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THE NEOCONSERVATIVEBUH DOCTIRNE QUESTION OF LEGITIMACY

KEITH M SMILE
President of the Unied States George W. Bush declared in a june 1, 2002,
speech at West Poin that given the nature an type of threat posed by Iraq,
the United States had a legal right of self defense, as outlined in Article 51 of
the United Nations Charter. President Bush further elaborated we must take
the battle to the enemy, distupt his plans and confront the worst threats before
they emerge.
(DETERRENCE AND CONTAINMENT DURING THE COLD WAR)
Preemptive strikes are not new to international politics. A number of nations
resrted to this approach during boh the 19 th and 20th centruries. The departure
point fro the NSS is that it reserves the right to initiate military strikes against
another sovereign state despite the absence of a verifiable imminent threat. F

Relalists throsits consider diplomacy over military cforce an d amultilateral


approach to contaibnebt as opposed to a unilateral path.
Neo conservatist belived in the domino effect, that the removal of Saddam
Hussein would sen da signal to the middle east theat the military superiority of
the US should encourage other states to fall in line.
They reasoned that the strategy of pre emption would further their cause to
spread democracy as a tool to deter further terrorist activities and transform
the Islamic world a middle east region into democracies that looked more like
the US.
NSS 2002
The foundation of the Bsh Doctrine took root under the presidency of George H.
W. Bush. Followig the Iraqui invasion of Kuwait, Deparment of Defense officials
were directed to research and write a proposal for a new military and security
strategy. The final draft of the memorandum concluded that the realist poliies
of containment and deterrence had become ineffectual given the new threats
of rouge nationas and the ever growing concern of global terrorism.
The strategy ot the united states remains unchallenged as the worlds only
superpower, events may require a shift in policty to the use of first sritke
military force as a method of sef defense, and they should be prepared to act
unilaterally to confront the threat to security.
As the proposal ignited controversy, President Bush directed that the language
referring to pre emption an d unilateral action be rmoved. As a result, the
doctrine faded into the backgorun and the general US policy of containment
and deterrence continued thoughout the remaining Bush Term and Clinton
presidency

After the election of Geroge W. Bush there was a resurrection of the policy of
unlitareal pre emption, the group of neo conservative thinkers pusjhed the
notion of frist strike capability even further to conclude that the US should
aggerssiely confront hostile and militant Isalmic regimes adna n expansion of
democracy and capitalism throughout eh world.
After the terrost attacks in Spetember 2001, Presiden Bush beagn to lay the
foundation for changing national security strategy in reerrin g to Iraq, Iran and
North Korea as an axis of evil in staten that The united States of america will
no permit the worlds most dangerous regimes to threaten us with the world0s
most destructive weapons
Bush, George, The 2002 State of The union: We Will se freedoms victory.
Address at a Joint Session of Congress January 20, 2002. Vital Speeches of the
Say, 2002, Febuary 15: 258-262

The NSS directive posists and imminent, multifaceted, undeterabel and


potentially calamitous threat to the United States. A threat that, by virtue of
the combination of its destructiveness and vulnerability to deterrence, has no
precedent in Americn history. By implication therefore, such a threat demands
an unprecedented response. This unprecedented response, which is actually a
response based on precedence, is preemptive action:
NORMATIVE CONCEPTS
Is important to discuss both the contextual and institutiaonal influences which
privde the conceptual freameworks informing the legitimiacy and perhaps
morality of preemptive measures.
JUST WAR TRADITION
The central principles of sovereigny and just war traditions is the supremacy of
non intervention and nonaggression. FROM THIS PERSPECTIVE, THER EXISTIS
AND INHERENT EQUILITY BETWEEN STATES, A RIGH TO SELF DETEMRINATION
AND A UNIVERSAL OBLIGATION ONO NOINTERNVENITON.
Just war tradition inform the moral criteria for determining whether the use of
force is morally justified. Jus ad bellum (aookued tit e kegutunact if tge yse if
firce) ad jus in bello (pertaining to the just conduct of war).
The use of focre is legitimate when meeting the cireria of: just cause, right
intention, right authority, last reort and resonasble prospects of success.

