Academic journal article Harvard Journal of Law & Public Policy

The "Bush Doctrine": Can Preventive War Be Justified?

Academic journal article Harvard Journal of Law & Public Policy

The "Bush Doctrine": Can Preventive War Be Justified?

Article excerpt

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. … 
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