In response to:
Killing Our Citizens Without Trial from the November 24, 2011 issue
To the Editors:
David Cole’s convincing skepticism about the legal authority claimed by the Obama administration for ordering targeted killings [“Killing Our Citizens Without Trial,” NYR, November 24] seems to falter when he accepts a counterterrorism official’s assertion about a “UN Charter requirement that a threat be imminent before a nation can exercise its right of self-defense.”
There is no “imminence requirement” regulating preemptive strikes in the Charter. The right of self-defense, independent of the UN Security Council, is triggered only “if an armed attack occurs” against a state. Legal advisers, especially in the United States, have toiled ever since to rationalize exceptions for states to claim self-defense when launching an attack, based on assertion of an imminent threat.
Ironically it was the American delegation at the 1945 Charter conference that pushed for the strict threshold enshrined in the UN Charter.
The Century Foundation
New York City
David Cole replies:
Jeffrey Laurenti is correct that the UN Charter by its literal terms permits states to use military force against another state unilaterally only in response to an actual armed attack; all other uses of force are prohibited without authorization by the Security Council. However, long before the UN Charter, customary international law recognized the right of states to use military force to respond to imminent as well as actual attacks. The “anticipatory self-defense” concept was most famously articulated by Daniel Webster in the nineteenth century in a dispute regarding Britain’s attack on a US ship carrying supplies to Canada. Webster argued that the right of self-defense is limited to situations of truly imminent attacks that are “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” That test was adopted by the Nuremburg tribunals after World War II.
While some maintain that the UN Charter’s text superseded states’ authority under customary international law to respond to “imminent” attacks, others argue that the Charter must be read to incorporate that authority. The real problem with current US antiterrorism policy, however, is that it appears to have diluted the “imminence” requirement beyond recognition. The Obama administration now apparently believes that with respect to clandestine terrorist organizations, the “imminence” requirement is always satisfied, even if the group or individual targeted is not actually preparing to undertake an actual attack when the US uses military force. The Bush administration advanced a similarly elastic concept of “imminence” to argue that its invasion of Iraq, without any actual attack on the horizon, was justified, and we all know what that brought us. If “imminent” threats are a permissible ground for self-defense, they must be read narrowly, as Daniel Webster insisted. As long as the Obama administration’s targeted killing policy remains secret, we remain in the dark as to exactly how it is interpreting and applying the “imminence” criterion.