Monday, January 6, 2020

The Bethlehem Doctrine and the New Definition of Imminent

In this posting, I want to take a look at the concept of imminence as it relates to terrorist attacks in specific.  While the concept of imminence may seem obvious to most of you, as you will see in this posting, the post-9/11 use of the word imminence (or imminent) is driven by government's desire to justify its extralegal actions against other state and non-state actors.

Let's start with this tweet from Secretary of State Mike Pompeo:

Here's Mike Pompeo once again reiterating the imminence of the looming Iranian terror attack while being interviewed on CNN on January 3, 2020:

Note the exchange at the three minute mark where Mr. Pompeo is directly asked about whether the imminent attack was going to take place in the "coming days", a typical use of the word "imminent", and he deflects by stating that he doesn't wish to talk about details of the plotting that was taking place.

Lastly, here is an excerpt from an interview with Mike Pompeo on Fox and Friends on January 3, 2020:

"President Trump made the decision, a serious decision which was necessary.  There was an imminent attack.  The orchestrator, the primary motivator for the attack was Qasem Soleimani, an attempt to disrupt that plot.  You all have been talking this morning about the history of who Qasem Soleimani is.  He’s got hundreds of American lives’ blood on his hands.  But what was sitting before us was his travels throughout the region and his efforts to make a significant strike against Americans.  There would have been many Muslims killed as well – Iraqis, people in other countries as well.  It was a strike that was aimed at both disrupting that plot, deterring further aggression, and we hope setting the conditions for de-escalation as well." (my bold)

During this relatively short interview, he uses the word "imminent" four times.  Obviously, the imminent nature of the attack forms a key part of the narrative justifying the assassination of Qasem Soleimani.

Let's switch gears for a moment.  Here is the definition of "imminent" from the Merriam-Webster online dictionary:

ready to take place : happening soon

often used of something bad or dangerous seen as menacingly near

I think that most of us would agree that the concept of imminence means that something is about to happen soon.  As you will see in this posting, in our post 9/11 reality, the concept of imminence has changed, at least to those who we elect to office.

Like me, I am guessing that most of my readers have not heard of the Doctrine of Pre-Emptive Self-Defence.  This doctrine was developed by Sir Daniel Bethlehem, an international lawyer and former legal adviser to Benjamin Netanyahu's government.  It was Bethlehem who advised the Israeli government that it was legal to build their security wall through the West Bank.  As well, between 2006 and 2011, he was the principal Legal Advisor of the UK Foreign and Commonwealth Office during the government of Tony Blair .  In a during which he argued that the war in Iraq was legal because Saddam Hussein was an imminent threat to the United Kingdomas shown in this quote from his Minutes of Evidence to the UK's Select Committee on Foreign Affairs:

"The central thesis of this Memorandum is that there are significant shortcomings in the law relating to the use of force and self-defence. While these shortcomings are not a consequences of recent events, and in particular do not derive from the action in Iraq, they are nevertheless crystallised more sharply by the coincidence of large scale terrorist activity, particularly of a suicidal kind, and the proliferation of weapons of mass destruction and of its technology. In the circumstances, I am of the view that the international community has a special responsibility to undertake a considered review of international law and institutions relative to the combating of this threat."

In his paper entitled "Principles Relevant to the Scope of a State's Right of Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors" which you can find here (and I would suggest that you read it to better understand his argument), Bethlehem advises that states have a clear right to "preemptive self-defence" against "imminent attack".  This is a concept that is difficult to argue against, particularly when one considers Article 51 of the United Nations Charter which states that:

"Nothing in the present charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations."

You will note, however, that Article 51 provides for the right of self-defence only when responding to an attack that has already taken place not for attacks that may occur in the future.  As such, Bethlehem goes on to state the following:

"We conclude that the notion of ‘imminence’ should be reconsidered in light of new threats to international peace and security—regardless of whether the doctrine of pre-emptive self-defence is a distinctively new legal development. We recommend that the Government work to establish a clear international consensus on the circumstances in which military action may be taken by states on a pre-emptive basis.(my bolds)

There's the key to the Bethlehem Doctrine of Pre-emptive Self-Defense; the very concept of "imminence" needs to be redefined.  Here is a further quote from his paper:

"There is little scholarly consensus on what is properly meant by “imminence” in the context of contemporary threats. Similarly, there is little consensus on who may properly be targetable within the non- state-actor continuum of those planning, threatening, perpetrating, and providing material support essential to an armed attack....

Separate from the above, while “imminence” continues to be a key element of the law relevant to anticipatory self-defense in response to a threat of attack, the concept needs to be further refined and developed to take into account the new circumstances and threats from non- state actors that states face today." (my bold)

As such, Bethlehem has developed twelve principles relevant to a state's right to self-defence against an imminent or actual attack by nonstate actors.  The key to his entire thesis is found in Principle 8 which I quote here:

"Whether an armed attack may be regarded as “imminent” will fall to be assessed by reference to all relevant circumstances, including (a) the nature and immediacy of the threat, (b) the probability of an attack, (c) whether the anticipated attack is part of a concerted pattern of continuing armed activity, (d) the likely scale of the attack and the injury, loss, or damage likely to result therefrom in the absence of mitigating action, and (e) the likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss, or damage. The absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent for purposes of the exercise of a right of self-defense, provided that there is a reasonable and objective basis for concluding that an armed attack is imminent."

There's the key; if states redefine the very concept of "imminence", they can justify killing just about anyone based on "intelligence" which suggests that a terrorist attack could take place even if there are no details about when, where or how the attack could take place.  The Bethlehem Doctrine has been used by governments to justify the drone attacks on foreign soil that have been used as the weapon of choice since the War on Terror evolved into a battle with very few "boots on the ground". 

While we will never know for certain, my intuition tells me that Mike Pompeo's repeated and very obvious use of the word "imminent" was the Bethlehem definition of imminence, not the Merriam-Webster definition of imminence that is most commonly used by non-politicians, thus enabling him to fool his audience.  This rather Orwellian definition of imminent gives governments the justification that they to kill any of us just because they feel that we might pose a threat and that is a very, very scary prospect.

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