Surprise is not a new military tactic; quite the opposite. But it is seldom valued much in statecraft. If the question is how to keep an adversary off balance and on the back foot, then the answer must be to do the unexpected, repeatedly. When it comes to war there is a template for everything, a doctrine for everything, a history for everything, a parallel which enables lessons to be learned (or not). But we learn, again and again, that the critical element is surprise. In an era of state competition, the edge will go to the states most capable of surprising. Can the West recover a culture of surprise, where it not only takes the initiative but is comfortable with being unpredictable?

A great surprise will get you into the history books. The Trojan Horse. Robin Hood’s ensnarements of the Sherriff of Nottingham’s men. The ambush in the Khyber Pass of the retreating British army contingent of over 16,000 which left only one survivor. The sabotage of the heavy water facility at Telemark. Pearl Harbour. Every dawn attack on an enemy camp contains an equal level of romance and catastrophe. The Russian General Mikhail Skobelev (1843-1882) argued you could not conquer without surprise. Known as the ‘White General’ because he wore a white uniform and rode a white horse, he was famed during his short lifetime for daring, tactical brilliance and brutality on an epic scale during the Russian expansion into Central Asia and the Russo-Turkish War of 1877-78. But many of these examples are of tactical surprises, not strategic ones.

A surprise depends on the ability to imagine the unexpected and make it happen. It requires bold and creative thinking, careful planning, secrecy, understanding of the opponent, and predictability on their part. The good surprises have style. A surprise means going first. It will almost always entail a risk, because by definition it will not be a result of consultation with your adversary. And this will require courage, and the preparedness to lose. It can be high risk, and not all surprises work.

In terms of foreign and defence policy, a strategic surprise can knock an adversary completely off balance. It follows that to gain competitive advantage a state needs to be good at surprising competitor states, and good at managing the risk that it, in turn, could be surprised. But if surprise means going first, states or alliances of states need to do two things: act pre-emptively and keep the surprise secret. They also need to be prepared for failure and able to absorb the consequences.

Can democracies or multilateral organisations surprise anymore, given the need for consensus, debate and transparency? Can a decision taken collectively ever be a revelation? More specifically, is this possible currently in a Western state, or in complex alliances such as NATO or the EU? Is it now the case that surprises happen to the West rather than the other way around?

Liberal democracies are governed by regulation and consensus. Their governments set, and must be seen to be following, rules which are publicly known. They require a level of consensus within both the legislature and public opinion in order to act. This observation of a set of rules (or laws, or doctrine) makes them predictable, and the necessity of public debate means there is little that cannot be observed by an adversary. It is likely that a Western democracy will always be seen coming. A recent innovation in law is the requirement for, and entitlement to, transparency, made real through Freedom of Information legislation and vigorous public accountability. Secrecy is often assumed to be something resorted to in order to cover up unscrupulous actions rather than something any state must maintain in order to act unpredictably. We in the West have become so unused to taking the initiative that we are fearful and mistrustful of our actions when we do.

In the case of Ukraine, the balance sheet on surprises is instructive. Putin surprised most of Europe by actually doing exactly what he had said he was going to do — in as many words — in his July 2021 essay. It was surprising to Western eyes not simply because it was barbaric, but because it was a disruptive and arguably irrational act which did not have consensus and which broke the rules. The UK and US sought repeatedly to reduce Russia’s capability to surprise through the release of intelligence that anticipated it (thus reducing the shock, and in some cases the effectiveness). But the idea of invasion was so reckless that it remained inconceivable for many. Once Russia invaded, however, it lost the element of surprise. In part this was through a failure to plan repeated tactical surprises, but in part it was because Ukrainians, and NATO, surprised Russia back with the scale and ferocity of their resistance. 

