The "Bush doctrine": can preventive war be justified?

• Author: Delahunty, Robert J.

Despite the Bush Administration's successes against al Qaeda, (1) we continue to live in a dangerous world. We are exposed to the risk that hostile states or terrorist groups with global reach might attack our civilian population or those of our allies using weapons of mass destruction. (2) In such circumstances, it might seem natural for U.S. policymakers to consider preventive war as a possible tool for countering such threats. (3) In the past leaders of democracies have not shied away from the prospect of preventive war. Winston Churchill, in his memoirs of the Second World War, found "no merit in [statesmen] putting off a war" when "the safety of the State, the lives and freedom of their own fellow countrymen, to whom they owe their position, make it right and imperative in the last resort." (4) Yet in the current climate of opinion, such thinking would be controversial-in large part, no doubt, because of the continuing disputes over the normative, strategic, and legal wisdom of what has been called the "Bush Doctrine."

The "Bush Doctrine" refers to the position set forth in the National Security Strategy for 2002:

We must be prepared to stop rogue states and their terrorist clients before they are able to threaten or use weapons of mass destruction against the United States and our allies and friends. 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. The inability to deter a potential attacker, the immediacy of today's threats, and the magnitude of potential harm that could be caused by our adversaries" choice of weapons, do not permit that option. We cannot let our enemies strike first. (5) Even critics of the Iraq War should acknowledge that preventive war ought to remain among the strategic options available to the new Obama Administration. (6) Reliance on the United Nations Security Council alone to combat terrorism, halt the proliferation of nuclear weapons, or intervene to prevent genocide and "ethnic cleansing" would be obvious folly. (7) The Council has proven to be all but hapless in confronting such challenges, and, despite persistent, but unavailing, calls for reform, will remain so. (8) The lesson of experience is that "when ... the Great Powers and relevant local powers are in agreement ... the elaborate charades of the Security Council ... are unnecessary. When those powers do not agree, the U.N. is impotent." (9) Hence, although Security Council authorization for the preventive use of force might well be desirable for policy reasons, (10) dozens or even hundreds of wars have been fought during the Council's existence without its permission and in apparent contravention of U.N. Charter use-of-force rules. (11) To take but one conspicuous post-Cold War example: The United States and its NATO allies fought a major war in the center of Europe in 1999 against Serbia, a Member State of the United Nations, yet they acted neither pursuant to Security Council authorization nor in individual or collective self-defense, as set forth in Article 51 of the U.N. Charter. (12)

The actual conduct of states thus calls into doubt whether Charter use-of-force rules remain legally binding, (13) or, even assuming that they are, whether compliance with the Charter's ineffective legal norms must trump all other considerations bearing on the use of preventive force. Walter Slocombe, Deputy Secretary of Defense in the Clinton Administration, pointed out the consequences of such legal absolutism:

[T]o require United Nations approval as an absolute condition of the legitimate use of military force is to say that no military action of which Russia or China (or, in principle, France, Britain, or, indeed, the US) strongly disapproves is legitimate, no matter how broadly the action is otherwise supported, or how well justified in other international legal or political terms. (14) We argue that there are deep and pervasive similarities between, on the one hand, a preventive war undertaken to protect American or allied civilian populations from an emerging threat that weapons of mass destruction might be used against them and, on the other hand, a humanitarian intervention--like that in Kosovo--to protect another population from genocide, forcible deportations, or other grave human rights abuses. In both circumstances, the intervening powers would have a protective purpose in view. In the first case, the objective of the intervening powers would be the protection of their own people; in the second case, the objective would be the protection of another people or at-risk group. In both cases, the intervening powers would also be employing force to counteract a threat of violence--a threat that would be large in scale and gross in illegality in either context. In the first case, the threat would involve intentional mass attacks on non-combatants. In the second case, the threat would involve severe and widespread danger to basic human rights. The targeted states in both cases would have wrongfully subjected others to unacceptable harm or risk of harm--either internally, by failing to protect their citizens from genocide and other gross human rights violations, or externally, by posing security threats to the citizens of other states, whether by acquiring weapons of mass destruction themselves for aggressive purposes, or by sheltering (or failing to control) terrorists willing to use such weapons. Fundamentally, the aims of both the preventive and humanitarian interventions in question are to uphold the "strong global ethic" against the mass killing of civilians and other equally catastrophic events. (15)

The characteristic objections to both preventive war and humanitarian intervention are also essentially the same. According to critics, engaging in either activity will destabilize the international order by creating a dangerous precedent that will lead to further conflict, violence, and disregard for positive international law. Moreover, critics argue that the professed justifications for such activity serve all too easily to conceal some other motive. Nations bent on imperialism or hegemony will use humanitarian intervention or preventive war as a pretext for conquest or control. (16) But even when these concerns are reasonable, the options provided by the U.N. Charter system to resolve them are unsatisfactory. The Charter attempts to drive the level of international violence to zero, despite the possibility that the use of force will improve global welfare by stopping human rights catastrophes or heading off rogue states that are likely to cause greater harms in the future.

Viewed in this light, preventive war, in appropriate circumstances, can be justified for reasons that are closely analogous to those usually offered to justify humanitarian intervention. The key difference is that in preventive war the intervenors protect their own populations, whereas in humanitarian intervention the intervenors protect the target state's population. Although critics of preventive war tend to be sympathetic to humanitarian intervention, the underlying logic for both uses of force is substantially the same. To be sure, even in the contemporary world, preventive war remains rooted in self-defense, whereas humanitarian intervention is rooted in the defense of others. This difference helps explain why nations, which characteristically pursue their own interests, are more inclined to wage preventive war and insufficiently inclined to engage in humanitarian intervention. Nonetheless, it cannot be an objection to a U.S.-led preventive war that it would aim chiefly at protecting the lives and safety of the American people.

In this Essay, we first explain what we mean by "preventive" war, and how it is distinguishable from "preemptive" war. Then we briefly consider whether, as critics of the Bush Doctrine allege, the War in Iraq was virtually unprecedented in the nation's history or was, instead, one of several major conflicts fought by the United States that could fairly be described as preventive wars. Finally, we shall recommend certain normative guidelines and criteria for policymakers to follow in deciding whether to initiate a "preventive" war. As previously indicated, these criteria will resemble those that are often suggested for justifiable humanitarian interventions.

1. PREVENTIVE WAR AND AMERICAN DIPLOMATIC DOCTRINE

   Article 51 of the United Nations Charter makes an exception to the prohibition against the use of force not compelled or authorized by the Security Council acting under Chapter VII. It permits Member States to exercise "the inherent right of individual or collective self-defense if an armed attack occurs against" them, "until the Security Council has taken the measures necessary to maintain international peace and security." (17) Although the question is still disputed, this provision is widely understood to permit Member States to engage in armed self-defense, not only after they have been attacked, but also to preempt an armed attack that is "imminent." For example, most view Israel's attack on Egypt in 1967 as a legitimate act of preemptive self-defense under Article 51. On the other hand, many believe that a Member State may not lawfully act in self-defense to prevent an armed attack that is more remote in time. Thus, Israel's 1981 attack on the Iraqi nuclear facility at Osirak faced condemnation by the Security Council as an unlawful preventive strike. (18)

   International lawyers commonly distinguish between "legitimate" preemptive self-defense and allegedly "illegitimate" preventive self-defense by reference to the famous nineteenth-century exchange of letters between U.S. Secretary of State Daniel Webster and British Special Minister Lord Ashburton. The Webster-Ashburton correspondence concerned a British military foray into American territory during the Canadian Rebellion of 1837, the so-called "Caroline incident."...