Cite as: Matthew Klapper, The Bush Doctrine and North Korea, 8 Gonz. J. Int'l L. (2004-05), available at http://www.gonzagajil.org/.
The Bush Doctrine and North Korea
Matthew Klapper[1]
Introduction
The threat of weapons of mass destruction is not new. In the 21st century, the old fear of Soviet Communism and "mutually assured destruction" has been replaced by apprehension that unpredictable "rogue" states such as North Korea will continue to violate various nonproliferation treaties by developing nuclear weapons and other weapons of mass destruction (WMD) and eventually use these catastrophic weapons. Viewing the possession of such catastrophic weaponry as the "currency of power," North Korea has developed nuclear weapons in order to be taken seriously in the international community.[2] Aside from the danger that North Korea would use such weapons against the United States and its allies, there is also the concern that it might sell these weapons or its (Pakistani) nuclear weapons technology to other rogue states or terrorist organizations.
George W. Bush was the first United States President to explicitly support the doctrine of preemptive self defense as a rationale for going to war. With concern that Saddam Hussein remained a dangerous proliferator of nuclear weapons and a significant threat to the Middle East and to the rest of the international community, the U.S. preemptively attacked Iraq and removed Hussein and his Ba'athist Party from power in order to neutralize this perceived threat. In President Bush's own words, "the greater the threat, the greater is the risk of inaction...the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack. To prevent or forestall such hostile acts by our adversaries, the U.S. will, if necessary, act preemptively."[3] Given the president's explicit endorsement, preemptive self defense or "preventative war" has come to be known as the "Bush Doctrine."
Conceptually, the Bush Doctrine is not new; previous administrations, such as the Reagan and Clinton administrations, used preemptive military force.[4] Nevertheless, because George W. Bush was the first American president to explicitly endorse the doctrine of preemptive self defense, it now bears his name. The Bush Doctrine remains controversial as many in the international community question its compatibility with customary international law and the United Nations Charter. Considering the magnitude of the threats posed by terrorist groups like Al-Qaida and rogue states that implicitly or explicitly support terrorism and the proliferation of WMD, the Bush Doctrine is seen by some as a pragmatic response to this new reality.[5] Proponents of the Bush Doctrine and its ideological predecessors argue that the international community has failed to control the proliferation of nuclear weapons.[6] Thus, it is necessary to strike preemptively in order to remove the threat posed by these rogue states, which if otherwise left unchecked will continue to develop and likely use these highly destructive weapons.[7]
In the abstract, the Bush Doctrine gives State A the legal authority to destroy State B's ability to develop nuclear weapons if State A has some evidence that State B would attack State A with such weapons.[8] Therefore under the Bush Doctrine, State A has the right to protect itself by removing the threat posed by State B.[9]
During the State of the Union address on January 28th 2003, President Bush informed the American people and the rest of the world that "[t]he British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa."[10] President Bush also declared that "[t]he course of this nation does not depend on the decision of others. Whatever action is required, whatever action is necessary, I will defend the freedom of the American people."[11] Unfortunately, intelligence that was presented as proof that Saddam Hussein was in fact an imminent threat to the U.S., has since been discredited.[12] As the Bush Doctrine allows a state to act before an armed attack is imminent or even before there is any warning that an attack is being planned, the legitimacy of such a use of force necessarily depends upon the validity of the foreign intelligence used to determine that a significant threat exists. When such intelligence is wrong, chaos and political instability may be the unfortunate byproducts of a preemptive attack. The recent war in Iraq provides an excellent example of the disastrous consequences of declaring war based on faulty intelligence.
Given that the United States remains the only military superpower in the world and has assumed a large role in "policing" the international community, the task of preemption since World War II has fallen largely upon it to decide when force is necessary. Nonetheless, the actions of the United States do not take place in a vacuum. Common sense suggests that improper application of preemptive self defense, which violates another state's sovereignty, is likely to create animosity, provoke armed reprisals, and/or in the extreme could lead to nuclear war. A panel selected by the Bush administration reported that "hostility toward America has reached shocking levels" among Arab and Muslim peoples.[13] Moreover, there is concern that the United States not be seen by its Western allies as having put "itself above the law," as the U.S's legitimacy depends in part on allies' "belief in [the U.S.'s] benign use of power."[14] Otherwise, the United Nations will mean very little if other member states are forced to accept that the Charter is to be interpreted as binding on all states except for U.S.
The current war in Iraq serves to demonstrate that illegitimate or hasty applications of preemptive self defense can have a significant impact on the United States' credibility and standing in the international community. According to one jurist, the United States, following the 9/11 attacks, turned its back on the international institutions it helped to create. Harold Koh has stated:
turning to the United States, the final member of the "axis of disobedience," our greatest surprise should be how quickly after September 11th we turned the story from the non-compliance of others with international law, to our own non-compliance. Examples abound: first and most obviously, the U.S. unsigning of the International Criminal Court Treaty; second, the U.S. attitude towards the Geneva Conventions - including its actions in Abu Ghraib, its decision to create zones in Guantanamo in which people are being held without Geneva Convention rights as well as to designate certain U.S. citizens within the United States as enemy combatants...What we are witnessing is nothing less than an assault by our government on the transnational legal process that we created after World War II in our own perceived national interest.[15]
Juan Cole, a harsh critic of the current Bush Administration, notes the instability in Iraq and its effect on its surrounding neighbors, who "fear that the chaos in Iraq will reach out in a wave of destabilization that will bring not democracy but [sic] religious radicalism and terrorism."[16] In short, there is the fear that President Bush's arguably antagonistic foreign policy may have the unintended effect of making the U.S. more vulnerable.
Preemption is generally understood to be an expansion of the traditional right of self defense. The first section of this article is intended to discuss and explain customary international law with respect to self defense in general. Secondly, this article will consider whether the Bush Doctrine violates Article 2(4) and Article 51 of the United Nations Charter. Lastly, in presuming that Operation Iraqi Freedom will not be the sole application of the Bush Doctrine, the final section of this article will address whether the United States should launch a preemptive attack against North Korea, whose development of nuclear weapons violates numerous nonproliferation treaties and poses a significant threat to the U.S. and its Asian allies.