IMMINENT CONDOLEEZA RISE


She elaborated on the notion of imminent in her defense of the Bsh Doctinre
notions of pre emptive self dfesn notin thtat extremists who seem to view
suicide as a sacrament are ulikely to ever be deterred. An d new technology

requires new thinking about when a threat actually becomes imminent. So as a


matter of common sense, the US must be prepared to take action, when
necessary, before threats fully materialize:

DOCTRINES OF US SECURITY POLICY: AN EVALUATION UNDER INTERNATIONAL


LAW

On 11 septembre 2001, 10 persons of non US American nationality, who were


associated with the militant Islamist terror network LA quaeda, hijacked four
commercial aircraft of American arilines and United Arilines. They chrashed
them into the Pentagon building in Wahington and the twin towers of the WTC
in NY, both towrs collapsed as a result of that crash. ONE AIRCRAFT CRASHED
INTO AN OPEN FIELD IN Pennsylvania. In total, more than 3,000 people of
different nationality, mainly US citizens, lost their lives.
NSS 2002
In conncection with a general definition of targets for US foreign policy, the
concepto of preventive action in order to ensure the United States own
security surfaced prior to th e NSS 2002 and is repeated in several passages:
The US national security strategy will be based on a distinctly American
internationalism that reflects the union of our values and our national
interests our goals, are clear: political and economic freedom, peaceful
relations with other states, and respect for human dignity TO achive these
goals the United States will: prevnt our enemies from threatening us, our
allies, and our friends, with weapons of mass destruction

With a hint of the special danges posed by weapons of mass destruction in the
hands of terrorists, the necessity of preventive action is emphasized:
As was demonstrated by the losses on September 11, 2001, mass civilian
casualities is the specific objective of terrirst and these loses would be
exponentially more sever if terrirsts acquired and used weapons of mass
destruction
The United States has lon maintained the opction of pre-emptive actions to
counter a sufficient threat to our national security. The greater the threat, the
greater is the risk of inaction.- and the more compleling the case for takin g
anticipatory action to defend ourselves, even if uncertainty remains as to the

time and place fo the enemys attack. To forestall or prevent such hostile acts
by our adversaries, the United States will, if necessary, act pre emptively

Presiden Bush had already formulated the principle of preventive self defence
as a principel of US security polici yn a speech at the US military Academy in
West point on 1 June 2002. A (esta en el otro texto)

Within the NSS 2002 it is states that an action , guided by these principles,
must be admissible according to international law in force, or at least ought to
be admissible.
CRITERIA OF THE BUSH DOCTRINE FOR THE USE OF FOCRE
The NSS 2002 mentions the preventive exercise of the right of self defence for
which the term pre emptive is used (to exercise our right of self defence by
acting preemptively)

EVALUATION OF THE BUSH DOCTIRNE UNDER INTERNATIONAL LAW

Consequencces of the use of force adter September 2001 for the ius ad bellum
have been discusse d (ver que se discute en otros textos)

The validity of the prohibition of the use of focre in article 2(4) of the UN CHrter
has been questioned. (ver que se critica)
-

Argumentos para que no es vigente Michael Gelnnon (ver) teh fog of law
Argumentos para ver que si es vigente
A course of action which may seem as a violation of law and is justified
as an exception to an existing rule, confirms the rules tan quesions it, no
matter if the justification brought foward isa pt or not. As long as a
violation of law is also considered as such and not as a step towards the
creation of customary law, a rule persists in sipte of inconsisten state
practice.
No change of rules aimed at the abandonment of the general prohibition
on the use of force has been pursued by states, in particular not by the
US. Instead, cases in which their conformity with the UN Charter eems to
be questionable, such as the intervention in Kosovo in 1999 and the
intervention in iRaq 2003, have been justified by the US as being
covered by exstitgin exceptions to the prohibition of force.

Therefore, the prohibition on the use of force in Article 2(49 of the UN


charter continues to exist as universal curstomary international law and
as ius cogens.

THE BUSH DOCTRINE AND THE RIGHT OF SELF DEFENCE


The limitation of a custormary right of self defence through artcle 51 of the UN
charter goes as far that also in the case of worrying, obvious military
preparations of a conventional armed attack, only an appeal to the Security
Council, but not a prevetinve use of force, shall be justified.
If one adheres to such restricitvie interpretarion of article 51 of the UN Charter,
which leaves no room for self defence without the ocrurces of an armed attack
and, hece anticipated self defence, the cases of use of force foreseen int eh
BUush doctrine are always illegal, no matter how the criterion of imminence is
evaluated.
The supporters of Bush dorctinre draw on the Caroline formula but to what
extent a regulatory conten of its own is atrirbuted to eh Caroline formula=. It is
assumed that this formula refers only to acustomary pre Charter right, hence,
no independent meaning is attributed to it. On the other hand, it is assumed
that the Caroline formula also has an independent meaning under the UN
Charter, because the Crieria of necessity and immediacy determined within
it constitute criteria for the exercise of self defence recognized by customary
international law. These criteria may be consulted in order to determine
whether the requieremnt of an armed attack is fulfilled.

