Why We're Allowed to Hit Back

Friday, April 30, 1999

The U.S. military strikes against terrorist targets in Afghanistan and Sudan last summer raise important questions about the resolution of conflict in the post–Cold War world. Specifically: When is the United States justified in taking preemptive military action against a terrorist group located within the sovereign territory of another country? And do rules exist to govern such decisions, by which the conduct of states may be judged, if not controlled?

States are not free to use force as they wish. The United Nations Charter binds them “to refrain from the threat or use of force against the territorial integrity or political independence of any state.” The charter was intended to overturn the notion that force could be used as an extension of diplomacy to advance a nation’s interests. Force may still be used in self-defense. The charter expressly provides that “nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”

The United States has defended its use of force in Afghanistan and Sudan as consistent with these rules. But the U.S. interpretation of the rules differs from that of the International Court of Justice and most other states, and its unilateral use of force has provoked frustration because the United States is able to disregard views that contradict its position. We did not use force in Afghanistan and Sudan to gain control over foreign territory or policies—but to defend our nationals and interests from terrorists. Nor did we threaten the political independence of these countries. We acted to hamper their authority to allow terrorist groups on their lands to prepare attacks on U.S. interests with impunity.

The United States has consistently claimed that its basis for using force in these cases is its inherent right of self-defense. But international lawyers have argued that there are numerous limitations on this “inherent” power. They argue, for instance, that self-defense may only be exercised after an “armed attack” occurs on the territory of a member state. They further argue that such action may only be undertaken by forces operating under the control of the state in which the armed response is undertaken. These limitations, which have no support in the law of self-defense—which predates the U.N. Charter—would render the United States incapable of responding to the most realistic military threats it faces. The United States therefore has consistently rejected these limiting concepts, claiming that

  • Self-defense allows a proportionate response to every use of force, not just “armed attacks.”
  • Armed attacks permitting self-defense can occur anywhere, not just on U.S. territory.
  • Attacks need not be by regular or even irregular forces of the state in which military action is taken because defensive measures may be taken in any state that cannot or will not prevent anyone in its territory from attacking the United States.
  • Defensive measures may be taken to preempt attacks, as in Sudan, where necessary for deterrence.

Under these standards, the Clinton administration acted lawfully in attacking terrorist camps in Afghanistan because the legal and de facto governments there were unable or unwilling to control the terrorist group led by Osama bin Laden. That group is responsible for attacks on U.S. embassies in Kenya and Tanzania and has promised further attacks on American targets.

The fact that no chemical weapon attack had yet occurred in the United States did not make the strike in Sudan illegal.

With regard to Sudan, the Clinton team claims the factory it bombed made a chemical to be supplied to bin Laden for use in weapons directed against U.S. targets. The fact that no chemical weapon attack had yet occurred did not make the U.S. military strike illegal. Given Sudan’s support of terrorist groups, it is reasonable to conclude that it was unwilling or unable to discharge its international responsibility to prevent the chemical from being produced. Furthermore, the action was carefully limited to the destruction of the specific building in which the chemical involved was purportedly made. If the United States got its facts right, the preemptive strike was therefore a reasonable measure for deterring potentially catastrophic attacks on U.S. targets.

Washington acted on these standards, knowing it has the power as a permanent member of the U.N. Security Council to block the adoption of any measure aimed at forcing it to abide by any standard whatever, including any decision by an international court that might conclude that the United States has behaved illegally. This power is an essential element of the security system to which the United States and all other nations agreed in the U.N. Charter, and the United States is perfectly justified in relying on its rights.

Nevertheless, the United States must be concerned about the views of other states, especially with regard to the validity of U.S. claims. It has a substantial interest in enforcing the charter against states that use force aggressively, such as Iraq. It is disturbing, therefore, that Secretary of Defense Cohen initially announced—on the basis of erroneous intelligence—that the factory in Sudan did not make pharmaceuticals. It is also regrettable that the Clinton administration has been unwilling to cooperate with a thorough evaluation of its factual premises concerning the plant. After military action is taken, Washington must either justify its actions or admit when mistakes have been made. For instance, when an Iranian civilian airliner was mistakenly taken for a military plane and shot down by U.S. forces, the Bush administration initially made erroneous claims about the incident. When the facts became clear, however, President Bush apologized for that tragic mistake, and the United States paid damages. And to justify a U.S. attack on Libya in April 1986, President Reagan revealed evidence that proved Libya’s involvement in the bombing of a Berlin disco, even though the revelations compromised U.S. intelligence capabilities.

The United States has properly refused to surrender any aspect of its inherent right of self-defense to those who would deny the capacity its power confers or who regard even defensive force as evil. This posture demands that Washington accept the consequences when it errs. If the bombing in Sudan was wrong, or if the nation is unprepared to disclose the evidence that supports its conduct, the United States must accept responsibility or otherwise deprive itself of the right to rely on the charter in attempting to control the illegal use of force by other states.