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Opponents of the Iraq war, including Security Council nations such as Russia, have claimed that it violates international law. And, as Michael Dorf points out in a recent column for this site, it appears that they are correct.

Unless genocide is occurring, war, under international law, requires either the justification of an imminent armed attack (in which case, it counts as legitimate self-defense under the U.N. Charter) or U.N. approval. The U.S. has neither.

But that leads to further questions: Especially following the September 11 terrorist attacks, is the international law of self-defense outmoded? Is it fair to apply this law to the U.S. in this particular situation, given that the reasonable fear of terrorism plays a large role in the Iraq war?

And, given that this very same fear of terrorism may deter potential allies from joining the U.S. in its campaign, was it unfair to require the U.S. not to go to war, unless and until it could procure U.N. approval?

An Outmoded Concept of Self-Defense

One of the major reasons the U.S. is waging war on Iraq is fear that its government may use weapons of mass destruction on U.S. allies in the region. In addition, the U.S. fears that Iraq might be turning such weapons over to Al Qaeda, or another terrorist group, for use against the U.S. or its allies worldwide.

In short, the U.S. fears Iraq will abet an Al Qaeda attack on the U.S. or its allies. And this fear, I believe, is reasonable - even despite the apparent lack of any clear connection yet proven between Iraq and September 11.

Iraq appears to possess weapons of mass destruction. Al Qaeda has declared its willingness to not only obtain, but actually use, such weapons, and there is evidence it has been seeking them out, and continues to do so. Prior to the war, there was reason to think Al Qaeda, through Middle East contacts, could arrange to receive such weapons from Iraq.

In addition, (while this point is very debatable) prior to the war, there was also reason to think Iraq might be inclined to provide such weapons; after all, Saddam Hussein hates the U.S. Some have argued that he wouldn't cooperate with Al Qaeda because his interests are solely regional, but of course, the U.S. plays a large role in the region, and betting on Saddam's disinclination covertly to hit the U.S. at home would be a dangerous game. (If more time had been allowed to pass, the attack might have involved nuclear material.) Also, Al Qaeda was, and perhaps still is, able to pay large sums; it's possible that Saddam, even if on the fence, could be bought.

As noted above, the U.N. Charter states that self-defense is legitimate only in response to an armed, imminent attack. Thus, it provides no way for a country to address this kind of reasonable fear of a future attack, no matter how devastating such an attack might be.

But that concept of self-defense seems designed for a world in which armies in full-dress uniform confront each other face-to-face, with each side able to easily ascertain that the other is armed and certain to attack. And that, of course, is no longer our world since September 11, 2001.

Terrorist groups such as Al Qaeda have no uniform or flag, and conceal their weapons. And we often can't tell when they will attack; they plan secretly, over the course of years. Similarly, we often can't tell when, or if, nations like Iraq have provided weapons of mass destruction to groups such as Al Qaeda.

In this new context, adhering to the imminence requirement for self-defense makes little sense. Certainly, it makes no sense in a campaign against a terrorist group. And to a lesser extent, it also makes no sense in a campaign against an adversary who is reasonably believed to be a potential aider and abettor of future terrorism.

In traditional conflict, there are numerous backstops that can substitute for a country's resorting to self-defense. But when terrorists enter the equation, and when the terrorists may get access to weapons of mass destruction - as Al Qaeda might have, with Iraq's help - the backstops all fail.

For example, there is the obvious backstop of diplomacy. But that doesn't necessarily work when terrorist groups are a factor. Al Qaeda itself won't negotiate. And while Iraq was at least somewhat willing to negotiate, it might also have been handing off anthrax, VX nerve gas, or other weapons, to Al Qaeda at the same time.

Granted, the impending war probably had greatly increased the risk of just such a handoff,. However, such a risk was only temporary, until the war could begin - and that risk is another reason why diplomacy should happen quickly in the modern age. Otherwise, the adversary enjoys a kind of notice - and an opportunity to act preemptively - that the target of terrorism with never have..

The U.S. was right to try to work things out in the Security Council, but it was also right not to allow diplomacy to take forever, given this elevated risk. (Ironically, the U.N. Charter's concept of self-defense might even have authorized a preemptive Iraqi attack on the U.S. in the face of the U.S.'s own imminent armed attack - although not, of course, an attack with illegal weapons of mass destruction. Given that fact, can anyone question that the Charter's definition of self-defense must change?)

A second backstop that can avert the need to resort to self-defense is cooperative domestic law enforcement among allies - for instance, asking the country that hosts terrorists to crack down on them. But what if the rulers (like Afghanistan's Taliban) are not allies, but rather willing hosts, or are even willing to train Al Qaeda members, as Iraq reportedly did?

Or what if many of the terrorists cannot be found even by domestic law enforcement? Then the threat remains, and self-defense reverts to being the only option. The war on Iraq would not have had to take place if the war on Al Qaeda had been entirely successful. But it wasn't

A third possible backstop is deterrence - and in particular, "mutual assured destruction": If you nuke us, then we'll nuke you, and everyone will die. The logic may still work between India and Pakistan, for example, or between the U.S. and Russia. But it doesn't come close to working between the U.S. and Al Qaeda, or between the U.S. and countries that may use Al Qaeda as a front to attack the U.S..

Al Qaeda has fully accepted that its actions may be suicidal, and Osama bin Laden has declared his intent to use weapons of mass destruction, if possible. So much for "mutual assured destruction" as a deterrent when it comes to Al Qaeda itself. Kamikazes cannot be deterred.

And what about deterring Iraq? That leads to a fourth possible backstop - international accountability. The problem is, though, that the very presence of groups like Al Qaeda decreases such accountability.

