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Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Tuesday, October 05, 2004

Kerry and pre-emption: not just the global test is puzzling

I noted with some alarm last Friday in my first cut at the Florida debate a number of foreign policy-related comments Kerry made during the debate, including the warmth he showed to the doctrine (undefined, except by tacit reference to Bush's illegal Iraq invasion) of preemptive war:
The president always has the right, and always has had the right, for preemptive strike. That was a great doctrine throughout the Cold War. And it was always one of the things we argued about with respect to arms control.

No president, through all of American history, has ever ceded, and nor would I, the right to preempt in any way necessary to protect the United States of America.

But if and when you do it, Jim, you have to do it in a way that passes the test, that passes the global test where your countrymen, your people understand fully why you're doing what you're doing and you can prove to the world that you did it for legitimate reasons.

Subsequently, the Bush campaign have focussed on the words passes the global test in an effort to suggest that Kerry was proposing to subject US foreign policy to the approval of other powers - which interpretation Kerry indignantly rejects, pointing to his previous paragraph, which does not exactly limit his room for manoeuvre!

Except that - as I raised last week [1] - pre-emptive war is an expression of elastic meaning. Traditionally, it denoted the circumstances raised in the case of the Caroline, and the formulation of Daniel Webster, in which imminence is a crucial component. As exemplified in the Iraq invasion, the Bush version of pre-emption [2] has no such limitation (one is not clear whether it carries any limitation).

One notorious practical example was the Israeli raid on the Iraqi nuclear facility as Osiraq (Osirak) in 1981: unlike, say, the Six Day War, here there was no imminence to the threat against the Israeli state; the UN Security Council formally disapproved, but there was - from memory - no significant punishment of Israel for the action.

Does Kerry approve of Osiraq? Would he approve of a similar strike against Iranian nuclear installations? If not, what distinctions (of principle, rather than expediency) does he make between the cases?

And what of his global test? In international law - lacking, as it does, any means of enforcement comparable to the domestic law injunction or astreinte - there is no such thing as prior restraint. Kerry is surely not repudiating the UN Charter, and therefore continues to accept the jurisdiction of the Security Council, and the limitations in the use of force under the terms of the Charter.

Kerry uses the word legitimate - which is rather less exact than legal, even in the context of international law. Is he claiming a right to preemptive action which goes beyond that permitted by international law as now understood [3] where political and moral considerations excuse its use?

And who shall judge whether the US has satisfied this burden of demonstrating legitimacy to the international community? The UN Security Council? It would be expected to consider any pre-emptive attack - but, of course, the US veto would condition the nature and, largely, the outcome of its discussions. And, besides, it's not the Security Council's role to judge questions of legitimacy.

Kerry must be saying that the US is judge in its own cause - a fine claim for an officer of the court to make!

His later remarks supply a context:
...what is at test here is the credibility of the United States of America and how we lead the world. And Iran and Iraq are now more dangerous ...

Now, whether preemption is ultimately what has to happen, I don't know yet. But I'll tell you this: As president, I'll never take my eye off that ball...

No one would expect Kerry to rule out a pre-emptive attack on either Iran or North Korea: but Kerry's formulation seems to go beyond mere refusing to rule out.

At the very least, he cannot refuse to clarify his position on pre-emptive attacks by alleging that the question is merely hypothetical.

The grave cause for concern is copper-fastened by the presence at the heart of Kerry's foreign policy team of hawks - neo-Scoop Jacksons - like Rand Beers and Richard Holbrooke - as previously discussed here at some length.

  1. Together with a note of amazement at his reference to the Cold War - one which, I find, is taking up by no less a light than William Safire yesterday.

  2. The National Security Strategy (oft discussed here) says, in effect, imminence is outdated (p19):
    We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries.
  3. How does international law treat the Iraq invasion? Is the acquiescence of the international community to be taken as approval? From earlier research on the subject, it's a well-traversed and complex area of the law.

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