- The Washington Times - Wednesday, November 26, 2003

Recently I addressed large groups of foreign international lawyers in Honolulu and Munich about Operation Iraqi Freedom, and from questions and private conversations following my remarks it was clear many view “pre-emption” as a four-letter word.

I’m not sure it is the word I would have chosen — in part because it is easily misunderstood as representing a far broader doctrine that was actually enunciated in the National Security Strategy report issued by the White House in September 2002, which reserved the possibility of unilateral U.S. military action “to exercise our right of self-defense by acting pre-emptively” against terrorists and a small number of radical states supporting terrorism or seeking to acquire illegal Weapons of Mass Destruction for use against the United States or its allies.

The basic premise was that the proliferation of Weapons of Mass Destruction has fundamentally changed the nature of the threat, and we must no longer simply sit patiently and allow radical regimes like Saddam Hussein’s Iraq to acquire illegal WMDs and then give them a “free kick” — which might take the form of coordinated chemical, biological or nuclear attacks against multiple targets and endangering the lives of millions of Americans — before we can defend ourselves or our allies.

The fundamental premise of “pre-emption” is hardly new. The public announcement put a small number of tyrants and terrorist groups around the world on notice that there might be serious costs associated with their wrongful behavior even before they elected to start slaughtering large numbers of Americans, and was clearly designed to provide incentives to them to change their ways and thus, hopefully, to deter the need for resort to military force.

The great Chinese military strategist Sun Tzu wrote 2,500 years ago that the “acme of skill” was not to win 100 victories in 100 battles, but “to subdue the enemy without fighting.” That was the goal of this announcement.

For the record, the United Nations was premised upon a similar theory of pre-emption. The very first “purpose” set forth in Article 1 of the Charter is not to respond collectively with military force to acts of international aggression, but to remove “threats to the peace” before major war can break out. I would add that in more than a dozen resolutions over as many years, the U.N. Security Council made the factual determination that Saddam’s Iraq was indeed a “threat to the peace.” But it lacked the will to enforce the law.

On Oct. 22, 1962, President John F. Kennedy noted in an historic address to the American people that the advent of Weapons of Mass Destruction — at the time represented by deployment of Soviet nuclear-armed ballistic missiles to Cuba — required some changes in traditional rules. “We no longer live in a world where only the actual firing of weapons represents a sufficient challenge to a nation’s security to constitute maximum peril,” he announced, noting nuclear weapons were so destructive that “any substantial increased possibility of their use” constituted a “threat to the peace.”

The resulting threat to use force to prevent the delivery of further shipments of Soviet missiles to Cuba was viewed by many as contrary to international law, but it reflected the same “pre-emptive” thinking behind the Bush doctrine and clearly promoted world peace and U.S. security.

I feel a great sadness for several reasons about the liberation of Iraq. But none of it owes to the ejection from power by the United States, Great Britain, Australia and other allies of a truly world-class tyrant and the resultant chance for the Iraqi people to build a free and democratic society.

I’m saddened because when armed force must be used, despite our best efforts, innocent people almost always suffer. I’m saddened that after a decade of threats and demands designed to compel Saddam to obey the law, the U.N. Security Council elected to emulate the League of Nations and abandoned the vision of San Francisco.

For if the world community lacks the will to enforce the rule of law in such an egregious case, law will become irrelevant as a tool for the preservation of peace. Kim Jong-il in Pyongyang was not oblivious to the Security Council’s ineffective efforts to enforce the law against Saddam.

Like the narrow “pre-emption” doctrine enunciated last year, Operation Iraqi Freedom may send a useful signal to terrorists and tyrants who seek Weapons of Mass Destruction for aggressive purposes that the law will be enforced. We can only hope that the recent unanimous Security Council vote on Iraq is a sign the council now is prepared to do its job in identifying and either deterring or removing future threats to the peace. American “pre-emption” will be unnecessary if the Security Council does its job. In that event, peace may prevail and President Bush’s threats of pre-emptive action to remove threats to the peace involving Weapons of Mass Destruction may prove as successful a deterrent as was President Kennedy’s courageous stand four decades earlier.

Robert F. Turner co-founded the Center for National Security Law at the University of Virginia in 1981 and is a former three-term chairman of the American Bar Association Standing Committee on Law and National Security. The views expressed are his own.


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