Accountability is possible, but difficult. Anthrax and smallpox molecules aren't shaped like the countries where they were manufactured; suitcase bombs don't come with convenient luggage tags identifying their port of origin. Who, exactly, funded September 11? Probably, no one but Osama bin Laden and his financiers knows the precise answer.

With such backstops diminished, and with terrorists such as Al Qaeda a new force in the world, there is all the more reason for the U.N. to take aggressive steps to ensure world peace. Yet the U.N. has not responded respond with a strong assault against terrorism. Nor has it amended its Charter, to take account of the new world situation, and to redefine what "self defense" means in an age of terrorism. No wonder President Bush has challenged the UN to prove its "relevance."

Revising the Definition of "Self-Defense"

What should the right of self-defense look like, if it were to be revised to take all these realities into account?

In making suggestions, my key point is not that any of my recommendations is the best solution. Rather, it is that some revision of the definition of self-defense is necessary.

Regardless of how the definition of self-defense might be revised, it seems clear that the imminent armed attack requirement must go. Yet it also seems clear that the mere perception of a threat should not be enough - for that, as Michael Dorf pointed out in his column, would be profoundly destabilizing to the world order.

So when should self-defense be warranted? Certainly the gravity of the threat, and its probability, should matter. So should the interests of all affected persons - both citizens of the attacking country, citizens of the attacked country, and indeed, all the world's citizens.

It's immoral and inhuman for a country not to consider noncitizens' lives in the calculus. In the end, even self-defense - indeed, arguably even self-defense that does indeed respond to an armed attack - can be wrong if it costs too many lives.

It might also be a good idea to limit the revised concept of self-defense to situations involving actions by stateless terrorists, although - as Joanne Mariner has pointed out in a column for this site - the term is very difficult to define.

Of course, nations have an alternative to invoking the U.N. Charter's self-defense right; they can go to straight to the U.N. Security Council. Accordingly, the U.S. has suffered a great deal of criticism for not giving diplomacy a longer time to work, and thereby gaining the UN's endorsement when it comes to the war on Iraq. Although some of that criticism is warranted, it needs to be put in context.

First, as noted above, the U.N., in the modern world, must be much stronger than it has been, for all the backstops on which it might have relied are gone when it comes to terrorism groups eager to use weapons of mass destruction, and the nations that both possess such weapons, and are inclined to abet such groups.

Yet the U.N. hasn't risen to the challenge. It did not, for instance, disarm Saddam despite having over a decade to do so. To take another example, it has not modified its structure so that force can be more frequently and more legitimately authorized, at least against terrorists.

With so many veto powers, it's hard to avoid a veto; look at how France alone was able to wield so much power. And the five veto powers are no longer the world's most powerful countries. (Where is India? Are Britain and France really among the world's five most powerful? Given contemporary issues, how can it be that no Arab or Muslim country is a veto power?) Given these structural considerations, can anyone really claim that the Security Council's verdict on a potential use of force is truly, in any way, the world's verdict?

Granted, the Security Council's set of veto powers are not only slanted, but also slanted to, if anything, favor the U.S. That may lead to an objection: Shouldn't the U.S. have therefore been able to persuade the U.N. to act now, if it was really correct that its national security was at issue?

Not necessarily. Any country in America's position might have the same problem.

The problem is this: America might as well have targets painted on each of the fifty states now, when it comes to terrorism. Any ally that joins the U.S. paints a target on itself too - as the British people have been repeatedly reminded, with warnings from their government that a terrorist attack on Britain is now virtually inevitable. That is a hard pill for a nation to swallow, and a hard responsibility for a leader to bear.

Is this cowardice? Not necessarily. One of a nation's primary missions is to protect its people. The same reason the U.S. is fighting may lead other countries to stay out of the battle. Isolationism can be a form of self-defense, too.

Other nations thus may hope the U.S. and Britain now will draw all of Al Qaeda's, and other terrorists', fire. But it is not fair to suggest that, in this position, American and its allies cannot fire back, or even fire pre-emptively if they can see what is to come.

It's Not Just the U.S.'s Problem

In the end, the problem is not the United States and Britain versus the world. The problem is the world's - and in particular, the U.N.'s - need to adjust to the modern era.

The law of self-defense must allow countries to protect themselves against genuine, modern dangers. If it isn't changed to do so, it will inevitably be disregarded - and not only by the U.S.

President Bush is often perceived as sounding arrogant when he suggests that America, in particular, does not need the U.N.'s permission to act when it comes to self-defense. That's partly because he seems to imply, wrongly, that the U.S. alone should have special rights other countries don't have, by virtue of its world power.

The truth is, though, that self-defense is a right that every country naturally has. It is also a right that the U.N. charter recognizes - but then construes so narrowly, that it rules out the gravest threats today's world poses.

The right to self-defense must have contours that make it real, and effective, in the modern world - with its realities of stateless terrorism, and stateless terrorists' increased access to weapons of mass destruction.

The Bush Administration could certainly have been more adept in its negotiations to try to ensure Iraq's peaceful disarmament. It could also have allowed diplomacy to go on longer, as many wanted. And it could have made much more clear that the deficiencies in international law affect other countries, too, not just the U.S. Instead, it seems to have unnecessarily alienated much of the world.

But it's important to remember that, to a large extent, the U.S. didn't assume the position it is now in. Instead, it was put there, by Al Qaeda, and by the likely willingness of outlaw regimes like Iraq - and North Korea - to provide terrorists with weapons of mass destruction.

What distinguishes the U.S., then, may simply be historical happenstance, not singular arrogance. That is, the U.S. may have the misfortune of being the first nation both to confront the failings of the Charter, and the U.N. itself, while having the power to defy both.