Social Science Research Council

In a landmark speech to the U.S. Military Academy at West Point on 1 June 2002, President George W. Bush declared that America could not always rely for its security on traditional strategies of deterrence and containment. Instead, he claimed that faced with the perils posed by terrorist networks and rogue states acquiring weapons of mass destruction (WMD), the U.S. might have to strike first before the danger had materialised. No American government has ever advanced such a justification for the use of force, and it has profound implications for the existing UN Charter framework regulating it. What remains unclear is whether the Bush Administration is seeking to create a new legal basis for the use of force that would be available to all states. Or, alternatively, whether it is seeking to carve out an exception to the existing legal rules that would only apply to America. Either way, the challenge facing the administration is to persuade wider international society to embrace a broadening of the right of self-defence to encompass anticipatory or preventive self-defence. In seeking to legitimate this policy so that it does not simply appear as a rationalisation of American power, some officials within the administration have argued that it is in conformity with changing understandings of sovereignty. It is this dimension of the so-called 'Bush doctrine' that is the focus of this paper.

The first part of the paper examines the nature of the doctrine, clarifying some of the conceptual ambiguities that have crept into the debate as to whether it is a strategy of pre-emption or preventive military action. In the rest of the paper, I consider whether the Bush doctrine should be seen as a logical extension of the idea of 'sovereignty as responsibility'. Even if a policy of preventive military action could be justified in terms of what Richard Haass, Director of Policy Planning for the State Department calls the 'limits of sovereignty' thesis; a key question is who should decide when a state has forfeited its right to sovereign immunity. The Bush Administration wants to arrogate to itself the right to decide, but this threatens to usurp the Security Council's primary responsibility for maintaining international peace and security. The Bush doctrine, then, looks set to place the U.S. on a collision course with the UN, and the current crisis over Iraq is an indication of the troubled waters that lie ahead.

Beyond pre-emption towards a right of anticipatory self-defence

Historians will have to judge whether the Bush doctrine would have seen the light of day without the attacks against the USA on September 11. What can be said with greater certainty is that 9/11 gave the Bush Administration a clear focus for defining America's national interest after the demise of Soviet power - a question that had been troubling the conservative wing of the U.S. foreign policy establishment since the end of the Cold War. The 'war against terrorism' has become the legitimating standard against which to defend U.S. foreign policy in the same way that the Soviet threat played this role in justifying containment in the late 1940s. What is different about the current situation is that the U.S. confronts threats not only from state actors that can be easily identified, but also from terrorist networks like al-Qaeda that operate in the shadows. Washington's greatest fear is the coupling of terrorism with weapons of mass destruction: this could take the form of governments covertly passing on such weapons to terrorist groups (making it very difficult for the U.S. to know who to retaliate against) or the development of WMD by rogue states that are beyond traditional forms of deterrence. To prevent such threats becoming a reality, the President in his State of the Union Address had committed the U.S. to regime change in Iraq, Iran and North Korea whom he labelled an 'axis of evil'. The clear implication being that force might be required to achieve this. His speech at West Point only underscored his determination to go on the offensive against America's enemies. Bush stated that, 'If we wait for threats to fully materialize, we will have waited too long . . . We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge'. Some commentators pointed out that Bush was asserting a U.S. right to pre-empt its adversaries, but others suggested that what was being advanced was the even more ambitious claim that it had a right to conduct preventive war.