The West’s actions before Russia invaded — monitoring and warning Russia but taking no decisive action — were completely unsurprising. But the speed and coherence of its response was not, in the sense that sanctions have been applied swiftly with the Western alliance presenting a relatively united front. While this apparently startled the Russians  — the Russian Foreign Minister Sergei Lavrov said no one could have predicted their scale —  it was the West itself that was the most surprised. Indeed the fact that Putin and Lavrov were shocked says much about the extent to which the West’s capacity to act has been degraded. The collective muted response to the litany of Russian aggressions in Europe over the past fifteen years, including the use in the UK of radiological and chemical weapons, may have led Russia to conclude that an invasion of Ukraine wouldn’t be any different.  But perhaps we should accept a democracy that takes collective decisions can at best only be surprising in the strength and scale of its response.

If this is the case, should liberal democracies concede this is the only style of surprise they can deliver, or should they revisit the possibility of surprise through pre-emptive action? This is often described as ‘escalatory’, but this description may obscure the fact that it is quite possible a pre-emptive move could be de-escalatory, or at the very least, less escalatory than doing nothing and allowing natural escalation by the opponent. The one who acts first sets the time and place and forces the opponent to choose whether to escalate or not. The advantage can be lasting.

With the increase in defence expenditure following the invasion of Ukraine, attention naturally focuses on materiel: what critical equipment capabilities will be decisive in combat? Has the return to state-on-state competition meant that different capabilities will be needed? What does the Russian performance say about ‘platforms’ or information warfare? There is much less debate about the most important capability of all: the ability to make good decisions, especially about self-defence.

NATO is a defensive alliance, but how do we square this with the occasional need for ‘first mover advantage’?  The aspiration is that NATO’s decisions should be taken at the ‘speed of relevance’ (a term variously credited to former US secretary of defense James Mattis and the former chairman of the Joint Chiefs of Staff, General Joseph Dunford, and used in 2018). But no-one really knows what it means. It appears to imply a streamlining of processes reducing the opportunities for inertia, promoting an ability to learn quickly and change tactics and equipment as necessary. General Dunford used it to mean getting the right information to senior decision-makers swiftly, so that they could take the right decisions in increasingly complex situations. The aim was to make the US decision-making cycle faster than that of their opponents, leading to ‘decision-superiority’. But this is still, essentially, tactical; it happens once the fight has started and is focused on how to win. What if relevance means acting before you are attacked?

The question of whether self-defence can be a pre-emptive act, and how far in advance of an attack a deterrent act can legitimately be carried out, immediately disintegrates into complex legal interpretations. Domestic legislation demonstrates that it essentially depends on the circumstances: the UK’s Crown Prosecution Service and National Police Chiefs Council have published a joint public statement on the topic entitled ‘Householders and the use of force against intruders’ (2018).This states that if householders do what they honestly and instinctively think is necessary in the heat of the moment, this is the strongest evidence for having acted lawfully and in self-defence. On the question of pre-emptive strikes, it states that: ‘There is no rule in law to say that a person must wait to be struck first before they may defend themselves.’ And on the question of reasonable force, it states that: ‘A person may use such force as is reasonable in the circumstances for the purposes of (in the alternative) self defence, defence of another, defence of property, prevention of crime, and lawful arrest.’ Prevention of crime strongly implies acting before the crime is committed.

The need to act before the crime was committed became particularly critical at the height of the ‘war on terror’. The 9/11 attacks were an overwhelming surprise; it is striking to reflect that the first, and so far only, time that NATO’s Article 5 has been invoked was in response to an attack on New York by a terrorist organisation based in Afghanistan. It led to a NATO deployment in Afghanistan, a country with no border with NATO and of little strategic value. The essential clause of a defensive military alliance of nation states has never been invoked against a nation state. US and UK action in Afghanistan was classed as ‘anticipatory self-defence’.  After this initial response phase, pre-emptive action against terrorist targets became the norm. Self-evidently, it could not be argued that the best form of defence was to wait for the next terrorist attack in order to respond again. Terrorists had to be disrupted before they acted.