I. The Right of Self Defense and Customary International Law
The current international legal regime recognizes that each internationally recognized state possesses sovereignty and acts autonomously.[17] Since the emergence of the state-based international system, the right of self defense has been considered one of the central tenets of statehood and a fundamental principle of natural law.[18] As part of natural law, a state's right to defend itself cannot be derogated by another state or international organization, such as the U.N. or NATO.[19] Parallel to the individual right of self defense, each state has the inherent right, which predates positive law and the UN Charter, to protect itself from territorial invasions or actions that threaten the stability of the government.[20]
Thomas Jefferson once wrote that "[t]o lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means."[21] The state as conceived by the United States Constitution[22] cannot exist without its civilian population. Echoing Thomas Jefferson's sentiments, Secretary of State Dean Acheson remarked during the Cuban Missile Crisis that "[t]he survival of states is not a matter of law".[23] Put in yet another way, William Bradford finds that "although states generally tailor their conduct to conform with principles of international law, where they perceive, rightly or wrongly, an emergent threat to their survival or their vital interests their propensity is to react without regard to legal ramifications or the potential for condemnation by the international community."[24]
Those in favor of the Bush Doctrine maintain that circumstances surrounding the Caroline decision and the drafting of the UN Charter have changed dramatically.[25] Now, nuclear weapons continue to proliferate and the Cold War threat of "mutually assured destruction" has been replaced by the far more uncertain and irrational threat posed by terrorists and rogue states. Given that nuclear weapons dramatically reduce the time needed for a state to adequately respond to an attack capable of killing thousands, if not millions, of civilians, preemptive self defense is arguably an appropriate and necessary expansion of the natural right of self defense to effectively counteract the proliferation of and prevent the use of nuclear weapons.[26] In 1962, John F. Kennedy reflecting upon the threat posed by nuclear weapons to the international community stated that "[n]uclear weapons are so destructive and ballistic missiles so swift that any substantially increased possibility of their use or any sudden change in their deployment may well be regarded as a definite threat to peace."[27]
In the Post-9/11 era, one jurist in favor of a proactive counterproliferation foreign policy argues that any law which requires a state to refrain from using force until it has been clearly established that another state is about to launch or has commenced a nuclear attack violates a state's natural right to protect itself.[28] Furthermore, any law requiring a state to establish with certainty that its survival is in imminent jeopardy before acting to destroy this threat defies common sense, especially given the speed with which ballistic missiles can deliver deadly attacks. Based on John Locke's "social contract theory," the U.S. and other states recognize a duty to protect their citizens from invasions and nuclear attacks-both of which effectively rob an individual of his/her life, liberty, and property.[29] Recognizing this "supreme duty,"[30] President Bush, in the 2003 State of the Union Address, echoing John Locke and Thomas Jefferson, decisively pronounced that the U.S.'s obligation to protect American citizens exceeds its obligation to strictly adhere to international law.[31]
On the other hand, preemptive strikes based on bad intelligence may have the undesired effect of provoking deadly reprisals that deprive citizens of their life, liberty, and property. Ian Brownlie warns that "‘no warring nation will, in times of extreme danger, deny itself the use of any weapons that scientific techniques can supply.'" [32] Brownlie urges that prohibition on the use of force must be strictly enforced in order to minimize the possibility that actions taken in self defense might lead to the use of nuclear weapons.[33]
Self defense as an international legal concept has been difficult to define precisely because in practice it involves inherently subjective decision-making by state leaders. For this reason, there is concern that the right of self defense has and will continue to be abused by states seeking to legitimize improper uses of force.[34] As one jurist noted, "[t]he right of self-preservation had always been capacious enough to justify action beyond what was necessary for the maintenance of the integrity of the territorial domain of the state."[35]
Nevertheless, customary international law requires states acting in self defense to respect the principles of proportionality and necessity.[36] For the purposes of this article, the principle of necessity rather than proportionality receives far greater attention as the former principle is far more difficult to define and thus the subject of contentious scholarly debate. Concisely defined, the rule of proportionality, jus ad bellum, establishes that in order for a state to avoid the label, "aggressor state," the degree of force employed cannot be greater than that used by the opposing state.[37] For example, a state should not use nuclear weapons to defend itself against a platoon of tanks.
In Nicaragua v. United States, the International Court of Justice held that under customary international law states have the right to use force when necessary to prevent an armed attack.[38] The Caroline decision established the principle of necessity with respect to the right of self defense.[39] Caroline involved an attack by British soldiers on an American ship docked in the United States near the U.S.-Canada border, which killed 12 American civilians. Significantly, the thirty-three American citizens aboard the ship had been employed to supply a Canadian insurgent group that had been launching attacks against British military forces in Canada.[40] In an act of diplomacy, the United States and Great Britain agreed that the use of force in the future should be limited to circumstances in which the "necessity of self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation." [41] Based on Caroline, a majority of legal scholars recognize that states have a right of anticipatory self defense in responding to "attacks that are on the brink of launch" or in situations in which the state has been attacked and "more attacks are planned."[42]
While anticipatory self defense and preemptive self defense are similar, preemption significantly expands the notion of self defense by excluding the imminence requirement established in the Caroline decision. While anticipatory self defense requires some evidence of a planned attack, preemptive self defense, as propounded by President Bush, allows the U.S. to use force "to quell any possibility of future attack by another state" even when there was no previous attack and no evidence to show an attack was being planned.[43] Given this significant distinction, the Bush Doctrine should not be considered merely a contemporary adaptation of the Caroline, but rather a further expansion of the right of anticipatory self defense.
The "Cuban Missile Crisis" in 1962 serves an example as how two states, even military superpowers at the apex of the Cold War, were constrained by customary international law principles of self defense.[44] Approaching the precipice of nuclear war, the Soviet government instead agreed to begin the "dismantling and withdrawal from Cuba of all missiles and other weapons with any offensive capability" in exchange for the United States' agreement to remove nuclear missiles from Turkey.[45] The "Cuban Missile Crisis" demonstrates that international cooperation is possible even for states at the brink of mutual annihilation and international law can help to facilitate peace and stability.
The "Cuban Missile Crisis" also serves to illustrate how different circumstances are today. Whereas before the United States primarily concerned itself with containing the monolithic Soviet Union and preventing the spread of communism by deterrence, the U.S.'s "post-9/11 strategy focuses on threats from smaller (state and non-state) actors and relies on preemptive strikes against terrorists' and hostile states suspected of developing nuclear, biological, and chemical weapons."[46] As the sole hegemonic military power in the world, the United States now has to respond to and diffuse multiple threats posed by rogue states and terrorist groups who, unlike the Soviets, reject diplomacy and international cooperation. William Bradford, a leading proponent of the Bush Doctrine, argues that circumstances following the terrorist attacks on U.S. soil on September 11th, 2001, require the right of self defense be expanded to justify preemption,[47] as endorsed by the Bush Administration.[48]
There are jurists, however, that question the legality and the ramifications of the Bush Doctrine.[49] Some jurists argue that the application of the Bush Doctrine as legal justification for going to war in Iraq in 2003 sounds the death knell for the U.N. Charter.[50] Richard M. Gardner writes:
The Bush doctrine, if it is intended to assert a right available to the United States alone, is obviously unacceptable. If it is intended to assert a new legal principle of general application, its implications are so ominous as to justify universal condemnation. For such a doctrine would legitimize preemptive attacks by Arab countries against Israel, by China against Taiwan, by India against Pakistan, 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.[51]
Gardner argues that the threat of terrorism or of rogue states, like Iraq under the control of Saddam Hussein, does not warrant an expansion of the right of self defense.[52] In his critique of the Bush Doctrine, Gardner references the dissent from Korematsu v. U.S., which involved the detainment of American citizens of Japanese descent during World War II. "By expanding the right of preemption against an imminent attack into a right of preventive war against potentially dangerous adversaries, the Bush administration has created a ‘loaded weapon' that can be used against the United States and against the general interest in a stable world order."[53] Gardner contends that the most recent Iraq War can be justified by the Hussein regime's repeated "material breaches" of U.N. Security Council Resolution 687.[54] Therefore, the Bush Doctrine is not only "counterproductive" but "unnecessary,"[55] as U.N. Security Council Resolution 678, prior to the Persian Gulf War, authorized the use of force not only to liberate Kuwait but to "restore peace and security in the area."[56] Henry Kissinger, not known for his passivity during the Cold War, expressed concerns that the Bush Doctrine has unwisely expanded the right of self defense. He has stated that "[i]t cannot be in either the American national interest or the world's interest to develop principles that grant every nation an unfettered right of preemption against its own definition of threats to its security."[57]
The Nuremberg Charter is an influential source of customary international law that was used to prosecute Nazis who had committed "crimes against humanity," which included "murder, extermination...and other inhumane acts committed against any civilian population."[58] As likely any use of nuclear weapons would devastate civilian populations, such action can arguably be considered a "crime against humanity" based on this definition,[59] and thus such military conflicts involving nuclear weapons or other WMDs must be avoided at all costs.
