IN THE IMMEDIATE AFTERMATH of the terrorist attacks on Sept. 11, 2001, the U.S. began a war against global terrorism. Soon thereafter, America abandoned its Cold War strategy of containment, embracing the doctrine of preemptive warfare aimed at attacking suspected aggressors before they could strike first. This, in turn, led to the invasion of Iraq in March, 2003.
The Bush Administration's doctrine of preempting terrorists and rogue states, in what is called alternatively "forward deterrence" or "anticipatory self-defense," raises anew timeless moral and legal issues about the conditions under which, and purposes for which, a just war for self-defense is permissible to counter a threat to national security. What it has advanced as a new national security strategy is nothing less than an amputation of the normative pillar on which global society has been based at least since 1928, when the Kellogg-Briand pact outlawed war as an instrument of foreign policy. This radical revision of customary international law is leading the world into uncharted waters. If it becomes permissible to attack other international actors who do not pose an imminent threat, then, without a moral principle to guide international conduct, war is likely to increase.
Pres. Bush first signaled the policy change he was initiating on June 1, 2002, at West Point. To his way of thinking, 9/11 created unprecedented "new deadly challenges" that necessitated new approaches and rules for statecraft. Chastising tyrants like Iraq's Saddam Hussein as international outlaws, the President announced that "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.... Traditional concepts of deterrence will not work against a terrorist enemy whose avowed tactics are wanton destruction and the targeting of innocents, whose so-called soldiers seek martyrdom in death.... The greater the threat, the greater the risk of inaction--and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively." (Emphasis added.)
This reasoning soon thereafter became the cornerstone of The National Security Strategy of the United States of America (NSS), released on Sept. 17. It reiterated Bush's West Point declaration that the era of deterrence was over and preemption was an idea whose time had come. It then proceeded to assert that, "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.... We cannot let our enemies strike first." The NSS added, "Nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack."
The extreme revisionism of the Bush doctrine undercuts a key preemptory norm in international law that underpins all others--the use of force cannot be justified merely on account of an adversary's capabilities, but solely in defense against its aggressive actions. Preemption represents a frontal rejection of Articles 2(4) and 51 of the United Nations Charter that condones war only in self-defense. It opens the door to military first strikes against adversaries, under the claim that their motives are evil and that they are building the military capabilities to inflict mass destruction.
It is not difficult to appreciate the grave dangers that have prompted this watershed in U.S. national strategy. The threats which provoked the President's extreme strategic response are real. Raison d'etat dictates that actions be taken for the preservation of the state, and, in these threatening circumstances, many find reasonable the claim that the national interest makes such countermeasures imperative. …