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The last time a country tried to justify its use of force as pre-empting a greater danger, the move was unanimously condemned by the United Nations Security Council and sharply criticized by the Reagan administration. In 1981, Israel defended its raid on Iraq’s nuclear facility at Osirak as vital to its national security. The United States disagreed and voted for censure, arguing that the bombing had unnecessarily jeopardized regional security and that Israel had failed to exhaust diplomatic measures. Still, the United States never explicitly rejected the doctrine of pre-emption, and now the Bush administration has used it to justify the invasion of Iraq. According to the administration, nothing is wrong with waging a pre-emptive war. And they may be right. But launching a preventive war — which is actually what Washington has done — is an entirely different matter. A pre-emptive military strike can be justified in responding to a specific and immediate threat of force. The logic of attacking a foe before it attacks you — known as “anticipatory self-defense” — is inescapable. It has its origins in the famous Caroline dispute that arose between the United States and Great Britain in 1837. The Caroline was a steamboat used by American sympathizers of a Canadian insurrection against British rule. The vessel was moored to the U.S. side of the border when British forces attacked and destroyed it, with loss of life. In a letter to Lord Ashburton, Daniel Webster challenged him to show “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation” and, further, that such action was “limited by that necessity.” But despite its pedigree, there is debate whether even this doctrine of pre-emptive self-defense has survived establishment of the United Nations in 1945. Generally, weaker states are fearful that more powerful ones will abuse any exception to the prohibition on using force contained in the U.N. Charter. Although governments have tested the limits of the U.N. Charter over the years, its rules remain the only international consensus on when force may be used. In an effort to remake force into a tool of absolutely last resort, Article 2(4) of the charter requires countries to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” Article 51 explicitly allows a country to act in self-defense only after it has been the victim of an “armed attack.” These provisions were intended to draw a strict line against aggression, in the aftermath of two catastrophic world wars and an ineffectual League of Nations. At the same time, many recognize that the charter’s words should not be frozen in the post-World War II era in which they were framed, because the nature of security threats has changed so dramatically. The more reasoned view is that pre-emptive military action is justified when a threat is credible and cannot otherwise be avoided. The leading example of military force that has been viewed as constituting legitimate pre-emptive self-defense was Israel’s 1967 strike against the Egyptian military amassing on its borders. A BROADER CONCEPT But with launch of the war against Iraq, the Bush administration has breathed life into a concept much broader than anticipatory self-defense. The battle for Baghdad is not designed to pre-empt a specific, imminent threat, but to prevent Saddam Hussein from threatening the United States in the future. While the notion of waging war to prevent the possibility of greater evil down the road was articulated in the president’s national security strategy last year, it was put into operation for the first time last month. The rest of the world now has no doubt that the United States will use force to address future threats, even if their precise nature is uncertain. The administration has stuck with the “pre-emptive” label to describe its actions in Iraq. But the label is a misnomer that masks the doctrine’s revolutionary character. With a policy of pre-emption, the test is relatively clear. But with a policy of prevention, the limits are disturbingly unclear. Imagine for a moment that India or Pakistan had adopted a similar security strategy at any time during the past few years. A preventive strike by either country would have brought the world to (or past) the brink of a nuclear disaster. From Pyongyang to Paris, people are nervous. Is the threshold crossed when the United States views a state possessing significant military power as a possible adversary down the road? What happens when an adversary of America tries to enhance its military strength? What will happen to North Korea if the multilateral diplomatic process the administration seeks does not materialize? What is in store for Iran, particularly if its efforts to enrich uranium prove to be farther along than initially thought? More important, what do these countries, and other candidates for inclusion in the “axis of evil,” think the United States will do once the situation in Iraq stabilizes? And will China, Russia, Turkey, and others now consider themselves free to use force to resolve situations they find threatening? JEOPARDIZING STABILITY Then-U.N. Ambassador Jeane Kirkpatrick characterized Israel’s destruction of the Iraqi reactor in 1981 as threatening “the peace and security of the entire area” and risking the “danger of war and anarchy.” The decision of the Bush administration to launch a preventive war has similarly made the global arena seem less stable and Americans feel less secure. The president’s motive — to protect the country from a repeat of the horror of Sept. 11 — is admirable, but not necessarily advanced by this strategy. Americans rightly fear that the war has emboldened those already filled with hatred toward the United States. Terrorist activity — both organized actions by al Qaeda and uncoordinated acts by its sympathizers — is expected to rise for the first time in 18 months. If, as everyone hopes, the war ends with minimal casualties, the administration may be even more firmly convinced that a preventive policy is the right one, particularly if large quantities of weapons of mass destruction are found. But moving from an international doctrine of military pre-emption to a more radical, unilateral concept of prevention should require far more debate than we have seen. The administration presented its national security strategy as a fait accompli. Congress greeted it largely with silence. There has been little discernable discussion at NATO. The Security Council debate focused on the efficacy of inspections, although it can be inferred that a majority rejected the concept of preventive war. At a minimum, we owe it to the brave soldiers who fight on the front lines to demonstrate that we have fully examined the risks of such a fundamental change. RATIONALE FOR RESTRAINTS It is tempting to pick and choose which international rules the United States wants to uphold. But forsaking the rules of the road can backfire by making it harder for us to invoke them against others. Constraints on our behavior may seem undesirable at times, but they simultaneously serve as welcome restraints on the actions of others. As shown by the administration’s demand that captured U.S. soldiers be treated in accordance with the Geneva Conventions, there are good reasons why these rules were developed and have stood the test of time. It would make more sense to seek consensus on the parameters of pre-emptive self-defense in an era of new threats than to try to fashion an even more controversial doctrine. It is also tempting to argue that other administrations have used force whenever they deemed it necessary. Kosovo is often cited as a case where the United States and its NATO allies proceeded, notwithstanding questions about the operation’s consistency with international norms. But Kosovo is not a good parallel. There, last-ditch negotiations with Belgrade had failed, whereas with Iraq many members of the Security Council believed measures short of military force had not yet been fully exhausted. Furthermore, in Kosovo the consequences of inaction were indeed imminent, and there was broad and deep international support. Although Russia would have found it difficult to avoid a veto if a resolution of support had been presented to the Security Council, it had little problem joining the international coalition implementing the peace. In other situations where countries have used military force, the international debate has tended to focus less on whether the offered justification — such as defense of citizens or self-defense against an actual armed attack — itself was legitimate, and more on whether the claim was supported by sufficient facts. NOW WHAT? The toughest issue we are now facing is not concluding hostilities, or even running the country until the Iraqis are able to do so. The biggest challenge is avoiding a situation in which another preventive war becomes inevitable. The Senate and the House should hold hearings as soon as the active phase of the war ends. Americans need to understand better the costs of shifting from pre-emptive to preventive war as our national security strategy. It is not too late for a serious discussion about which path the United States should take after Iraq. And it should include our allies in an effort to regain an international consensus. After all, if a doctrine of preventive war isn’t going to make the world a less dangerous place, is it worth it? Miriam Sapiro teaches a course on international law at New York University School of Law. She was a member of the National Security Council during the Clinton administration and served as special assistant to the president for Balkan stabilization.

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