Contrary to popular opinion, the war on Iraq is hardly the first act of preemption in history, or even recent history. At a tactical level, preemptive operations have been used by armed forces in every major war. Ruses, surprise attacks, covert missions - all of these are commonplace. What makes Iraq qualitatively different is that it is the first major war, at least in the post-Soviet era, conceived purely as a preemptive campaign, or what early 20th century Europeans used to call "preventive war."
The key question that should arise as a consequence of this war is simple. When is preemption a justifiable strategy? An appropriate answer involves neither legalistic hair-splitting nor an appeal to some esoteric theory or moral code. You average nation-state isn't too moral a creature. Power, wealth and ambition still drive governments, so any enforceable system of laws can't be predicated on legal technicalities or feathery ethics.
What makes this issue even more difficult is the proliferation of terrorist groups that are even less ethically minded than the rogue states of today. And unlike a typical despot, they cannot be deterred by threats. Against groups like al Qaeda - and there are many others - preemption is not just the option of choice. It is the only viable option.
There is no doubt that preemption is the twilight zone of the international legal order - the United Nations Charter, for instance, contains nothing about the subject. In some cases - such as an enemy army massing on a country's border - it is arguably legal. A strike against an adversary's missiles being fueled on the launching pad might be even easier to interpret as traditional self-defense. Israel's raid against the Iraqi nuclear reactor in 1981 was almost universally condemned - even by the United States - but in retrospect, would Kuwait be liberated if Saddam had nukes? In general, though, precedents are notably lacking in this area, so for this simple reason there is no definitive answer to the question I posed.
But there should be. Indeed, there must be, or else chaos will reign. And that's just not acceptable anymore.
Realists like me acknowledge that there is no country in the world that would let international law get in the way of defending itself against a perceived threat. Right or wrong, what the Security Council thinks is somewhat beside the point when a population is in grave danger, even if the rest of the world happens to disagree. The use of force in self-defense is the closest that international law gets to recognizing an absolute right. It is not quite absolute, because even in a defensive war not everything is permissible. Both precedents and formal treaties ban, for example, intentional targeting of civilians and the indiscriminate use of force. But such limits are few and full of loopholes.
When considering the role of limits, it is always useful to imagine extreme scenarios. In 1996, the International Court of Justice was asked to opine on the legality of actual use of nuclear weapons in combat. It suggested that maybe, just maybe, a threat to the existence of a state might justify nuclear war, which would certainly contravene international law under normal conditions. Similarly, a number of treaties governing civil liberties and criminal justice worldwide allow derogation in an acute crisis - in other words, armed conflict may be sufficient reason for temporarily suspending certain legal protections, such as trial by jury.
So it appears that the most basic precepts of international law are not without an escape clause. It doesn't matter all that much how narrow it is; the principle of its existence is what's important, and the principle is firmly established. Normally, policymakers are faced with decisions far less momentous than pressing the nuclear button, but the basic premise that "the safety of the people is the highest law" remains as valid today as it was in Cicero's time. It is sheer nonsense to speak of an ethical foreign policy that leaves our citizens and those of our allies vulnerable to violence and terror. Inaction can be lethal under the strategic realities present in the world today.
A number of powerful states have come to the conclusion that deterrence, whether for conventional or asymmetric warfare, should be backed by the threat of preemption. Australia suggested in late 2002 that it might strike preemptively to prevent atrocities like the Bali bombings. Japan followed earlier this year in vowing to destroy North Korean missile sites if Pyongyang gets ready to attack. Despite its peace constitution, it has recognized the folly of waiting passively for a mushroom cloud over Tokyo. Finally, it is now U.S. policy to consider "all of our options" to prevent or retaliate against the use of ultra-lethal weapons against American interests. And when Washington uses that euphemistic phrase, all of us are smart enough to know precisely what it means.
Ideally, and as soon as possible, pertinent treaties (primarily the UN Charter) would be amended to reflect the possibility of justified preemption under certain circumstances, since rules that do not adapt to meet the exigencies of our time will simply be ignored. This is preferable to escalating the level of anarchy in international relations and making the Security Council even more irrelevant than it proved in early March of this year. I don't pretend to know what the specific policies should be or will be. But I do know that in a world with weapons that can kill millions without so much as a warning, any law is better than the law of the jungle.
Pavel Molchanov is a Trinity senior. His column appears every other Monday.
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