A pre-emptive strike is one where a state or group of states responds to a threat of imminent attack. For example, Israel's first strike against the Egyptian air force in 1967 might be cited as an example of such an action. International law is ambiguous on whether states have a right of pre-emptive self-defence in cases where a failure to strike might lead to immediate disaster. Article 51 of the UN Charter requires that an 'armed attack' take place before the right of self-defence is triggered, and state practice and opinio juris appears to support this strict interpretation of the law. However, some lawyers argue that a right of pre-emptive self-defence exists in customary international law, and that this is not extinguished by Article 51. It is argued that since the Caroline case of 1837 there has been a limited right of pre-emptive action in cases where it can be shown that the threat is 'instant, overwhelming, leaving no choice of means, and no moment of deliberation'. However, the Bush Administration is seeking to go beyond pre-emptive action to justify preventive military action. The idea of preventive war refers to attacking a state before it has developed a capability that could one day pose an imminent danger. There is nothing new about this idea, and some in the U.S. defence establishment pressed this policy option as the only response to the threat posed by Soviet nuclear capabilities in the early 1950s. Fortunately, the idea of turning the Soviet Union into what General Curtis Le May (a proponent of such an attack), called a 'smoking radiating ruin' was rejected by US civilian authorities. Yet the parallel with the Bush doctrine is a chilling one. As Senator Edward M. Kennedy pointed out on the floor of the Senate on 7 October 2002, the argument of those who wanted to launch preventive war against the Soviet Union in the early 1950s was that the 'uniquely destructive power of nuclear weapons required us to rethink traditional international rules'. Similarly, the new National Security Strategy of the U.S. released by the National Security Council in September 2002 calls for a rewriting of the rules to cope with the challenge posed by the risk of terrorists and rogue states acquiring WMD.

The new strategy document considers that the existing legal right of pre-emption rests 'on the existence of an imminent threat - most often a visible mobilization of armies, navies, and air forces preparing to attack'. It calls for a broadening of 'the concept of imminent attack' to meet the challenge posed by terrorist adversaries who could strike using WMD without warning and in secret. Given the costs of inaction and the magnitude of the threat, the document maintains that there is a 'compelling 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 act pre-emptively'. Although the document uses the language of pre-emption, it is clear from the rest of the text that what is meant here is a doctrine of preventive or anticipatory action. As Michael Byers points out, the new national security strategy not only affirms the existing legal right of pre-emptive self-defence; it also seeks to change the law by extending 'that right into a new rule allowing of precautionary war'.

One of the most controversial examples of a state claiming a right of anticipatory self-defence was Israel's 1981 attack against the Iraqi nuclear reactor at Osirak. The reactor was not operational and it was under full-scope International Atomic Energy Authority (IAEA) safeguards. Israel was determined that it would not allow its enemy to develop nuclear weapons that might be used against it. But its action was almost universally condemned as an act of aggression, and even the U.S. voted in the Security Council to support a resolution censuring the action. It is exactly Israel's plea of anticipatory self-defence to combat the threat from WMD - so resoundingly rejected by the Security Council in 1981 - that the U.S. seeks to advance today. Although the administration has primarily defended a strategy of striking first in terms of protecting the U.S. homeland against its enemies, it has fallen to Richard Haass in the State Department to articulate a normative defence of the policy that might win wider international approval. He has sought to legitimate the new Bush policy by identifying it as an important extension of the notion that state sovereignty is a responsibility and not a right.

The Responsibilities of Sovereignty

A changed understanding of the principle of sovereignty gained ground in international society during the 1990s in response to debates over the legitimacy and legality of humanitarian intervention. By the end of the 1990s, most states accepted the principle that a state's legal and moral right to claim protection of the norm of non-intervention was dependent upon it satisfying certain minimum or basic standards of common humanity. However, the vast majority of states are united on the principle that the UN Security Council should decide when and how 'intervention for human protection' is permitted. For example, during the Rwandan genocide, no government argued at the UN that the Security Council should not intervene because this would violate the principle of domestic jurisdiction in Article 2 (7) of the Charter. The Special Representative of the UN Secretary-General for Internally Displaced Persons, Francis M. Deng, labelled this approach 'sovereignty as responsibility'. The Secretary-General is a great enthusiast for this doctrine. Speaking in 1998 before NATO's intervention in Kosovo, Kofi Annan emphasized that the UN Charter belongs to the peoples of the world and not the states who are their representatives at the UN. He asserted that, 'The [UN] Charter protects the sovereignty of peoples. It was never meant as a license for governments to trample on human rights and human dignity'. Sovereignty implies responsibility, not just power'. This is not a rejection of the core principles of sovereignty and non-intervention; rather, states that claim these rights must recognize responsibilities for the protection of citizens inside their jurisdictions.

