By David Ruppe
Global Security Newswire

WASHINGTON — In a new national security strategy document released today, the Bush administration has called for a reinterpretation of international law to allow for preemptive attacks against countries that do not appear to pose an imminent threat in the traditional sense.

According to the document, customary international law allows one country to justifiably attack another if the other is showing signs of an imminent threat.  Traditionally, such a threat has been understood as evidence that an enemy was preparing to attack, such as by massing armies and other forces.

According to the Bush administration document, a country could also pre-emptively attack if the other country is developing weapons of mass destruction and is believed to be intent upon using them.

“We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries,” said The National Security Strategy of the United States, which the White House sent to Congress today.

The Bush document addresses what has become a potential international legal challenge to the Bush administration’s new doctrine of pre-emption and its plans for war on Iraq.

The White House also sent to Congress today a proposed resolution that would authorize the executive branch to use “all means” to remove the regime of Iraqi President Saddam Hussein from power (see related GSN story, today).

U.S. officials this week also have been urging U.N. Security Council members to construct an ultimatum for Hussein:  comply with all U.N. resolutions or be subject to an attack (see related GSN story, today).

Administration officials have said pre-emption has always been a component of U.S. national security policy.  While international law permits pre-emption, it allows that only when there is hard evidence, and not based upon the supposed intentions of other powers, international law experts said.

Now the administration is arguing an attack can be justified based on the suspected intentions of another power and it asserts an emerging understanding of some state’s behavior.  The document says certain “rogue” states today are willing to take greater risks in attacking the United States than did the Soviet Union during the Cold War.  They might consider conducting such an attack themselves or by supplying weapons to terrorists.

“In the Cold War, especially following the Cuban missile crisis, we faced a generally status quo, risk-adverse adversary.  Deterrence was an effective defense,” said the strategy document. 

“But deterrence based only upon the threat of retaliation is far less likely to work against leaders of rogue states more willing to take risks, gambling with the lives of their people, and the wealth of their nations.”

That has not always been a U.S. view.  During the Johnson administration, the U.S. intelligence community drew up assessments on the likelihood another country, major or minor, might try to smuggle a weapon of mass destruction into the United States for a sneak attack.  Those assessments concluded it would be unlikely because such an attack would not defeat the U.S. military and the chance of getting caught and facing massive retaliation would be prohibitive (see GSN, Aug. 19).

The Bush administration view emerged after the Sept. 11 terrorist attacks on the United States that killed more than 3,000 people, which illustrated U.S. vulnerability to a sneak attack.

“It has taken almost a decade for us to comprehend the true new nature of this threat,” said the report.

Changing the Law Requires Persuasion

Purdue University international law professor Louis Beres said the Bush administration is attempting to adapt the concept of anticipatory self-defense to suit new circumstances, and he believes the Bush administration is not on shaky legal grounds in trying to do so.

The concept of anticipatory self-defense that is the basis for pre-emption, he said, “is a 19^th Century notion based on a test called the Caroline, which deals with 19^th century naval vessels.”

“In that respect, I think Bush is correct, we don’t have the leisure we had during the 19^th century to determine the imminence of the threat.  The threat could be imminent and overwhelming and beyond our immediate knowledge.”

“The notion that it needs to be reconceptualized or adapted seems eminently reasonable.”

There is no treaty that codifies anticipatory self-defense.  It is a matter of customary international law, which does not make it any less lawful, Beres said.

“I think he’s adapting it to circumstances.  Changing customary international law is not something that can be done as explicitly as changing treaty law.  It’s really simply a matter of convincing people that the circumstances warrant the new adaptation.”

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