This brought to the fore the legal debate about the level of threat necessary before advance action could be justified as self-defence. Western governments were anxious not to create a doctrine of anticipatory self-defence which was open to abuse. Article 51 of the UN Charter recognises a state’s ‘inherent right of individual or collective self-defence if an armed attack occurs’.  The unhelpful lack of clarity has meant continuing legal debate about whether a pre-emptive action could be considered a legitimate act of self-defence, or whether Article 51 was only applicable in response to an actual armed attack. Earlier legislation allowing for ‘anticipatory self-defence’ already existed. International law refers back to the ‘Caroline affair’ of 1837, an incident where British forces sunk a vessel of Canadian rebels in the Niagara River in ‘self-defence’. The thorny issue was about the threshold for action: while in the international legal debate post 9/11 the view that states had a right to act in self-defence in order to avert the threat of an imminent attack — often referred to as ‘anticipatory self-defence’ — was widely, though not universally, accepted, the issue hinged on how imminence might be defined.

Sir Daniel Bethlehem QC, a former legal advisor the UK’s Foreign and Commonwealth Office, attempted to refine and develop the concept of imminence by setting out sixteen ‘principles relevant to the scope of a state’s right of self-defence against an imminent or actual armed attack by nonstate actors’, the eighth of which shows the complexity of determining imminence:

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-defence 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-defence, provided that there is a reasonable and objective basis for concluding that an armed attack is imminent.

In other words, it was necessary to believe that an attack was being planned even if you didn’t know all the details, and to prove that it was the last possible moment to do something about it before any action you took to stop it could be considered lawful.

The principle of acting in anticipatory self-defence formed the legal basis for pre-emptive disruptive action taken by the US and its allies against Islamist terrorist groups, most recently the large-scale military action to destroy external attack planning elements of Islamic State and Al-Qaeda in Syria. It continues to be used to target members of terrorist groups who are assessed as a threat. These advances in the doctrine and practice of pre-emptive action against non-state actors led to the material degradation of Al-Qaeda. Whatever else was wrong with the strategy and conduct of the war on terror, without these developments Al-Qaeda would have likely remained beyond the reach of the US and its allies, and many more attacks would have been conducted in the West.

It cannot be denied that the confidence of NATO member states in pre-emptive action was damaged by experiences in Iraq and Afghanistan; it is precisely because a US-led coalition invaded Iraq that the West finds it so difficult to build consensus against the Russian invasion of Ukraine. That does not mean it should conclude it was the pre-emptive action that was the problem. It is also clear that the vigorous use of self-defence as a legal basis did create a precedent (as had been originally feared), one which has been transparently exploited by Russia. When the Russian Permanent Representative to the United Nations notified the UN Secretary-General that the military action to invade Ukraine had been ‘taken in accordance with Article 51 of the UN Charter in the exercise of the right to self-defence’, it was mirroring earlier notifications by the US and allies. But for this to meet the criteria, Russia would have to have been under imminent threat of an armed attack from Ukraine, something for which there was no evidence. Putin’s argument was a longer term one: that a hostile ‘anti-Russia’ was developing on its borders which would in time threaten Crimea and Donbass, leaving no option but to act now in order to defend Russia and the people of Donbass.

Ironically therefore the argument for anticipatory self-defence in the case of Ukraine has been used by Russia to justify the invasion, but was not used by the West to deter an invasion. When did the Russian plans to invade Ukraine pass the point of imminence? Why was there not a discussion in these same terms before the invasion? Until now, the development of the argument about imminence has been for and about actions against non-state actors. The question is the extent to which they can be applied to state actors. It could be argued that the Russian troop build-up on the border of Ukraine passed the point of becoming an imminent threat in the second half of 2021. There doesn’t seem to have been any serious consideration of the threshold for anticipatory self-defence.

This is an issue of policy choices, anticipation and planning, and a bold move is not necessarily a bad one. While the West’s confidence in a policy of pre-emption has been damaged, it would be foolish to discount it as a responsible tool of statecraft given what we have seen in Ukraine. For all the many negatives, looking at what worked in the war on terror should prompt liberal democracies and NATO members to re-visit pre-emption as a means to deliver strategic surprise to adversaries. They would then no longer be restricted to scale of response as a means of surprise, but would have the inestimable advantage of being able to choose the timing.