The UN Charter was not the first multi-national treaty to attempt to restrict the use of military force. In 1928, more than seventy states eventually became parties to the Kellogg-Briand Pact, which condemned the use of war as a means of resolving international controversies and obligated states to settle dispute "only by pacific means."[60] While the United States is not a party to the Kellogg-Briand Pact, it has been a party since 1934 to the Saavedra Lamas Treaty, a treaty with a parallel purpose to that of the Kellogg-Briand Pact.[61] Like the parties to Kellogg-Briand Pact, the drafters of the United Nations Charter recognized war as an extremely disruptive and destructive manner in which to resolve international disputes.[62] Notably however, the drafters of the Charter, having recognized the failure of these multi-national treaties to prevent WW II, sought to further restrain states from using force.[63]
II. The United Nations Charter
The preamble to the United Nations Charter states, "WE THE PEOPLES OF THE UNITED NATIONS DETERMINED to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind..."[64] The International Court of Justice in Nicaragua v. United States noted that "[b]oth the Charter and the customary international law flow from a common fundamental principle outlawing the use of force in international relations."[65] Nevertheless, the UN Charter can be distinguished from customary international law in that it further restricts the right of self defense.[66] While the UN Charter was drafted prior to the development of nuclear weapons, it is logical to assume that the drafters, who had witnessed firsthand the enormous destruction and death caused by conventional weaponry, would logically have prohibited the use of WMDs as their potential for inflicting mass casualties may exceed conventional weaponry. As suggested by the preamble and made legally enforceable in later articles, the Charter's express purpose is to prohibit such devastating uses of force.
A. Article 2(4)
The UN Charter is intended to prevent the "scourge of war," and consequently states have been afforded an extremely limited right to use armed force. [67] If the UN Charter is to have any real significance as to this primary objective, it is argued that customary international law must conform to the Charter.[68] One legal scholar posits that the Charter's express purpose is to "render the unilateral use of force, even in self-defense, subject to control by the Organization" in order to rid the world of the "scourge of war."[69] Mary O'Connell reaffirms, arguing that "[t]he UN Charter was adopted for the very purpose of creating a far wider prohibition on force than existed under treaty or custom in 1945, let alone 1842 [referring to the Caroline decision.]"[70] Specifically, Article 2(4) of the UN Charter requires all states to "refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the United Nations."[71]
As all but a few states are members of the U.N. and recognize the legitimacy of the U.N. Charter, Article 2(4) is binding on nearly all states.[72] Yet, there is still much dissention among jurists as to the "content and scope" of Article 2(4) with regard to its prohibition on the use of force.[73] To the consternation of developing states, developed states have consistently maintained that the prohibition on "force" refers exclusively to military force and does not include economic/trade sanctions.[74]
Another issue of interpretation involves Article 2(4)'s instruction that states are not to use force that interferes with "the territorial integrity or political independence" of another state.[75] Most legal scholars agree that this phrase was not intended to qualify the inherent right of states to defend themselves, "but, on the contrary, to give more specific guarantees to small states" in order to strengthen the prohibition on illegitimate uses of force."[76] If this phrase is intended to act as a qualification, Article 2(4) would then permit states to use armed force as long it did not involve invasions or lead political instability. Given the Charter's emphasis on international cooperation and diplomacy, Article 2(4) should be interpreted broadly or such qualified uses of force will defeat the Charter's purpose in promoting international peace and security.
Article 2(4) is regarded as one of "the most far-reaching limitation[s] ever adopted on the use of force by States against one another."[77] Taken in concert with other U.N. articles, the intention of the drafters to further restrict unilateral acts of aggression seems logical. Article 1 declares that the purpose of the UN Charter is to "maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression [italics added]."[78] Subsequent paragraphs in Article 1 also refer to developing "friendly relations among nations," "international cooperation," and the need to "harmonize the actions of nations."[79] Language similar to that in Article 2(4) also appears in Article 24(1), which authorizes the Security Council to act on the behalf of states for the "maintenance of international peace and security."[80] Rather than immediately resorting to using force, Article 33 requires "[p]arties to any dispute, the continuance of which is likely to endanger the maintaining of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice."[81] If diplomacy fails and "any threat to the peace, breach of the peace, or act of aggression" is deemed by the Security Council to exist, Article 39 authorizes it to employ "measures not involving the use of armed force," i.e. economic sanctions and/or the severance of diplomatic relations.[82] Finally as a last resort, Article 42 permits the Security Council, and not states, "to take such action by air, sea, or land force as may be necessary to maintain or restore international peace and security."[83] In consideration of these additional articles of the UN Charter and the non-binding preamble passage, the Bush Doctrine, which endorses unilateral state action irrespective of the Security Council, at first blush appears inconsistent with Article 2(4)'s prohibition on the use of force.[84]
The legality of the Bush Doctrine in light of Article 2(4) is of course a contentious issue. Guy Roberts argues that Article 2(4) is no longer "good law" in that it is "clearly inconsistent with the overwhelming realities of state practice and the international system; a system in which the norm eschewing the use of force is violated frequently and with impunity."[85] William Bradford sidesteps the issue of whether Article 2(4) is "good law" by instead arguing that with respect to the United States, the government's duty to protect its citizens supercedes its duty to adhere to Article 2(4).[86]
B. Article 51
Within the U.N. Charter, Article 51 provides one significant exception to Article 2(4)'s broad prohibition on the use of force. This article provides that "[n]othing 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 until the Security Council has taken measures necessary to maintain international peace and security."[87] Article 51 recognizes that each state has the inherent right to protect itself from armed attacks that cannot be derogated. The Bush Doctrine's expansion of the right of self defense and use of force by states conflicts with the UN Charter, which prohibits the unilateral use of force except under "exceptional" circumstances.[88]
In light of the primary purpose of the Charter, Article 51 is intended to be a narrow exception to Article 2(4). The right of self defense as conceived by the drafters of Article 51 is further limited because this right is lost once the Security Council acts to restore international peace and security.[89] Christopher Greenwood concludes that preemptive self defense could be compatible with the UN Charter if the sole authority to use preemptive force resided in the Security Council. [90] If this were adopted, the Security Council could authorize states to preemptively take military action in order to remove threats that were deemed "not yet imminent." But when considering the present lack of consensus among members of the Security Council, it is unlikely that a regime based on collective preemptive self defense would be an effective alternative to the current legal regime. Not surprisingly,[91] the United States as the lone military superpower is uncomfortable with entrusting its survival to the Security Council and subordinating its military forces to the U.N.[92] William Bradford maintains the position that U.S. membership in the U.N. does not suspend natural law, which governs the rights and duties that form the "social contract" between the U.S. and its citizens.[93] Thus, if the U.S. perceives a threat, not-yet-realized or imminent, natural law imposes a duty to protect its nationals and its interests, which supercedes its duty to the U.N.[94]
As with Article 2(4), the scope and content of Article 51 is a contentious issue among legal scholars. A minority of legal scholars, for example, have questioned whether the "armed attack" clause in Article 51 serves as the only exception to Article 2(4). In recent times, the Security Council has authorized the use of force for humanitarian purposes.[95] Guy Roberts urges that Article 51 must be interpreted expansively or otherwise it will cease to have any relevance. "The law is not a suicide pact...it is a process, more than just rules, that...controls state behavior."[96] As long as there are states who are willing ito sell nuclear weapons to the highest bidder, [97] it is argued that international law must recognize the right of states to prevent dangerous dictators and terrorists from developing or acquiring nuclear weapons. Following the terrorist attacks on September 11, 2001, William Bradford argues that any interpretation of Articles 2(4) and 51, which requires the U.S. to hold off taking action until the imminent threat of nuclear attack materializes, is null and void as they are in violation of natural law,[98] which contractually obligates the state to defend itself and its citizens against "existential threats" like terrorists and WMDs.[99]
