The debate triggered by the new Bush Doctrine of pre-emptive action lies in the amalgamation between pre-emptive (i.e. anticipatory) and preventive self-defense. While the former finds legal and political basis, the latter is, so far, hardly distinguished from outright aggression. The Bush Doctrine aims at a shift from pre-emption to prevention for the United States to have at its disposal this new tool it stands for: a right to preventive action. Since the 9/11 attacks, the US has exposed its new concerns with respect to security: weapons of mass destruction, terrorist organizations and rogue states. The Doctrine is the response the US opposes to these new threats. This dissertation will try to demonstrate that, so far, Bush's notion of pre-emption finds no clear support either in international law or in the political field, but rather fuels a strong controversy, be it about pure legality or general acceptability. Meanwhile, the need for an answer to these new concerns is real and this dissertation will conclude with some suggestions as how to refine this concept to make it escape a too great controversy and subsequently appear as the useful tool the US intended it to be.
The Bush Doctrine has fueled a very sensitive debate about pre-emptive and preventive war. In the definition of the Pentagon itself, pre-emption is
"an attack initiated on the basis of incontrovertible evidence that an enemy attack is imminent" whereas prevention refers to "a war initiated in the belief that military conflict, while not imminent, is inevitable, and that to delay would involve great risk."
[...] “Just War Doctrine and the Invasion of Australian Journal of Politics and History, Vol.51. No pp. 555-556. O'connell, Mary Ellen. Myth of Preemptive Self-defense”, The American Society of International Law, Task Force on Terrorism, August 2002, p Available at: http://www.asil.org/taskforce/oconnell.pdf Barber, Benjamin R. Fear's Empire: War, Terrorism and democracy, Ed. W.W.Norton & Co.(New York: NY 2003). Barber Director of Central Intelligence, "The Worldwide Threat in 2003: Evolving Dangers in a Complex World," February Available at : http://www.nti.org/e_research/official_docs/cia/cia021103.pdf Bunn p.7. Franck, Thomas M. [...]
[...] Is the Bush Doctrine of Preventive war a necessary broadening or a risky contortion of the concept of pre-emptive self-defense? In order to answer that question the doctrine will be analyzed from a legal and political perspective, after having established what exactly is to be understood as the Bush Doctrine. As there can be no ambiguity in meaning if a norm is to be established or to exist at all. Chapter One. Establishment of the Bush Doctrine In the aftermath of September a new doctrine arises in the US, in response to the threat posed by terrorism and states that sponsor it whose importance and impact has been abruptly revealed by these attacks. [...]
[...] Or what if India decided to take preventive action against Pakistan, or vice versa?”[75] The idea is that if the Bush doctrine aims at asserting a legal principle of general application, implications are so ominous as to justify universal condemnation. For such a doctrine would [also] legitimize pre- emptive attacks by Arab countries against Israel, [ ] and by North Korea against South Korea, to give some obvious examples. It would even serve to legitimize ex post facto Japan's attack on Pearl Harbor.”[76] The risk of legalizing such a broad conception of pre-emption as the Bush doctrine is quite high, as it is like institutionalizing a “principle [which] then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”[77] In other words, there might be new threats requiring new means, but as a rule a military emergency never ought to be institutionalized, as the very being of an emergency is that it is temporary while an institution is all time”[78]. [...]
[...] I asked in introduction whether the Bush Doctrine of Preventive war is a necessary broadening or a risky contortion of the concept of pre-emptive self-defense. I now answer that it is, in fact, a ‘risky broadening'. drafting and adoption of Resolution 1441 demonstrates that U.S. partners can exercise substantial influence, with the quid pro quo that allies of the United States understand that some action must be taken.”[122] The UN system is not dead, multilateral decision-making can still work. What we need to do is to make it work along with concrete norms, in order to have the less controversy possible on the criteria by which to take a decision or not. [...]
[...] "International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaeda, and Iraq," San Diego International Law Journal 4 (2003) pp. 12-13 (quoting letter from Daniel Webster to Henry S. Fox [British ambassador] of April 24, 1842). Gardner p.587. Taft, William H. IV, Legal Adviser, Department of State, Legal Basis for Pre-emption”, Council on Foreign Relations, November 18th 2002. Available at: http://www.cfr.org/publication/5250/legal_basis_for_preemption.html Address to the Nation on Iraq, Mar Weekly Comp. Pres. Doc (March 24, 2003) Quoted in Gardner p587. Chayes Abram, The Cuban Missile Crisis : International Crises and the Role of Law (New York: OUP, 1974) p.65. [...]
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