However, this hindsight view is not a sound basis for a rule of law. Otherwise, nations around the world will seek nuclear weapons, claiming self-defense, on the basis of the propensity of some nations to engage in preemptive attacks allegedly justified under international law, and will thereby destroy the Nuclear Non-Proliferation Treaty ("NPT") regime that is essential to world peace and security. Such nations would heed some variation of the statement, perhaps apocryphal, but sometimes attributed to George Fernandez, the Indian Defense Minister, that "before one challenges the United States, one must first acquire nuclear weapons." It would be deeply contrary to the interests of the United States, as well as the interests of the world community, to encourage such a psychology. Also, there is the question of how to respond to a threat emanating from within a country but not from its government-for example, a country too weak to suppress a highly sophisticated terrorist organization operating within its territory. Could international law countenance an act of anticipatory self-defense, otherwise justified, against the territory of such a state and over the wishes of the government on the ground that the government in question was not in control of its own territory? This presents a difficult issue.For those inclined to see the current Iraq conflict as a "test case" for the Bush Doctrine, or for debaters looking for a different angle on the current resolution, Graham's article is worth reading in its entirety.
Jan 3, 2008
international law and "anticipatory self-defense"
In "National self-defense, international law, and weapons of mass destruction," in the Chicago Journal of International Law, Spring 2003, Thomas Graham Jr. declares that the Bush Doctrine of preemption isn't justified under international law. In a key passage, he analyzes Israel's attack on the Osirak reactor, which succeeded at largely thwarting Saddam's nuclear ambitions. Though strongly condemned as a violation of international law, did its success merit the action? Even adopting consequentialist logic, Graham argues it would not.