussed issue.
The first panel of the day featured a discussion of the possibility of preemptive war against Iran and North Korea and was moderated by Ashton B. Carter, former Assistant Secretary of Defense for International Security Policy. Mr. Todd Buchwald, Assistant Legal Adviser for United Nations Affairs for the U.S. Department of State, considered that extreme threats, such as those of weapons of mass destruction, call for a flexible and pragmatic reading of Article 51 of the UN Charter.
According to Buchwald, the three most important factors to take into account when considering the use of preemptive force are the availability of other options, the degree of harm to be avoided, and the demonstrated propensity of the adversary to attack. In his opinion, the “imminence” of an armed attack should be understood in this context as allowing for self-defense even though the attack has not yet reached a first stage of material realization. This proposition provoked lively reactions in the audience.
With the legal framework in place, the discussion moved to the specifics of the situations in North Korea and Iran. None of the panelists were particularly optimistic about the new agreement between the U.S. and North Korea or the possibilities of achieving a good deal with Iran.
Evaluating the situation in the North Korea, former Ambassador Mitchell B. Reiss, a lawyer by training who also has political experience as head of policy planning at the State Department, tried to bridge the gap between the legal and policy worlds. He focused his discussion around the idea that an action could be unlawful but still legitimate. Reiss suggested that by following a progression through a number of factors in making the decision to act preemptively, policy makers could operate outsides the narrow confines of legality but within the bounds of legitimacy.
Discussing the current situation in Iran, Ray Takeyh, senior fellow for Middle East studies at the Council on Foreign Relations, noted that the Bush administration is negotiating from a position of weakness and merely hoping for some veneer of acceptability. Given the rhythm with which Iran is acquiring and building its nuclear facilities, a real nuclear risk can only materialize within several years. Meanwhile, the political context in the country itself may change and any consideration of preemptive strike by the U.S. at this moment would be thus very premature.
The panel agreed that, given the evolution in Iraq, it would be very difficult for the United States to gain support of international community for any other “preemptive strike”. According to the panelists, the United States must first rebuild the confidence of its allies both at more general political level and also in respect to reliability of its intelligence.
In the second panel, panelists tackled two related counter-terrorism scenarios developed by the ILJ Symposium Editor Lindsay Rodman with Richard Clarke. The panel, led by Fletcher Professor Antonia Chayes, included Gabriella Blum (Harvard Law School), Michael Glennon (Fletcher School of Law and Diplomacy), Thomas Keaney (Johns Hopkins SAIS) and Mark Weisburd (University of North Carolina). The panelists wrestled with the competing demands of customary international law and state sovereignty, negotiations, and securing the safety of American citizens to determine an appropriate solution for each hypothetical. Each contributed a unique perspective based on their various experiences as legal advisor, strategy planner, and policy advisor.
Alexander Slater (HLS ’07) remarked, “The symposium was a great opportunity to hear international legal scholars discuss how to give advice on preemption scenarios to policymakers. I was impressed in particular by their nearly universal opinion that the legal answer was only one part of the equation. Everyone seemed to understand and acknowledge that bureaucratic, domestic and foreign politics had to be considered alongside the legal issues.”
The first scenario posited that American tourists are taken hostage on the border between two Latin American countries by an unknown rebel group which neither country claims the ability to control. Although each country makes public statements decrying the kidnapping, both object to U.S. troop intervention.
In the second scenario, the U.S. has received reliable intelligence that an Al Qaeda leader has set up operations in Yemen and is being supported by the local government in a region which the national government does not have control. The U.S. would like to intervene militarily, but worries that if it told Yemen, the government would tip off the Al Qaeda leader and allow him to escape.
In each scenario, the panelists quickly shifted the discussion from one in which international law provides a definitive rule to one in which international law is one of many sources informing the policy debate.
More information on the speakers as well as formal write-ups of the panels will be available on the ILJ’s website: www.harvardilj.org.