"I wouldn't join the International Criminal Court. It's a body based in The Hague where unaccountable judges and prosecutors can pull our troops or diplomats up for trial.
"And I wouldn't join it. And I understand that in certain capitals around the world that that wasn't a popular move. But it's the right move not to join a foreign court that could -- where our people could be prosecuted." - George W. Bush 09/30/04
The following article provides some useful perspective on the Bush Doctrine of preventive war, although the authors' views are friendlier to the Bush Doctrine than I've ever been inclined to be.
U.S. Policy on Preventive War and Preemption by James J. Wirtz and James A. Russell, The Nonproliferation Review (Monterey Institute of International Studies) Spring 2003 (*.pdf file).
Wirtz and Russell make the important observation that transnational terrorist organizations like Al Qaeda are indeed difficult if not impossible to deter, as the administration also argues. But they raise and important qualification on "rogue states," and in the process refer matter-of-factly to the inadequacy of the administration military response in Afghanistan (my emphasis):
No one has challenged the Bush administration's thinking about deterrence as it relates to transational terrorist organizations. Al-Qaeda was not deterred by the array of military capabilities possessed by the Untied States. And while the aggressive U.S. response to the 9/11 attacks may not have been anticipated, al-Qaeda remains undaunted and has continued its attacks on the United States and its allies around the globe. The United States was able to force a regime change in Afghanistan through overwhelming military force, but not the elimination of the terrorists it was after. Simply put, a-Qaeda and Osama bin Laden have not been deterred. What many find more controversial, however, is the Bush administration's asssertion that rogue states, like terrorists and terrorist organziations, cannot be deterred.
I quoted their definition of "preventive" and "preemptive" wars in a post last August devoted to that subject:
Although the terms often are used interchaneably, "preventive war" and "preemption" are distinct strategic concepts. Preventive war is based on the concept that war is inevitable, and that it is better to fight now while the costs are low rather than later when the costs are high. It is a deliberate decision to go to war. Preventive war thinking seems to dominate Bush administration planning about Iraq: It is better to destroy Saddam Hussein's regime now than to deal later with a regime armed with nuclear weapons or other WMD. Preventive war thinking, however, can turn out to be a self-fulfilling prophecy, since treating war as inevitable can help make it inevitable. It also can lead to unnecessary conflict because few things are inevitable...
Preemption, by contrast, is nothing more than a quick draw. Upon detecting evidence that an opponent is about to attack, one beats the opponent to the punch and attacks first to blunt the impending strike. States that fear preentive war often adopt preemptive strategies: During the Cold War, preemption, often referred to as a "launch-on-warning attacks," was depicted as a desperate doctrine to thwart an opponent's effort to bring the Cold War to a final showdown. (my emphasis)
Wirtz and Russell remind their readers that:
Terrorist often seek a disporportionate response from the government they attack in the hope of provoking a sympathetic response from some target audience. Thus, savage reprisals in kind can actually play into the hands of terrorists.
Which the Bush administration has done on a large scale by using the war fever related to the 9/11 attacks to justify the invasion of Iraq. And the military seems to be doing this on a small scale many times over in Iraq and Afghanistan.
Since our lazy mainstream press provides pitifully little information on subjects like this, the section of the Wirtz/Russell article on "The International Legal Framework Governing the Use of Force" is especially useful. They note that countries that seem to "meet the Bush administration's standards for preventive war include al-Qaeda, Iran, Iraq, Syria, Sudan, Libya, and North Korea." We've already used it against Iraq, and presumably Libya is now off the list, at least for the moment, since Bush advertises it as an example of the brilliant success of the intimidating effects of the Bush Doctrine.
They observe:
Most Americans ... assume that the Untied States will use force only to defend itself, which implies that it will not be the first to go to war in a crisis. For example, revelations that the Tonkin Gulf incident [of 1964] was more of a confused melee than a deliberate North Vietnamese attack on U.S. warships were treated as a scandal by most Americans, because it is important to them that the United States engage in combat only a matter of self-defense.
The Bush administration's credibility received a severe blow from the discovery that their claims of "weapons of mass destruction" in Iraq were not only exaggerated, but completely bogus. Now we've got "neoconservative" ideologue Ken Adelman making the insane argument that a country even pretending to have WMDs is a reason to launch a preventive war.
Wirtz and Russell also recall an important American definition of preemptive military action:
In the aftermath of the British preemptive attack on the USS Caroline in 1847, Secretary of State Daniel Webster provided an enduring international legal formulation clarifying when preemptive attack was warranted: (1) when "the necessity of that self-defense is instant, overwhelming, and leaving no choice of means and no moment for deliberation" and (2) if such an attack was proportional to the threat.
It would take a heavy dose of Oxycontin for most people to imagine the situation in March 2003 justified the invasion of Iraq based on those grounds.
And, a useful reminder to those who sneer at the United Nations and international law, they note, "The principle of using force in self-defense is enshrined in the [United Nations] charter."
Their discussion of whether Kennedy's use of a naval blockade of Cuba was an instance of a preventive war type action is good, though brief. Advocates of preventive war have, not surprisingly, tried to make that argument. But Wirtz and Russell are on solid grounds in concluding, "Perhaps a more accurate characterization of this situation is that the quarantine (otherwise known as a blockade, which is an act of war) was just one step removed from a preventive military attack."
Wirtz and Russell were mistakenly optimistic in assuming that the Bush administration's goal at the time of the writing of their article was to avoid war with Iraq. But they were technically correct at that prewar time in writing, "In effect, the Bush administration is not following a policy of preventive war or preemption vis-a-vis Iraq, but is instead engaging in a form of diplomatic and military activity known as coercion or compellence."
The make the important point that military activities that are actually directed against Al Qaeda can scarcely be considered "preventive war" in light of the multiple attacks on the US by Bin Laden's group.
And this observation restates a fundamental problem with preventive war:
History also suggests that states that act aggressively always justify their action on the grounds of self-defense, which in part explains why the UN Charter takes such a dim view of preventive war or preemptive attack.
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