In 1967, Israel arguably engaged in the first significant use of anticipatory self defense in modern history by striking first against Egypt based on intelligence that its Arab neighbors were planning to attack.[100] As Israel had technically violated Articles 2(4) and 51, the Soviet Union drafted a resolution which "condemned Israel for [the] unlawful resort to force," but this resolution was not passed by either the Security Council or General Assembly.[101] Anticipatory self defense was justified on the reasonable assumption that if Israel had not struck first it likely would not have been able to properly defend itself against simultaneous attacks by Egypt, Syria, and Jordan.[102] A majority of the international community agreed[103] with Israel that the Caroline test had been satisfied as the necessity of self defense was determined to be reasonable and necessary to ensure the survival of the state of Israel.[104]
In 1981, by contrast, Israel was strongly condemned by the Security Council when it acted unilaterally to destroy an Iraqi nuclear reactor.[105] While Israel contended that Iraq was using this reactor to develop nuclear weapons, a significant threat given that the two nations were in a "state of war,"[106] the U.N. Security Council did not agree that anticipatory self defense was justified.[107] The Security Council's condemnation of Israel was has been construed as an outright rejection of the anticipatory self defense doctrine.[108] Israel failed to provide sufficient evidence to the international community that the threat was, to quote the Caroline, "instant, overwhelming . . . [and] leaving no moment for deliberation,"[109] an exercise of action sharply criticized by many legal scholars.[110]
Guy Roberts, a proponent of preemptive self defense, argues that in light of Iraq's refusal to sign an armistice agreement with Israel following the war in 1967,[111] Iraq's professed intent to make a nuclear weapon and use it to attack Israel,[112] and its status as a "rogue" state,[113] Israel's bombing of the Iraqi reactor in 1981 was a justifiable application of anticipatory self defense.[114] Thus, Israel and Iraq remained in a "state of war," and the latter was "certainly on notice that any threat, whether it be WMD or conventional, would result in a response by Israel."[115] Some legal scholars maintain that Israel's attack severely disrupted Iraq's development of nuclear weapons, and thus prevented Iraq from attacking Israel with a domestically produced nuclear weapon attached to an available Scud missile during the first Persian Gulf War.[116] In light of the UN's inability to control the proliferation of nuclear weapons, acceptance of the Bush Doctrines appear to require Article 51 to be interpreted broadly enough to encompass ASD and preemption lest the Charter violate natural law.[117]
The failures of "collective security" regime, devised by Article 51, under the control of the Security Council are well-recognized.[118] John Austin, an influential 19th century scholar, denied the existence of international law altogether on the basis that "[l]aws properly so called are a species of commands. But, being a command, every law properly so called flows from a determinate source."[119] Although the purpose of the UN was to establish a "new world order" based on collective security, the Charter does not include a code of international law and the Security Council was never intended to be an international body to police and enforce internationally law.[120] As sanctions issued by the Security Council are not "centrally directed" by an international executive power, enforcement of international law remains difficult.[121] Unlike domestic law whereby the law breaker is "comparatively feeble" in relation to the community or the state, states like the United States[122] are not equivalently subordinate to the international community at large. As international law has no "determinate source,"[123] some advocates of preemption consider international law to be "epiphenomenal" in that state leaders are constrained only by the limits of their power relative to other states.[124]
Although one could argue that the UN Charter has been effective in preventing a catastrophic world war, it has not made war or lesser uses of military force obsolete. Ian Brownlie argues that Articles 2(4) and 51 of the Charter have become part of customary international law and are opinio juris given the large number of States who have accepted the obligations and purpose of the Charter.[125] It is arguably inaccurate to proclaim Article 2(4) and Article 51 as opinio juris when the actions of the U.S. do not reflect any legal obligation to comply with Articles 2(4) and 51. For example, since the UN Charter was entered into force, the United States has unilaterally fought wars in Vietnam, Grenada, Panama, and most recently in Iraq (along with a "coalition of the willing"). These wars suggest that the absence of approval by the Security Council in no way inhibits states from declaring war or using force against other states.
Some jurists in favor of the Bush Doctrine argue that Articles 2(4) and 51 of the UN Charter should be disregarded in favor of a new legal regime that more accurately reflects state practice. As the current international legal paradigm has allowed states like Iraq and North Korea to effectively frustrate the efforts of UN inspectors, advocates of the Bush Doctrine maintain that this paradigm is simply unacceptable given the nature of the risk posed by nuclear weapons. One jurist states that "[a]s it currently stands we either provide tortuous and not-very-convincing legal justification for our [United States'] actions or we end up hobbling ourselves with legal restrictions against carrying the war...to those who intend to us and our way of life severe harm."[126] Unlike the current legal regime, it is argued that the Bush Doctrine puts rogue states and terrorists effectively on notice that their illicit development of nuclear weapons will not go unpunished and that the United States will not wait to be attacked.[127]
Louis Henkin, a distinguished legal scholar, contends that international law is not intended to constrain the "Hitlers" of the world from acting aggressively.[128] Rather, "international law aims at nations which are in principle law-abiding but which might be tempted to commit a violation if there were no threat of undesirable consequences."[129] Despite the absence of a mechanism for controlling state practice, Henkin finds that states generally comply with international law based on fear of "extralegal" consequences such as harming friendly relations with another state.[130] Given the human casualties that would result if a nuclear bomb was detonated near a major metropolitan area, it is unlikely that any state, especially the U.S. following the September 11th 2001, terrorist attacks, would be willing to rest its survival or the lives of millions of its citizens solely upon extralegal consequences.
III. The Bush Doctrine and North Korea
International law like its domestic equivalent requires states to provide evidence that another state poses a substantial threat to international peace and security. Unfortunately, the international legal system lacks a procedure for determining when a violation of international law has occurred. In the absence of an evidentiary standard of proof, powerful states like the United States are able to "exercise broad defensive action based on thin evidence."[131]
Yet even if such a standard existed, it should be noted that the United States has been reluctant in the past to provide sufficient evidence to international tribunals on the basis that doing so could "undermine the operational effectiveness of defense action against an enemy as determined and efficient as a global terrorist network."[132] Instead, President Bush's administration prior to Operation Iraqi Freedom seemed to suggest to the international community that it should simply trust that the U.S. to act in good faith. Yet in order to maintain its reputation as a benign superpower, the United States must allow itself to be subject to international law so as to avoid the accusation that it is acting outside of the law.[133] Henry Kissinger wrote concerning the United States' unique position in the international community:
As the most powerful nation in the world, the United States has a special unilateral capacity to implement its convictions. But it also has a special obligation to justify its actions by principles that transcend the assertions of preponderant power. It cannot be in either the American national interest or the world's interest to develop principles that grant every nation an unfettered right of preemption against its own definition of threats to its security.[134]
Nevertheless, even if the United States were to disclose its foreign intelligence sources for the purposes of proving that another state is or could in the future pose a threat to its survival, "the status of [the latter state's] controverted behavior as legal or illegal is quite problematical, in the first instance, because no central institutions exists to make judgments that will be treated as authoritative by states."[135] With respect to North Korea, however, it has recently been confirmed that it (North Korea) has in fact developed nuclear weapons; but without a standard of evidence or a central authority the legal status of North Korea's behavior remains in question.[136]
The Bush Doctrine has been controversial in part because of its ambiguity, which is not surprising considering that the right of self defense has always been somewhat of an amorphous concept. One jurist notes in contrasting the near unanimous acceptance of the principles of necessity and proportionality with the total lack of agreement as to a proper standard of evidence that "[t]he dearth of discussion is striking on this matter, and State practice since 1945 does not furnish much guideline."[137]
Undoubtedly, the Bush Doctrine remains controversial as its most significant application in Iraq was based in part on remarkably incorrect intelligence.[138] Following the Senate Intelligence Committee's report in July of 2004 regarding the serious intelligence failures that powered President Bush's decision to preemptively attack Iraq, the Bush administration aides have noted that already "other countries are citing Iraq to make the argument that America can never again be sure it is getting it right and thus must back away from the pre-emption doctrine enshrined in Mr. Bush's 2002 ‘National Security Strategy of the United States.'"[139] Notably, "China has been the most outspoken proponent of this view, suggesting publicly that the [Bush] administration cannot be trusted when it asserts that North Korea has secretly started up a second nuclear weapons program--one based on enriching uranium."[140] China's viewpoint is perplexing and distressing given American intelligence to the contrary and, more importantly, given North Korea's recent confirmation that it has developed nuclear weapons.[141]
