In September, President Bush unveiled a new military strategy that supports US right to preemptive strikes. "Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat—most often a visible mobilization of armies, navies, and air forces preparing to attack," the strategy document states. It continues, "We must adapt the concept of imminent threat," and goes on to assert the right to strike first even if no imminent threat exists.
In international law there is a distinction between preemption and prevention. Preemption is the use of force when an imminent threat exists, and as the Bush's policy document states, is legal. Preventive attack, on the other hand, is the use of force when no imminent threat exists. A number of legal experts and critics, including Senator Edward Kennedy, have argued that Bush's policy is more accurately described as preventive, and is therefore in violation of international law.
Henry Kissinger stated in the Chicago Tribune that an attack in the absence of imminent threat "runs counter to international law, which sanctions the use of force only against actual, not potential threats." That doctrine dates to the 1648 Treaty of Westphalia, which ended the Thirty Years War, Europe's last major religious conflict. The doctrine was strengthened and codified with the establishment of the United Nations, whose charter was signed and ratified by the United States, which played a major role in pushing for the international body. Under the charter, nations may go to war with other nations only in defense. Indeed, in the Nuremberg trials of the Nazis after World War II, one of the major accusations was that the Nazis had waged "aggressive war"—that is, non-defensive war—against other nations. The US was a leader in bringing the Nazis to justice under international law.
A report by the Lawyers' Committee on Nuclear Policy states: "Under the UN Charter, there are only two circumstances in which the use of force is permissible: in collective or individual self-defense against an actual or imminent armed attack; and when the Security Council has directed or authorized use of force to maintain or restore international peace and security. Neither of those circumstances now exist. Absent one of them, U.S. use of force against Iraq is unlawful."
Yale Law Professor Bruce Ackerman points out that it was US Secretary of State Daniel Webster who in 1842 pioneered the principle in international law that raids of another country's territory are permitted only if there is an immediate "necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation"—and only if nothing "unreasonable or excessive" is done by the raiding force.
Under the new Bush doctrine, Pakistan, a nuclear power, would be authorized to invade India, Israel to invade the entire Middle East, and Russia to attack Georgia. In fact, Russia has already referenced the new doctrine in threatening to attack Georgian territory, where they claim Chechen rebels have taken refuge. Furthermore, the fear that a hostile nation might be contemplating a preemptive attack could easily provoke a nation to attack.
For more information about the new National Military Strategy for the United States of America, see:
"Shape, Respond, Prepare Now -- A Military Strategy for a New Era," The Joint Chiefs of Staff, www.dtic.mil/jcs/nms/
"But What's the Legal Case for Preemption?" by Bruce Ackerman, in the Washington Post, 8/18/02 http://www.law.yale.edu/news/4340.htm
"The Bush Doctrine of Preemption," speech by Senator Edward Kennedy on the Senate Floor, October 7, 2002, www.truthout.org/docs_02/10.09A.kennedy.htm
"Why First Strike Will Surely Backfire" by William Galston (professor of public affairs at the University of Maryland and from 1993 to 1995 deputy assistant to President Clinton for domestic policy, Washington Post, 6/16/02, www.washingtonpost.com/ac2/wp-dyn/A54644-2002Jun14
"The New Bush Doctrine," by Richard Falk, The Nation, 7/15/02
"Plan Likely to Further Isolate the US," by Sonni Efron and Carol Williams, LA Times, 9/21/02
"Rule of Power or Rule of Law? An Assessment of US Actions and Policies Regarding Security-Related Treaties," Institute for Energy and Environmental Research and Lawyers' Committee on Nuclear Policy, May 2002. www.lcnp.org/pubs/index.htm
"The Legality of Use of Force Against Iraq," by the
Lawyers' Committee on Nuclear Policy, Western States Legal Foundation,
Michael Ratner of the Center for Constitutional Rights, and Professor
Jules Lobel of the University of Pittsburgh Law School.
Highlights of report: "The United Nations Charter is a treaty of the United States, and as such forms part of the supreme law of the land under the Constitution, Article VI, Clause 2. The UN Charter is the highest treaty in the world, superseding states' conflicting obligations under any other international agreement. (Art. 103, UN Charter)" www.lcnp.org/global/iraqstatement3.htm