Having recently revisited the international law governing the use of military force by reading Christine Gray's book, International Law and the Use of Force, I approached Henry Kissinger's April 9, 2006 op-ed in the Washington Post with eager interest. Unfortunately, as I waded through his Rules On Preventive Force, I found myself in the midst of a smoke and mirrors justification for "extending" international law to permit the type of illegal preventive war that should earn President George W. Bush impeachment and a subsequent trial by a War Crimes Tribunal.
Like Mr. Bush in both editions of his National Security Strategy, Mr. Kissinger appears to intentionally confuse "preemption" with the actual type of illegal war that the Bush administration waged in Iraq and is contemplating against Iran. In fact, Mr. Kissinger devotes his first five paragraphs to preemption before actually turning to preventive war.
Thus, before proceeding any further, we must first establish definitions:
1) Preemptive war -- sometimes called "anticipatory self-defense" -- is considered legal under international law, but only when undertaken in response to an imminent threat. Moreover, the onus for demonstrating such an imminent threat falls on the country doing the preempting. Which means that bogus or politicized intelligence will not be seen to be anything more than criminal negligence.
2) Preventive war -- sometimes called "anticipatory self-defense" -- is considered illegal under international law precisely because no imminent threat exists. Under international law, preventive war is considered a type of naked aggression.
Consequently, if one assumes that at least some officials in the Bush administration actually understand the difference between legal preemptive war and illegal preventive war, then one also is compelled to assume that the use of the term "preemption" in the National Security Strategies of 2002 and 2006 serves two purposes: (1) As a propaganda shroud designed to place a patina of legality over the coarse reality of naked aggression and (2) to undermine "imminence" as the critical criterion determining legality, and thus render illegal "anticipatory self-defense" legal.
Mr. Kissinger correctly notes that this "extension of the right to self-defense [as articulated in Bush's 2002 National Security Strategy] was widely rejected because the rest of the international community did not accept a definition put forward by one country that reserved to itself the right to implement it."
But Mr. Kissinger errs, and serves as an especially "useful idiot" for the Bush administration, when he claims that greater experience around the world with "emerging threats" explains why Bush's 2006 National Security Strategy "passed without the controversy that marked its predecessor in 2002." First, he should not confuse resignation about the Bush administration's rogue behavior for acceptance. Second, the absence of vociferous rejection hardly implies the world's recognition "that some reconsideration of the existing rules is overdue."
Moreover, Mr. Kissinger is particularly mistaken when he implies that such changes to the existing rules have found their way into the United Nations as a result of efforts by a "high-level group [that] has reported to that effect to the U.N. secretary general."
Mr. Kissinger's "high-level group" is none other than The Secretary-General's High-level Panel on Threats, Challenges and Change," and its report, released in December 2004, carries the title, A more secure world: Our shared responsibility. But the report contains no recommendation supporting the Bush/Kissinger claim for an "extension of the right of self-defense."
Consider Part 3 of A more secure world, which is devoted to Collective security and the use of force. Its synopsis begins by asking: "What happens if peaceful prevention fails? If none of the preventive measures so far described stop the descent into war and chaos? If distant threats do become imminent? Or if imminent threats become actual? Or if a non-imminent threat nonetheless becomes very real and measures short of the use of military force seem powerless to stop it?" [A More Secure World: Our shared responsibility, Report of the Secretary-Generals High-level Panel on Threats, Challenges and Change, United Nations, 2004, p. 61]
And it answers those questions with the assertion: "In all cases, we believe that the Charter of the United Nations, properly understood and applied, is equal to the task: Article 51 needs neither EXTENSION [author's emphasis] nor restriction of its long-understood scope, and Chapter VII fully empowers the Security Council to deal with every kind of threat that States may confront." [Ibid]
In the Charter of the United Nations, "Article 2.4, expressly prohibits Member States from using or threatening force against each other, allowing only two exceptions: self-defense under Article 51, and military measures authorized by the Security Council under Chapter VII." [Ibid, p. 62]
When discussing self-defense under Article 51, the report notes that nothing in the U.N. Charter "shall impair the inherent right of individual or collective self-defense…until the Security Council has taken measures to maintain international peace and security." And it adds: "A threatened State, according to long established international law, can take military action as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate." [Ibid, p 63]
Obviously, although the Bush administration claimed to be threatened by Iraq's weapons of mass destruction and ties to al Qaeda, when it failed to secure a second Security Council resolution authorizing the use of force, it gave fallback justifications for invading Iraq that met none of the criteria specified under Article 51. Thus, it's no accident that U.N Secretary-General Kofi Annan publicly asserted that Bush's war was "not in conformity with the UN Charter," and thus was "illegal." [John Burroughs and Nicole Deller, The United Nations Charter and the Invasion of Iraq, Neoconned Again, p. 368]
In his Post Op-Ed, Mr. Kissinger makes no suggestion that Bush's invasion of Iraq was legal, In fact, his very recommendation that legal anticipatory self-defense should be extended to cover non-imminent preventive war constitutes a tacit acknowledgement that Bush's invasion of Iraq was illegal.
Nevertheless, Mr. Kissinger certainly carries water for the Bush administration when he lends respectability to schools of thought advocating preventive war or regime change to counter "the emergence of nuclear weapons powers," such as Iran.
Yet, rather than moving in the direction implied by Mr. Kissinger, the high-level panel gave a stinging rebuff to precisely such thinking.
In considering a hypothetical situation of a state that, "with allegedly hostile intent" acquires a "nuclear weapons making capability," the high-level panel asked: "Can a State, without going to the Security Council, claim in these circumstances the right to act, in anticipatory self-defense, not just pre-emptively (against an imminent or proximate threat) but preventively (against a non-imminent or non-proximate one)? [A More Secure World, p. 63]
It's answer? "The short answer is that if there are good arguments for preventive military action, with good evidence to support them, they should be put to the Security Council, which can authorize such action if it chooses to. If it does not choose, there will be, by definition, time to pursue other strategies, including persuasion, negotiation, deterrence and containment." [Ibid]
Lest Messrs. Bush, Cheney, Rumsfeld and Kissinger miss the point, the high-level panel added the following rebuke: "For those impatient with such a response, the answer must be that, in a world full of perceived potential threats, the risk to the global order and to the norm of non-intervention on which it continues to be based is simply too great for the legality of unilateral preventive action, as distinct from collectively endorsed action, to be accepted." [Ibid]
So, no, Mr. Kissinger, "the analysis underlying" Bush's "Strategic Doctrine document" is NOT "correct in emphasizing the changes in the international environment and the propensity (or perhaps even the necessity) they create toward some forms of preventive strategy." You're especially mistaken when you imply that the U.N. is moving to legalize unilateral preventive war.
Thus, rather than recommend that the Bush
administration work to bring congressional and sustainable public
support for such illegal preventive war, you might appear less of a
"useful idiot," were you to put your mind to the question: "How does the
world bring to justice a Hegemon that reserves solely to itself the
prerogative of waging illegal preventive wars in the name of
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