In fairness to President Bush, he is not the first to preemptively attack another state based on erroneous foreign intelligence. In August of 1998, the President Clinton authorized the bombing of what turned out to be a pharmaceutical plant in Khartoum, Sudan, which was mistakenly believed to be producing WMD.[142] In light of these arguably illegitimate preemptive strikes against Iraq and the Sudan, one critic of the United States' foreign policy notes that its (the United States') tendency "to exercise broad defensive action based on thin evidence" has led to a "policy of successive U.S. administrations gradually discarding the notion of the necessity of proof, [and thereby] reserving an ample scope of discretion to employ unilateral measures under the banner of self defense."[143] This recent criticism of the United States' foreign policy demonstrates the pronounced need for the development of legal standards with regards to the right of self defense.[144]
Presuming that the most recent war will not be sole application of the Bush Doctrine, one of the doctrine's proponents, Guy Roberts, in his "counterproliferation self-help paradigm" has suggested six criteria, which could bring more clarity and, if adopted, could increase international support for preemption.[145] The first criterion requires a regional security organization like NATO or an individual state to give notice to another state that its nuclear weapons program is in violation of international law and considered to be a threat to the "vital national security interests of the state, regional security, and international peace and security."[146] Secondly, "the threat must be a concrete, persuasive threat rather than a speculative or unsubstantiated one."[147] The second criterion does away with the imminence of attack requirement from Caroline and instead requires that there be evidence of an illicit development of nuclear weapons as well as an intent to use such weapons aggressively. Next, in order for a preemptive attack to be legitimate the third criterion requires a state to show that "further delay" would compromise its security and the safety of its civilians.[148] The fourth criterion adopts the proportionality requirement from customary international law, which forbids a state from using more force than is necessary to protect itself. In pursuing a preemptive strike on a nuclear weapons facility, the fifth criterion requires that there be a reasonable chance of a "positive outcome."[149] Lastly, the use of force should only be seen as a "last resort"[150] to removing the threat. In other words, preemption is not intended to replace diplomacy in most instances.
In determining whether North Korea poses a significant threat to the United States and whether a preemptive strike by the U.S. on North Korea is necessary and in accordance with international law, I have applied the six criteria from Roberts' "counterproliferation self-help paradigm."[151] "In 1994, President Clinton, by Executive Order, declared that the proliferation of weapons of mass destruction ‘constitutes an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States.'"[152] In 1965, at the behest of former President Eisenhower, the United States drafted an international treaty on the non-proliferation of nuclear weapons ("NPT"),[153] which in 1970 became "the most widely ratified arms limitation and disarmament agreement in history."[154] In 1985, North Korea signed the NPT-which required it, under Article III §1 of the treaty, to open its nuclear facilities to International Atomic Energy Agency ("IAEA") inspectors.[155] Article VI of the NPT requires each state to negotiate in good faith in order to achieve its objective of ending the "nuclear arms race."[156] In addition to the NPT, North and South Korea signed the Joint Declaration in 1992 with the intention of "denuclearizing the Korean Peninsula and thus removing the danger of nuclear war."[157] Under the Joint Declaration, both states agreed: 1) to use nuclear energy only for peaceful purposes; 2) to not possess nuclear reprocessing and uranium facilities; and 3) to allow inspection by the other state in order verify the "denuclearization."[158] By 1993, the U.S. grew concerned that North Korea was secretly reconstituting its nuclear weapons program as North Korea considered withdrawing from the NPT.[159] In 1994, with the intention of using diplomacy and economic incentives[160] the Clinton Administration agreed to give North Korea additional economic aid and the construction of two "light-water" nuclear reactors on the condition that North Korea would cease developing weapons-grade nuclear material.[161] Throughout the 1990s and 2000s, North Korea has repeatedly chosen to breach the NPT, which naturally raises suspicions about its nuclear weapons program.[162] Later in 2002, North Korea decided to withdraw altogether from the NPT and the Joint Declaration.[163] After withdrawing from the treaties,[164] the CIA estimated that North Korea using known facilities could develop five to six nuclear weapons within six months.[165] Reminiscent of 1993,[166] Kim Jung Il as dictator of North Korea in 2003 threatened to reconstitute North Korea's nuclear weapons program as a means of perhaps exacting more "multi-billion dollar"[167] concessions from the U.S. North Korea's repeated violations of the NPT and the Joint Declaration suggests quite conclusively that its leader, Kim Jung Il, is not his committed to the denuclearization of the Korean Peninsula.[168]
The Bush Administration argues that a nuclear-armed North Korea poses a significant threat to the vital national interests of the United States and to the international community at large.[169] Although North Korea is extremely poor and undeveloped, its withdrawal from the NPT combined with suspicions of WMD development[170] establishes its status as a rogue state in the eyes of the Bush Administration. President Bush has referred to North Korea, along with Iran and Iraq as forming an "Axis of Evil."[171] For the purposes of applying this counterproliferation paradigm, let us assume that North Korea's "Axis of Evil" status combined with credible CIA intelligence of a secret nuclear weapons program makes it an imminent threat to the U.S.
With regards to the second criterion, North Korea's nuclear weapons program has been substantiated by CIA intelligence.[172] In 2003, Kim Jung Il announced that North Korea was to be "totally free from the binding force of the safeguards agreement with the IAEA."[173] In 1997, North Korea purportedly sold ballistic missiles to Pakistan in exchange for its expertise in developing nuclear weapons.[174] One American intelligence official considers Pakistan's actions to be the "worst nightmare of the international arms control community" as a "third-world country has now become the instrument of proliferation."[175] In late 2002, following a surprise confrontation in Pyongyang by the United States Assistant Secretary of State for East Asian and Pacific Affairs, North Korea responded by expelling the IAEA inspectors, renouncing the Nonproliferation Treaty, and threatening to begin developing nuclear material.[176] In an unfortunate yet predictable outcome, the CIA believes that North Korea already possesses nuclear weapons.[177] In light of all of this, the threat posed by North Korea is unequivocally "concrete" and "persuasive."
With respect to the third factor, it was arguably in the U.S.'s best interest to have preemptively struck North Korea before it successfully developed nuclear weapons. Therefore as the threat posed by North Korea has come into fruition and in the event that the U.S. chooses to attack North Korea to remove this threat, it should base its actions on the doctrine of anticipatory self defense from The Caroline rather than the Bush Doctrine.
In February of 2003, North Korea warned that it was capable of striking "American targets anywhere in the world if provoked."[178] Former CIA Director, George Tenet, has also acknowledged North Korea's ability to hit the west coast of the United States.[179] Nevertheless, such a stance is not contrary to international law. The International Court of Justice has not prohibited the use of nuclear weapons in "extreme circumstances of self-defense,"[180] and the peaceful possession of nuclear weapons does not violate customary international law.[181] In fact, "the mere possession [of nuclear weapons] without even a threat of use does not amount to an unlawful armed attack."[182] With respect to proliferation, the U.S. and many other world powers continue to replenish their nuclear stockpiles and occasionally test nuclear weapons. In short, North Korea's production of at least one nuclear weapon is not enough to justify the use of military force. To do so would be to create an obvious "double standard"-one for the U.S., Great Britain, China, Russia, France and another for developing states like North Korea, Pakistan, and Iran, who seek nuclear weapons in part to have more influence in the international community.[183]
Nevertheless presuming that the Bush Doctrine is a relevant legal basis for using military force against North Korea, the fourth factor of the "counterproliferation self-help paradigm" prohibits the United States from using force disproportionate to the threat posed by North Korea. North Korea is an extremely poor, but well-armed state.[184] Seymour Hersh reported that "North Korea is one of the most militarized nations in the world, with more than forty per cent of its population under arms. Its artillery is especially fearsome: more than ten thousand guns, along with twenty-five hundred rocket launchers capable of launching five hundred thousand shells an hour, are positioned within range of Seoul."[185] Considering North Korea's military prowess and its proximity to South Korea, where U.S. troops have been stationed in concentration for over fifty years,[186] it is difficult to state precisely what degree of force would be proportionally remove the threat posed by North Korea while at the same time minimizing innocent casualties. Significant use of force by the U.S. and possibly the use of nuclear weapons is not out of the question.