When an armed attack can be considered as begun? The ICJ absatianed in 1986
form answering this question explicity in the Nicargua case.
Accordin to thi opinion, which considers the occurrence of a armed attack as
compellingly necessary for the justification of the use of force in self ddefnece,
a narrow scope for the application of the caroline formula as an aid for
answering the question when an armed attack occurs persists.
Starting with the notion that the parties to the treaty when signin the UN
Charter in 1945 did not intend to limit the right of self defence , already
narrowly constrained by the Croline formula, any further, the wording in case of
an armed attack should at least not be understood as after an armed attack.
Hence, a state shall be entitled to self defence in case of a not yet advanceced
armed attack if the occurece of an armed attack is considered as a
compellingly necessary prerequisite for the exercise of sefl defence.

(plantear bajo que criterios o interpretacion la doctrine Bsuh puede ser licita y
luego ver si estos se cumplen en la guerrariak 2003)

The danger lies in the subjective predction recognised in the NSS 2002 (nor
shoud nationas use pre-emption as a pretext for aggression#. The wording,
which seems to forsee the use of force a long time before the actual occurrence
of an armed attack, reds,: to preempto emerging therats Narrowly interpreted,
an emergin thrat is understood merely as an imminent armed attack (criterio
para que sea legitimo)

The ciretion of the Bush doctrine may be open to a restrictive interpretation


htat the doctrine can also be interpreted as being in conformity with the UN
Charter as contra legem. Yet this is not possible for the explcit abandonment of
the criterion of temporary imminence of an armed attack in the NSS 2002: the
greater the threat the greater

Hence, the principle for the use of force contained in the Bsh doctrine are
illegal and the statement of the NSS 2002 n the crierion of an imminent threat
stetment de lege ferenda, which must be considered with regard to the rule of
forces as potentially blasting the system.

THE BUSH DOCTRINE AND THE PREVIOUS LEGAL OPINION OF UNITED STATES
ON PREVNETIVE SELF DEFENCE
A DUTY TO PREVENT Feinstein
The US NTIONAL SECURITY STRATEGY AND THE NEW BUSH DOCTIRNE ON
PREVENTIVE ELF DEFENSE GRAY

THE LAW AN THE USE OF FORCE AFTER IRAQ ROBERTS

THE UNIPOLAR MOMENT REVISTIED CHARLES KRATHAMMER THE


NATIONAL INTEREST 2002 /2003

September 11
- first came the with us or against us ultimatum to any state aidin, abetting or
harbotin terrorist
- then, pre emptive attack on any enemy state developing weapons of msass
destruction.
- Now , regime change in any such sate.

The boldness of these policies is breathtaking. The American anti-terroism


ultimtatum, it is said, is high handed and permits the arbitrary application of
Amercan power everywere. Pre-emption is said to violate traditional doctrines
of just war.
Realists

FROM 9111 TO THE IRAQ WAR 2003 INTERNATIONAL LAW IN AN AGE


OF COMPLEXITY
LINK BETWEEN 011 AND THE IRAQ WAR 2003
Although there was no evidence of any involvement by Iraq in the attacks on
the US on 11 September 2001 (ver texto de Jeffrey record), the sitation in Iraq
had become the focus of world attention .
Tony Blair stated that there was a serious risk that rouge states, like Iraq, were
developing and proliferationg weapons of mass destruction and would supply
tjhem to terrosits organisations to which it had links, like al queaeda. (See
trasncrip of interview on Newsnight 6 february 2003 http://www.news.bbc.co.uk
www.numberto.gov.uk )
Iraqs alleged WMD represented a clear an present danger, if not necessarily an
imminent one. The link back to 11 september was clearly expressed by US
presiddeetn Bush in a televised white house press conferecnee on 6 march
2003: The attacks of Septmeber the 11th, 2001, showed what the enemies of
the US did with four airplanes. We will not wait to see what terrorists or
terrorists states could do with weaopons of mass destruction.

