Bush's preventive war: Doctrine of mass confusion (Broadening or contortion of the concept of pre-emptive self-defense?)

Résumé du document

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."

Extraits

[...] 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. Emerging Right to Democratic Governance', (1992) 86 AJIL 46. p.51. Macdonald, Euan. [...]

[...] The considerations that led Kennedy not to enlarge the concept of pre-emptive self-defense, i.e. the risk of abuses and of creating a precedent, seem just as valid today. This leads us to the sensitive issue of the imminence of the attack, which lies at the core of the debate on the Bush Doctrine. The Legal Controversy In his correspondence with Daniel Webster, Lord Ashburton asked “when begins your right to self-defend.”[67] This question has been dividing states for many years. [...]

[...] Though, the question of the legality of that kind of pre-emption, really close to the Bush doctrine, was not clearly asked: what if there had been such proofs? Proponents of the broadening of the notion of pre-emption often argue that as early as in 1962 the US positioned itself as supportive of preventive action in the face of nuclear threats. Indeed, President Kennedy explained that no longer live in a world where the actual firing of weapons represents a sufficient challenge to a nation's security to constitute maximum peril. [...]

[...] The invasion of Iraq was the first application of the Bush Doctrine, and the first application of a right to preventive self-defense. No clear precedent can be found; no clear broadening of Webster's criteria can be noticed. However, international law is adaptable, flexible. If this doctrine actually reflects new concerns that ought to be taken into account, then it might be arguable to see it as the very first step toward the crystallization of a new legal norm The arguable legality of a right to preventive self-defense The Bush doctrine is legal in itself, argue its proponents. [...]

[...] the “depth of the rule's root in historical process”[39]. It allows assessing the support it finds in international law, its weaknesses and its scope Historical Backgrounds The apparition of pre-emption in international law The UN Charter is pretty silent about an actual right to anticipatory self- defense i.e. Article 51 only states that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations”[40] Therefore “there is no consensus in international legal doctrine over the point in time from which measures of self-defense against an armed attack may be taken.” The right to anticipatory self-defense rather relies on customary international law, and is often said to date back to 1842, when US Secretary of State Daniel Webster enounced the Caroline doctrine. [...]