As thousands, if not millions, of U.S. and Korean civilians might die in the event that the U.S. preemptively struck North Korea with military force, it is difficult to imagine how any application of the Bush Doctrine in North Korea could lead to a "positive outcome," the fifth factor. Considering that Kim Jung Il is willing to spend millions if not billions in order develop nuclear weapons in lieu of feeding his own starving people, it should be presumed that North Korea would use its nuclear weapons to defend itself against a anticipatory strike by the United States. Of course, this factor depends significantly on what one considers a "positive outcome." If human life is not a factor in the "positive outcome," there is no doubt that the United States has the military capability to eliminate the threat posed by Kim Jung Il and his Communist government. However, the General Assembly of the U.N. has on several occasions declared the use of nuclear weapons to be in violation of the U.N. Charter and a "crime against humanity,"[187] and, therefore, it is likely that the use of nuclear weapons and the corresponding loss of life would be inconsistent with Roberts's "positive outcome" criterion.
Finally, the sixth factor emphasizes that force is to be used only as a "last resort" when diplomacy is determined to be futile.[188] With respect to the NPT and negotiations between North Korea and the United States, diplomacy has failed to prevent North Korea from developing its own nuclear weapons.[189] But perhaps in light of recent developments, the United States and the rest of the world has simply waited too long to launch a preemptive strike against North Korea. As a result, there is no quick fix with respect to North Korea. Any use of force against this rogue state could lead to the deployment of nuclear weapons and United States should avoid a direct confrontation with North Korea. Rather than resort to military force, the international community and the United States should continue to pressure North Korea into giving up its nuclear weapons, and at the very least prevent it from spreading nuclear-weapons technology to other rogue regimes and terrorist groups.
The consequences and the cost of a preemptive use of force by the United States against North Korea must be carefully considered. Seymour Hersh reported that the Pentagon has estimated that "an all-out war [with North Korea] would result in more than a million military and civilian casualties, including as many as a hundred thousand Americans killed."[190] Therefore, any decision by the U.S. to use military force against North Korea should be used only as a last resort in order to save millions of American lives and/or the survival of the United States.
Conclusion
Customary international law based on Caroline establishes that the right of self defense is limited to instances in which the "necessity of self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation." Articles 2(4) and 51 of the UN Charter were intended to prohibit the use of military force except when necessary to prevent an "armed attack." Yet, due to the Security Council's lack of power or its inability to use its powers effectively to halt the proliferation of nuclear weapons, many jurists have begun to recognize that a strict interpretation of Article 2(4) and Article 51 would be suicidal and derogate the inherent right of states to protect themselves.
Following the attacks on the World Trade Center and the Pentagon, the Bush Doctrine has been viewed by some jurists as a badly needed, new approach, because in 21st Century even superpowers like the United States are vulnerable to terrorism and attacks by rogue states that support terrorist organizations. So-called "realists" in favor of the Bush Doctrine maintain that in the "real world" states will not simply wait to be attacked with nuclear weapons. The Bush Doctrine authorizes states to act first in order to preemptively destroy such threats.
With regards to North Korea, the decision to use force is exceedingly complicated irrespective of whether one construes the right of self defense narrowly or expansively. Nevertheless given that North Korea has been successful in producing nuclear weapons and has stated its willingness to use them if provoked, the Bush Doctrine is no longer appropriate. The threat has materialized, and therefore anticipatory self defense under the Caroline would be more appropriate. In rejecting the Bush Doctrine as it applies to North Korea, I do not challenge the authority of the United States or any other state to protect its nationals from the imminent threat of nuclear attack. Based on natural law, states have the right of self defense. Furthermore based on the John Locke's Social Contract theory, which was integrated into the U.S. Constitution, the U.S. government is obligated to protect its people from being deprived of its life, liberty, and property. I do not argue that the Bush Doctrine is inappropriate in all circumstances.
In conclusion, the Security Council of the United Nations has failed to protect states from new threats such as terrorists and rogue states and to prevent and mediate international conflicts. Still, many of the aspirations in the UN Charter are as relevant and as badly needed today as they were at the end of World War II. Given the relatively new threat posed by rogue states like North Korea and terrorist networks like Al-Qaida, both of which have sought or are currently seeking to obtain WMDs, there is need for a reevaluation of previous strategies and doctrines involving the right of self defense in order to ensure that the security needs of states are met. In its present form, however, the Bush Doctrine of preemptive self defense does not strike the proper balance between self defense and international cooperation. I do not reject preemptive self defense entirely, but I do urge proponents of the Bush Doctrine to work to clarify many of its ambiguities. While some new international legal paradigm may be needed to counteract these threats, the Bush Doctrine in its present form may not be the appropriate solution. Furthermore by inadvertently provoking resentment and distrust of the U.S. and its foreign policy, the Bush Doctrine may not make the United States and the international community any safer.
[1] JD/MBA, Indiana University School of Law/Kelley School of Business, Indianapolis, Indiana; B.A. in political science at the University of Michigan. I would like to thank Professor William Bradford for his help in developing this topic, for his encouragement throughout, and, lastly, for his help in getting this article published. This article is current as of October, 2004.
[2] See Guy B. Roberts, The Counterproliferation Self-Help Paradigm: A Legal Regime for Enforcing the Norm Prohibiting the Proliferation of Weapons of Mass Destruction, 27 Denv. J. Int'l L. & Pol'y 483, 489 (1999); see also, Office of Technology Assessment Report, Proliferation of Weapons of Mass Destruction: Assessing the Risk (1997), available at http://www.wws.princeton.edu/~ota/disk1/1993/9341_n.html.
[3] President George W. Bush, The National Security Strategy of the United States of America, 15-16, Sept. 17, 2002, available at http://www.whitehouse.gov/nsc/nss.pdf.
[4] See Richard M. Gardner, Neither Bush nor the Jurisprudes, 97 Am. J. Int'l L. 585, 586 (2003) (stating that "[i]n a subsequent background briefing on this document, [a Bush] administration spokesmen sought to represent the new doctrine as part of a longstanding American legal tradition. ‘Preemption is not a new concept,' a senior administration official declared"). Following a terrorist attack by Libyan nationals in 1986 on a Berlin nightclub that killed 2 U.S. nationals and 78 others, the U.S. military commenced air-strikes on various Libyan military targets. President Reagan stated that the U.S. had "clear evidence that Libya is planning future attacks" and that the "preemptive action" was intended to "preempt and discourage Libyan attacks on innocent civilians in the future." President Ronald W. Reagan, Address to the Nation (Apr. 14, 1986), in Reagan: We Have Done What We Had to Do, Wash. Post, Apr. 15, 1986, at A23. Then in 1998, President Clinton launched air-strikes on a pharmaceutical plant in the Sudan, erroneously believed to be producing WMDs. See William Bradford, The Duty to Defend Them: A Natural Legal Defense of the Bush Doctrine of Preventive War, 79 Notre Dame L. Rev. 1365, 1415-1417 (2004). See Jorge Alberto Ramirez, Iraq War: Anticipatory Self-Defense or Unlawful Unilateralism?, 34 Cal. W. Int'l L.J. 1,7 (2003) (stating that "[p]reemption is not a good idea. As an international law doctrine, it has been around at least since the mid-19th century, but its use against Iraq in particular emerged during the Reagan administration and had been floated for consideration in both the George H.W. Bush and the Clinton administrations").