Septmeber 11 had also challenged the fundamental assumptions of the


doctrine of nuclear deterrence and its basis in muttualy assured destruction:
Throughout the 1990s, it had been assumed that WMD posed no emergency
because traditional concepts of deterrence would hold. September 11 revealed
the possibility of future WMD- armed enemies being both undeterrable and
possibly undetectable. The 9/11 suicide bombers were undeterrale; the author
of the subsequent anthrax attacks had proven undetectable. The possible
alliance of rounge states with such undeterrables and undetectables- and the
possible transfer to them of weaopons o mass destruction- presents a new
strategic situation that demands a new strategic doctribe

C. Krauthammer The unipolar moment Revisited: America, the Benevolent


Empire, in Iraq War reader, N 24 abov, 593 597 (PAGE 9)

INTERNATIONAL LAW AND the IRAQ WAR


The principal legal argument was the various SC resolutions provided a legal
authorization fot he use of force.
Lor Goldsmith summarized the legal basis for the use of forces as follows:
Authority to use force againt Iraq existis form the combined effecto of
reoslutions 678, 687 and 1441. All of these reslutions were adopted under
Chapter VII of the UN Charter, which allowes the use of force for the express
purpose of restoring international peace and security.

Foreign and Commonwealth Offices Memorandum on Iraq: The legal basis of


the use of focre (FCO Memorandum).

His process of reasoning was as follows:


a. In resolution 678 the Scurity Council authorized force against Iraq, to
eject it from Kuwait and to trestore peace and security in the area.
The weapons inspectors remained in Iraq until 98 when they left because
of the lack of cooperation by Iraq and the same happened later in 2002.
b. In resolution 687, which set out the ceasefire conditions after operation
Desert Storm, the Security Council imposed continuing obligations on
Iraq to eliminate its weapons of mass detruction in order to restore
international peace an security in the area. Resolution 687 sspended but
did not terminate the authority to use force under resolution 678.
c. A material breach of resolution 687 revives the authority to use force
under resolution 678
d. In resolution 1441 the SC determined that IRAQ has been and remains in
material breach of resolution 687, because it as not fully complied with
its obligations to disarm under that resolution.
e. The security Council resolution 1441 gave Iraq a final opportunity to
comply with its disarmament obligations1 and warned Iraq of the
serious consequences if it did not.
Becouse Iraq has not provided an accurate full final and complete
disclusre, as require by resolution 687 (91), of all aspects of its
programmes to develop WMD and ballistic missiles

An earlier draft of what became paragraph 4 fo Reoslution 1441 had steted


means to restore international peace and security to the area. This text did
not appear in the adopted resolution, because ob objection form France dn
Russia.

The legal argument based on these resolutios is to the effect that the
combination of resolution 678, 687 and 1441 provided a legal basis for the use
of force. The second foundation of the argument is that the Iraq war was
authorized by SC resolution is that the material breach by Iraque resuscitated
the authority of resolution 678 in the same way that a material breach by a
state of a ceasefire in an inter state conflict resuscitates the right of the other
state to use forcrce. This was, at least, one of the serious consequences to
which Reoslution 1441 referred.

THE LEGAL BASIS OF PREEMPTION WILLIAM H TAFT IV 2002


http://www.cfr.org/international-law/legal-basis-preemption/p5250

We no longer live in a world where only the actual firing of weapons


represents a sufficient challenge to a nations security to constitute maximum
peril Presiden Kennedy spoke those word in the context of the Cuban missle
crise in 1962.

Within the traditional framework of self defense, a preemptive use of


proportional force is justifies only out of necessity. The concept of necessity
includes both a credible, imminent threat and the exhaustion of peaceful
remedies.

In the case of isrel an 1981 agreed that Israel had filed to exhaust all peaceful
means for resolution of the conflict. In fact, this was the sole reson given by the
US as an explanation for is conclusion that Israel had violated the Carter.
Furthermore, bearley every memebre pointed that the Iraqui reactor was in full
compliance, at the time, with obligations under the Non proliferation Traety.
Many belived the threat was too tenuous, as the Iraqeui facility would have
required radical alteriation to produce wapon components.

The chief concern of the Members in 1981, and likely of the world today, were the
implications of Israels justification of the attack. Many viewed the rationale as an
unlimited concept of self-defense against all possible future dangers, subjectively assessed.
This would certainly have been a dangerous precedent to set, if permitted without clear
and absolute necessity. However, the members had imposed limits by evaluating the
individual circumstances of the situation against the tests of necessity and proportionality.
In the eyes of the United Nations, Israel had not met the exacting standards of that test.

The Presidents National Security Strategy relies upon the same legal framework applied to
the British in Caroline and to Israel in 1981. The United States reserves the right to use
force preemptively in self-defense when faced with an imminent threat. While the
definition of imminent must recognize the threat posed by weapons of mass destruction
and the intentions of those who possess them, the decision to undertake any action must
meet the test of necessity. After the exhaustion of peaceful remedies and a careful,
deliberate consideration of the consequences, in the face of overwhelming evidence of an
imminent threat, a nation may take preemptive action to defend its nationals from
unimaginable harm.