The purported justification by the Administration of President George W. Bush for the War in Iraq has caused largely theoretical dotrines of international law to take on immediate practical significance. In light of the developing situations with Iran, North Korea and certain other so-called "axis of evil" or "rogue states," such matters have become even more pressing. The basic question for Congress and others is whether United States national security or defense strategy should include possible resort "preemptive war" (attacking another nation to forestall an imminent attack on the United States) and/or "preventive war" (attacking another nation on the basis of a perceived future threat).
1. Preemptive War. In 2002, President George W. Bush inaugurated a new official national security strategy moving away from previous emphases on deterrence and containment to much more aggressive stances. "Given the goals of rogue states and terrorists, the United States can no longer solely rely on a reactive posture as we have in the past," "[w]e cannot let our enemies strike first," and "[n]ations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack." Beyond that, according to the new Bush gospel, "even if uncertainty remains as to the time and place of the enemy's attack," the United "will, if necessary, act preemptively." Subsequently, the preemption doctrine was one of the two grounds on which the Bush Administration sought to justify the invasion of Iraq (the other being the asserted continuing viability of previous Security Council resolutions, in particular Resolution 1441 of November 8, 2002, after breach by Iraq of the conditions of the 1991 cease-fire).
The new Bush doctrine purported to invoke "long-standing principles of self-defense." Under preexisting United States and international law, however, any "preemptive war" authority must be restricted to cases of clear, present and imminent danger, and can be exercised only when there are no other effective means to deal with the threat. In the 1986 Nicaragua case, the International Court of Justice held that the "inherent right of individual or collective self-defense" under article 51 of the United Nations Charter is triggered only by acts of armed force "of such gravity as to amount to" an actual armed attack conducted by regular forces. Moreover, before the U.N. Charter, while there was some recognition of a customary international law right to use force in "anticipatory self-defense" or "preemptive self-defense," it was similarly limited. The classic formulation of the doctrine is found in a statement by United States Secretary of State Daniel Webster in response to the Caroline Affair in 1837. Under the Caroline test, preemptive use of force must be both: (a) "necessary" in the sense of being instant and overwhelming, leaving no choice of means and no time for deliberation; and (b) "proportionate" to the type and magnitude of the threat, not excessive.
Crises may well arise where resort to unilateral preemptive use of force is appropriate as a form of anticipatory self-defense. The invasion of Iraq in 2003 was, however, not such a case. As many contended at the time and has become widely recognized in retrospect, the requisite imminent threat was not present (or even reasonably thought to be present), and the scope of the military action was wildly disproportionate to any perceived threat. Accordingly, the Bush position on preemption does not appear to have been legally, morally or practically justified – certainly not as applied in Iraq.
2. Preventive War. Critics argued that the Bush national security strategy announced in 2002, with its emphasis on threats that remain inchoate, went beyond creditable legal doctrines of preemption to embrace the concept of "preventive war." Such arguments gained impetus when the Bush strategy was reaffirmed and expanded four years later. After summarizing the 2002 formulation, the 2006 version stated that "[t]he place of preemption in our national security strategy remains the same." It proceeded, however, to proclaim even more emphatically that "we do not rule out the use of force before attacks occur, even if uncertainty remains as to the time and place of the enemy's attack," since "[w]hen the consequences of an attack with WMD are potentially so devastating, we cannot afford to stand idly by as grave dangers materialize." While originally the Bush preemptive doctrine was advanced to justify invasion of Iraq, the most likely target later became Iran, which the 2006 statement identified as presenting the United States with its greatest challenge. Since then, the specter of North Korea has also taken on increased prominence.
The concept of preventive war was condemned by the Nuremberg Tribunal, which concluded that leaders who engage in such wars should be held individually liable for war crimes. In particular, the Nuremberg Tribunal rejected arguments by the German leaders that they had been compelled to attack Norway and Denmark in self-defense "to prevent" a future Allied invasion. The Tribunal concluded that these attacks violated customary law limits on self-defense and constituted wars of aggression. Then too, there is the oft-quoted poignant remark by President Harry S. Truman in rejecting a similar argument in a 1950 debate on a preemptive strike against the Soviet Union that, "you don't 'prevent' anything by war...except peace."
Preempt Hypocrisy.
Obviously, in an age of nuclear weapons and terrorism, there is an inherent tension endemic to the concept of anticipatory self-defense. On the one hand, if a nation must wait for an outright attack with nuclear or even conventional weapons before taking defensive action, then any such right may be meaningless. On the other hand, a regime that allows any country to attack any other country from which a real or potential threat is perceived would come perilously close to a Hobbsian unregulated state of nature (where life is "nasty, brutish and short").
Especially in this era of WMD and terrorism, the President and Congress must have the capacity to do what is truly necessary to
defend this country. This should include the power and authority to engage in unilateral preemptive use of force necessary and
proportionate to the imminence and magnitude of the danger involved. Doctrines of preemptive or anticipatory self-defense should
not be summarily rejected because they have been misstated by the Bush Administration and misapplied in Iraq. While preemptive
strikes may sometimes be justified, preventive war in response to inchoate threats is a very different concept that has been
broadly condemned and has no place in United States national security strategy. |
* * * *
For further information, see Iraq War discussion papers.
|