[5] See generally Bradford, supra note 4.
[6] Id. at 1366; see Roberts, supra note 2, at 487-495 (stating that "[a]t least 25 countries already have or are in the process of developing nuclear, biological or chemical weapons and the means to deliver them"). Roberts also finds that of those states seeking to develop or acquire WMDs, "many have ties to terrorists, to religious zealots or organized crime groups who also seeking to use these weapons." See Kathleen C. Bailey, Doomsday Weapons in the Hands of Many (Univ. of Ill. Press, 1991).
[7] See National Security Strategy of the United States of America (Sept. 2002) ["NSSUSA"], available at http://whitehouse.gov/nsc.nss/pdf; Bradford, supra note 4, at 1366 (endorsing the Bush administration's abandonment of "deterrence in favor of a robust and proactive strategic doctrine that sanctions the use of military force to eliminate threats posed by the intersection of WMD and an emerging breed of undeterrable adversaries before they can materialize"); Roberts, supra note 2, at 502-504 (arguing the need for a U.S. "counterproliferation self-help paradigm" in order to remove the threat of rogue states and terrorist groups using WMDs).
[8] See Bradford, supra note 4, at 1422-1423 (stating that "[w]hereas the doctrine of ASD justifies the resort to force in anticipation of an imminent armed attack out of necessity, where the threat is so great that no moment for deliberation is possible, the use of force - in the absence of an imminent threat - that is intended to destroy the potential that an enemy may pose a future threat is termed ‘preventive war.' The Bush Doctrine, articulated in the NSS, prominent presidential addresses, and the statements of senior officials, is effectively a unilateral U.S. assertion of the right to engage in preventive war").
[9] Id. at 1423-1425.
[10] President George W. Bush, State of the Union Address, Jan. 28th, 2003, available at http://www.whitehouse.gov/news/releases/2003/01//20030128-19.html.
[11] Id.
[12] See David Remnick, Faith-Based Intelligence, New Yorker, July 28, 2003, at 27 (stating that "four months earlier, in October, 2002, the Director of Central Intelligence, George Tenet, had personally intervened to remove from a Presidential speech an assertion that Iraq had tried to buy five hundred tons of uranium oxide from the African country of Niger. That "information" was a fantasy backed by a set of forged documents").
[13] See Steven R. Weisman, U.S. Must Counteract Image n Muslim World, Panel Says, N.Y. Times, Oct. 1, 2003, at A1, Late Edition. (Note that these findings predate the public's awareness of prisoner abuse and torture at the infamous Iraqi Abu Ghraib prison.)
[14] Roberts, supra note 2, at 523; see also Natalie J. Goldring, Skittish on Counterproliferation, 50 Bulleting of Atomic Scientists 2, 12 (March/April 1994).
[15] Harold Hongju Koh, Jefferson Memorial Lecture Transnational Legal Process after September 11th, 22 Berkeley J. Int'l L. 337, 348-349 (2004).
[16] Juan Cole, Informed Comment (July 5, 2004), available at http://www.juancole.com/2004_07_01_juancole_archive.html
[17] Restatement (Third) of Foreign Relations Law of the United States § 206 (1987).
[18] See Christopher Greenwood, International Law and Pre-Emptive Use of Force: Afghanistan, Al-Qaida, and Iraq, 4 San Diego Int'l L. J. 7, 11 (2003) (stating "[t]he right of self-defense is not created by the Charter-it is a customary law right of some antiquity and is said to be inherent in the concept of Statehood...").
[19] See Bradford, supra note 4, at 1425.
[20] Id. at 1375; see also Byard Q. Clemmons & Gary D. Brown, Rethinking International Self-Defense: The United Nations' Emerging Role, Naval L. Rev. 217, 218 (1998).
[21] Roberts, supra note 2, at 515 (quoting The Writings of Thomas Jefferson 279 (1898).
[22] "We the People...in Order to form a more perfect Union. . . ." U.S. Const. pmbl.
[23] Dean Acheson, Remarks, 57 Am. Soc. Int'l L Proc. 13, 14 (1963).
[24] Bradford, supra note 4, at 1469-1470 (citing "the famous aphorism penned by Louis Henkin [that] reminds us that ‘most states observe international law most of the time'").
[25] Roberts, supra note 2, at 483 (declaring "the proliferation of WMD, as well as missile delivery systems, is one of the most significant and protracted threats to international security and global stability ever faced by mankind."); Bradford, supra note 4, at 1366 (echoing Roberts' characterization of the magnitude of destruction caused by a WMD on an American city).
[26] See Bradford, supra at note 4, at 1366-67.
[27] Roberts, supra note 2, at 483 (quoting President John F. Kennedy, The Soviet Threat to the Americans, in Dep't St. Bull., 1962, at 716.
[28] See Bradford, supra at note 4, at 1391.
[29] See Greece v. Great Britain, 1924 P.C.I.J., (ser. A) No. 2
[30] See Bradford, supra note 4, at 1451.
[31] President Bush, supra note 10.
[32] Ian Brownlie, International Law and the Use of Force by States, v (Oxford Univ. Press, 1963).
[33] See generally id.
[34] Anticipatory Self Defense (ASD) based on The Caroline Doctrine expanded the right of self defense. Opponents of ASD and, presumably, preemptive self defense argue that such expansions of the right of self defense provide "'Fertile ground for torturing the self-defense concept'" and a dangerous warrant for manipulative, self-serving states to engage in prima facie illegal aggression while cloaking their actions under the guise of ASD and claiming legal legitimacy." Bradford, supra note 4, at 1384; see also Derek Bowett, Reprisals Involving Recourse to Armed Force, in International Law: A Contemporary Perspective 394-410 (Richard A. Falk ed., 1985).
[35] Brownlie, supra note 32, at 373-374.
[36] 2 James B. Moore, A Digest of International Law § 217, at 412 (1906) (discussing the British's sinking of the U.S. steamship Caroline and the doctrine developed as a result).
[37] See W. Michael Reisman, Assessing Claims to Revise the Laws of War, 97 Am. J. Int'l L. 82, 83 (2003).
[38] See Military and Paramilitary Activities (Nicaragua v. U.S.), 1986 I.C.J. 14 (June 27, 1986).
[39] Moore, supra note 36.
[40] Id.
[41] Id.
[42] Brownlie, supra note 32.
[43] Lori F. Damrosch et al,, International Law 971 (4th ed. 2001) (citing Yoram Dinstein, War, Aggression, and Self-Defense 190 (2d ed. 1994)).
[44] Bradford, supra note 4, at 1403-1404 (contrasting the hawkish views during the Cuban Missile Crisis of senior Department of Justice and State Department officials with that of Abram Chayes, a State Department legal advisor, who argued against a naval blockade and airstrikes, predicated on anticipatory self defense, on the basis that circumstances "could not support a claim that an ‘armed attack' had occurred or that a threat to the United States was imminent [and] would....stretch the definition of anticipatory self-defense beyond reasonable bounds and ‘trivialize the whole effort at legal justification.'"); see also Abram Chayes, The Cuban Missile Crisis, 65-66 (Oxford Univ. Press, 1974).
[45] Damrosch, supra note 43, at 523-524.
[46] Amy E. Eckert and Manooher Mofidi, Doctrine or Doctrinaire-The First Strike Doctrine and Preemptive Self-Defense under International Law, 12 Tul. J. Int'l & Comp. L. 117, 118 (2004); see also Pres. George Bush, supra note 3.
