Targeting the World: Assessing the Lawfulness of the "Bush Doctrine": Contrary to Former President George W. Bush's Belief That "I Don't Care What the International Lawyers Say, We Are Going to Kick Some Ass," Preventive War-Waging, as Demonstrated in the Bush Doctrine, Does Not Kick Ass. Preventive Self-Defense Is an Illegal, Counter-Productive Policy Which Sets Deadly Precedents for Other States to Follow
Kaba, Marcel, The New Presence: The Prague Journal of Central European Affairs
Nowadays when one mentions anticipatory, often referred to as preemptive, or as many in the Bush administration [unknowingly, but correctly] preferred to label it "preventive" self-defense, the first example which comes to mind is the US invasion of Iraq in March 2003. Also known as Operation Iraqi Freedom, the invasion occurred despite the lack of, among other factors, international support. The United States government failed to provide any conclusive and convincing evidence of 1) the alleged link between Al-Qaeda and Iraq; 2) the existence or at least build-up of weapons of mass destruction in Iraq. Yet those two notions were precisely the "popular" justifications for invading the sovereign state of Iraq in the first place.
The misleading fear-factor/security-paranoia propaganda along with significant catastrophic-scenarios purported by the media proved to be considerably effectual in the initial phases of the operation and rallied massive US popular support for the invasion.
In September 2002, President Bush's National Security Strategy rematerialized the long forgotten and sensibly abandoned doctrine of preemption; sensibly because as historian Andrew Bacevich indicates in his article "The Lessons of Endless War," "history has repeatedly demonstrated the irrationality of preventive war. Iraq shows us why the Bush Doctrine was a bad idea in the first place and why its abrogation has become essential." Furthermore, former Vice President Dick Cheney's reckless "one percent doctrine," which may very well be perceived as the most malicious modus operandi for aggressive war-waging offered in the modern era, suggests that even the slightest chance of an attack on the US ought to be approached militarily as if it were beyond any doubt.
President Bush's most perplexing claim came after the breakdown and refutation of all previously introduced factual and/or legal justifications for the invasion when the administration sought to establish moral grounds for their actions. Or, in their eyes, some sort of legitimacy. But if their actions were ostensibly based in legitimacy, were they also grounded in legality? No.
Many people conceded that the US invasion of Iraq was illegal under international law standards, but simultaneously acknowledged that it was legitimate; it was the right thing to do--the omnipresent conundrum between law and ethics. The Bush Doctrine undermines the inclusive multilateral character of the United Nations and promotes illegal aggressive unilateral action, and in doing so sets highly dangerous precedents for other states to follow. Furthermore, the policy is counter-productive in the sense that it leads to more hatred, suffering and death between and among peoples.
Shaping International Law
Pertaining to the right of anticipatory self-defense, the best and most frequently cited example of customary international law is the Caroline doctrine of 1842. Derived from a legal settlement following an incident between a part of Canada and the British Crown, the doctrine establishes two fundamental criteria for reactive as well as anticipatory self-defense. The first criterion was necessity: an instant and overwhelming threat which leaves the self-defending state with no other choice. The second criterion was proportionality: the quantity of force applied in preemptive self-defense must be commensurate to the danger sought to be pre-empted.
Treaty law, the second component of international law, consists of legally binding agreements between two or more parties referred to as "treaties" or "conventions." Treaties may be contractual or introduced alongside newly developed rules of international law. The Vienna Convention on the Law of Treaties of 1969 and the United Nations Charter are examples of a law-making treaty.
The United Nations Charter
Self-defense, namely the right to use force in preemption (in response to a threat), prior to the United Nations Charter had mainly been guided by the customary international law doctrine of Caroline. …