Taking this change of normative context as his point of departure, Haass argued in an address to the IISS on 13 September 2002 that NATO's intervention in Kosovo was guided by this new understanding of sovereignty. Moreover, he suggested that the U.S. intervention against the Taliban in October 2001 represented a further necessary extension of this principle. There was widespread international support, he said, for the idea that 'sovereignty can provide no protection for governments that carry out or abet such terrorism'. It was not the Taliban who had executed the attacks against the USA on September 11, but 'virtually everyone agreed it was legitimate for the United States to intervene in Afghanistan and target the Taliban'. More controversially, he went on to claim that 'today, we are on the cusp of a third adjustment to our thinking about sovereignty' that justifies preventive military action against states developing WMD. In an interview a months earlier with Nicholas Lemann of The New Yorker, the State Department's policy planning director had claimed that 'if a government fails to meet [its] obligations, then it forfeits some of the normal advantages of sovereignty . . . [and] . . . other governments, including the United States gain the right to intervene'. In seeking to frame the Bush Doctrine as a natural development of the norm of 'sovereignty as responsibility', Haass sidestepped the crucial issue of who should decide when a state has forfeited its right to be treated as a legitimate sovereign.

Yet this issue had been a matter of great controversy in relation to NATO's intervention in Kosovo. There was no disagreement in the Council that the Milosevic government was in violation of its international responsibilities, rather, controversy centred on whether all peaceful means had been exhausted, and whether force would exacerbate the humanitarian crisis. The Alliance's reluctant decision to bypass the Security Council in launching 'Operation Allied Force' was condemned by Russia, China and India. However, the wider membership of the Council showed by their rejection of a Russian resolution condemning NATO's action that they understood the moral context in which NATO had been forced to take action. The best defence of NATO's intervention is that it was an anticipatory one aimed at preventing future Serb atrocities against the Kosovar Albanians. But Russia and China were not persuaded of NATO's case, and this highlights the difficulties of reaching a consensus on action when evidence is ambiguous and contested as it is likely to be in cases where the justification is a preventive one.

The difficulties that faced the Council over Kosovo are nothing compared to those that would arise in cases where a claim was being pressed for anticipatory action to disarm a state before it acquired a capability that could be used to harm others. Haass suggested that preventive military action would be justifiable where it is clear 'it's a question of when, and not if, you're going to be attacked'. In a replay of Kosovo, the P-5 is currently divided over the merits of military action against Iraq, and it remains to be seen whether these differences can be bridged. Haass argues that states have a right of anticipatory action if they 'have grounds' to think an attack is inevitable, but should this determination be left to individual states or should it always rest with the Security Council? Giving discretion to individual states risks opening the floodgates to actions that could with varying degrees of plausibility be justified in terms of a rule of preventive self-defence. The consequence of this being a significant erosion of the prohibition against the use of force in Article 2 (4) of the UN Charter.

What is curious in U.S. justifications of the new strategy is that there is no discussion of the risk that it could erode the pillars of international order. If America takes action outside of the UN Security Council and justifies this in the name of anticipatory self-defence, then why should others not advance similar claims in their conflicts with other states? As Senator Kennedy expressed this criticism of the Bush doctrine: 'it would also send a signal to governments the world over that the rules of aggression have changed for them too, which could increase the risk of conflict between countries'. The Bush Administration's apparent lack of concern about the risk of others invoking a right of preventive action can be contrasted with its predecessor's stance during the Kosovo crisis. The Clinton Administration debated whether the U.S. should invoke a right of humanitarian intervention to justify its use of force against the Milosevic regime in the absence of express Security Council authorisation. The question was discussed by lawyers and other high-ranking officials from the Departments of State and Defence, as well as members of the National Security Council's policy planning staff. However, the administration decided to rule out this legal rationale because it worried that such a claim might be used by others to justify interventions that would undermine the fabric of international order to the detriment of U.S. interests.