[47] Bradford, supra note 4, at 1367.
[48] See Pres. Bush, supra note 3.
[49] Bradford, supra note 4, at 1486-1488.
[50] See Jane E. Stromseth, Future Implication of the Iraq Conflict: Law and Force after Iraq: A Transitional Moment, 97 Am. J. Int'l L. 628 (2003); see also Michael J. Glennon, Why the Security Council Failed, Foreign Aff., May/June 2003, at 16-18, 24 (stating that "the Iraq war in the face of a deeply divided Security Council was the culmination of earlier trends that eroded the UN Charter"). Anthony Arend contends that "for all practical purposes, the UN Charter framework is dead." Anthony Clark Arend, International Law and the Preemptive Use of Military Force, Wash. Q., Spring 2003, at 89, 101.
[51] Gardner, supra note 4, at 588.
[52] Id. at 589.
[53] Id. at 588; see also Korematsu v. U.S., 323 U.S. 214, 246, 65 S. Ct. 193, 89 L. Ed. 194 (1944).
[54] S.C. Res. 687, U.N. SCOR, 2981st mtg. (1991), 30 ILM 846 (1991).
[55] Gardner, supra note 4, at 588.
[56] Id.; see also S.C. Res. 678, U.N. SCOR, 2963rd mtg. (1990), 29 ILM 1565 (1990).
[57] Henry A. Kissinger, Consult and Control: Bywords for Battling the New Enemy, Wash. Post, Sept. 16, 2002, at A19.
[58] Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Aug. 8, 1945, art. 6(c), 59 Stat. 1544, 1547, 82 U.N.T.S. 279, 288 ("Nuremberg Charter").
[59] Geoffrey R. Watson, The ICJ and the Lawfulness of the Use of Nuclear Weapons, ASIL Insight (Amer. Soc. Int'l L., Washington, D.C.), June 1995.
[60] The Kellogg-Briand Pact, Aug. 27, 1928, 46 Stat. 2343, 94 L.N.T.S. 57 (1928)
[61] 6 Green Hayward Hackworth, Modes of Redress: Amicable Modes of Redress 9 (1933).
[62] U.N. Charter pmbl.
[63] Damrosch, supra note 43, at 934.
[64] U.N. Charter art. 1, ¶ 1.
[65] Military and Paramilitary Activities, supra note 38.
[66] The Security Council made up of UN member states has primary responsibility for maintaining international peace and security. The concept of collective force distinguishes it from previous "renunciation of war" treaties like the Kellogg-Briand Pact and the Saavedra Lamas Treaty and from previous international institutions like the League of Nations. See Damrosch, supra note 43, at 934.
[67] U.N. Charter pmbl.
[68] Brownlie, supra note 32, at 273.
[69] Id.
[70] Mary Ellen O'Connell, The Myth of Preemptive Self Defense (Amer. Soc. Int'l L. Taskforce on Terrorism, Washington, D.C.), 2002, at 15, available at http://www.asil.org/taskforce/oconnell.pdf.
[71] U.N. Charter art 2, ¶ 4.
[72] See generally O'Connell, supra note 70.
[73] Bert V.A. Röling, The Ban on the Use of Force, in The Current Legal Regulation on the Use of Force 3 (A. Cassesse ed., 1986).
[74] Id.
[75] U.N. Charter art 2, ¶ 4.
[76] Röling, supra note 73, at 3.
[77] Greenwood, supra note 18, at 10.
[78] U.N. Charter art 1, ¶ 1.
[79] U.N. Charter art 1, ¶ 2-4.
[80] U.N. Charter art 24, ¶ 1.
[81] U.N. Charter art 33, ¶ 1.
[82] U.N. Charter art 39.
[83] U.N. Charter art 42.
[84] U.N. Charter art 2, ¶ 4.
[85] Roberts, supra note 2, at 511.
[86] Bradford, supra note 4, at 1449-1451.
[87] U.N. Charter art 51.
[88] See Brownlie, supra note 32, at 275.
[89] U.N. Charter art 51.
[90] See Greenwood, supra note 18, at 36-37.
[91] Bradford, supra note 4, at 1370 (commenting on the U.N.'s failure over the past decade to "prevent famine, end genocide, and enforce the disarmament of rogue states").
[92] Id. at 1379 (noting that the Security Council's record in maintaining international peace and security is "abominable."); see also Michael J. Glennon, The Fog of War: Self Defense, Inherence and Incoherence in Article 51 of United Nations Charter, 25 Harv. J. L. & Pub. Pol'y 539, 540 (2002); Mary Ellen O'Connor, Review Essay: Re-Leashing the Dogs of War, 97 Am J. Int'l L. 446, 449 (2003) (questioning the legitimacy of the Security Council after being excluded in favor of NATO during Kosovo Crisis of 1998-1999); Ruth Wedgewood, The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-Defense, 97 Am J. Int'l L. 576, 581(2003) (arguing that the Security Council "enormously weakened its own prestige by ineffectual responses to the disastrous conflicts in the former Yugoslavia and Rwanda in the 1990s"); Anthony Clark Arend & Robert Beck, International Law and the Use of Force: Beyond the U.N. Charter Paradigm 56-58 (1993) (arguing that states have failed to contribute to collective security especially when circumstances "have little direct relevance to their own national security goals"); Kofi Annan, In Annan and Chirac's Words: ‘Fork in the Road' and ‘Call a Summit,' N.Y. Times, Sept. 24, 2003, at A13 (noting that the U.N. has not effectively established that the "concerns of [uniquely vulnerable' states] can, and will, be addressed effectively through collective action").
[93] Bradford, supra note 4, at 1475.
[94] Id. at 1425 (arguing that the Bush Doctrine is in accordance with natural law irrespective of its compatibility with Articles 2(4) and 51).
[95] Damrosch, supra note 43, at 990 (stating that "humanitarian intervention refers to uses of force by one state to protect persons within another state from massive atrocities such as genocide"). Such an intervention did occur in Kosovo in 1999 with the support of many leaders in the international community.
[96] Roberts, supra note 2, at 485.
[97]Id. at 490 (quoting a Pakistani leader who declared: "We are going to sell our nuclear technology...It will be up for grabs to the highest bidder").
[98] See Bradford, supra note 4, at 1426-1427 (providing a concise explanation of natural law).
[99] Id. at 1440.
[100] Id. at 1409-1410 (noting that there is consensus amongst jurists that "the threat justified the [Israeli] response to be reasonable"); see also Beth M. Polebaum, Note, National Self-Defense in International Law: An Emerging Standard for a Nuclear Age, 59 N.Y.U. L. Rev. 187, 192 (1984) (stating that "most commentators concluded that Israel's belief that it was about to be attacked on all its borders was reasonable").
[101] See Arend & Beck, supra note 92, at 77 (noting that the Soviet-Arabic position narrowly defined an act of aggression as the first use of force irrespective of the circumstances).
[102] Bradford, supra note 4, at 1408 (noting the brief unification of Egyptian, Syrian, and Jordanian military forces known as the United Arab Republic (U.A.R.) Unified Command just prior to the commencement by Israel of the Six-Day War in 1967); see also Nadav Safran, From War to War: The Arab-Israeli Confrontation, 1948-1967 269 (1969).
[103] Id.
[104] Egypt, Syria, Jordan (and tiny Lebanon) sit on the western, northern, and eastern borders of Israel, respectively, and thus, virtually surround the small, Jewish state. A successful, simultaneous attack by U.A.R. forces could have devastated Israel. For more information on the 1967 War or Six-Day War, see Safran, supra note 102.
[105] Roberts, supra note 2, at 530 (noting that "the international community roundly condemned Israel, and |
Volumes 