Two factors might be adduced to explain the Bush Administration's unperturbed attitude to precedent setting. The first is that the US is claiming a right that it wants to restrict to itself. There are, as Byers notes, cases where exceptional legal rules have been accepted for individual states. But it seems wildly optimistic to imagine that other states would approve or even acquiesce in this development. Moreover, it is undermined by Haass' suggestion that states that fail to live up to their sovereign responsibilities expose themselves to intervention by others. The implication being that the legal right claimed by the US is generalisable to other states. The second and more compelling reason is that senior administration officials are not persuaded by the proposition that the assertion of a new legal rule on the part of the U.S. would have the effect of leading others to emulate it. The administration's thinking is probably captured in Robert Kagan's comment that 'I don't think we're moving into the age of pre-emption . . . I don't think other nations are being restrained from taking action by the fact that no one has set the precedent of pre-emption'. The problem with this view is that it underestimates how legal precedents can boomerang on those who set them.

A good example of this is U.S. justifications for its intervention in the Dominican Republic in 1965. The Johnson Administration espoused the argument that the US had a special right as a custodian of democratic values to prevent Communist subversion in Central America. This argument was rejected by the Soviet Union in the Security Council which responded by affirming the primacy of the UN Charter. However, less then three years later, the Soviet Union pressed into service a similar justification - the Brezhnev doctrine - to justify its intervention against Czechoslovakia. The fact is that if hostile foes like India and Pakistan were to adopt a policy of preventive self-defence, the risks of nuclear war between them would rise still further. It has to be asked whether such an outcome is in the long-term interest of the U.S.

Conclusion

The Bush doctrine issues a licence for unilateral intervention in cases where individual states judge that they have good grounds for believing that another state is developing WMD that will pose a future threat to its very existence. It does not require the existence of an imminent threat to be triggered and it does not depend upon the authority of the Security Council. It places in the hands of sovereign states enormous discretion over when and how force can be employed, and represents nothing short of a revolutionary challenge to the UN Charter. Attempts to defend the doctrine in terms of the idea of 'sovereignty as responsibility' have not addressed the issue of where authority should be located for deciding when a state has forfeited its right to be protected by the principle of non-intervention. In the absence of an answer to this question that commands international consensus, the Bush Administration is likely to find few supporters for its claim of anticipatory self-defence. Instead, justifying the use of force on these grounds is likely to be viewed as an example of vigilante justice.

Appealing to the 'obligations of sovereignty' would have more credibility if it was linked to the claim that America and its allies reserve the right to act in cases where there is clear evidence of an imminent attack and where the Security Council is unable or unwilling to sanction the use of force. Indeed, the realisation that a state or group of states might act outside the Council to pre-empt WMD threats should have the effect of galvanising a united front on the part of Council members determined to maintain the viability of the UN system of collective security. However, any actions that were taken outside the Council would always be open to what Thomas Franck calls the 'jurying function' performed by UN political organs. The case of Kosovo is illustrative since whilst NATO acted without express Council authorisation, its breach of Charter authority was treated with considerable leniency by a Security Council and General Assembly sympathetic to the moral claims behind NATO's use of force.

Given the Security Council's record of demanding Iraq's compliance with Resolution 687, and the fact that this intrusive disarmament regime was only imposed in the context of Iraq's breach of Kuwait's sovereignty, it is conceivable that the U.S. will secure formal Council authorisation for the disarmament of Iraq. In such an event, the more wild claims about a right of preventive military action might be quietly forgotten in Washington since the espousal of the doctrine is linked closely to securing domestic and international legitimacy for war against Iraq. However, if action against Iraq takes place outside of Council authority, and the US relies on an explicit claim of anticipatory self-defence, this would represent a direct assault on the authority of the Security Council as the guardian of international peace and security. It might be ventured that a body as unrepresentative of humanity as the Security Council is should not have a veto over the actions of an America committed to protecting the lives of their citizens and extending human dignity everywhere. This sentiment seems to underlie the administration's approach to the Security Council, and this is not surprising given its conviction that American values are universal ones. But for all its limitations, the Council remains the best hope of building a collective security system that can regulate violence in world politics. Bush claimed in his West Point speech that deterrence and containment were outmoded in coping with the new threats; his actions in the coming months will determine whether we should add the UN to that list.