Doyle Addresses Issue of preemptive Strikes in New Book

 

By PAUL WACHTER

 

In his new book from Princeton University Press, Professor Michael W. Doyle proposes refashioning international laws related to preventive war.

 

In Striking First: Preemption and Prevention in International Conflict, Doyle strikes a balance between current international law, which holds that states may go to war only after being attacked or when facing an “overwhelming” and “imminent” threat, and the “Bush Doctrine,” which advocates the use of force to “pre-empt emerging threats.”

 

Doyle, the Harold Brown Professor of International Affairs, Law and Political Science, outlines his position in two essays, outgrowths of the 2006 Tanner Lectures he delivered at Princeton University.

 

In the first essay, Doyle traces the modern history of the international laws that have governed war, which he deems too burdensome. He points to the four criteria for justifiable preemptive use of force that arose from the 1841 correspondence between U.S. Secretary of State Daniel Webster and British Minister to Washington Henry Stephen Fox, after Canadian troops entered U.S. territory and seized an American steamer, the Caroline, which had been leased by a small band of so-called Patriot rebels.

 

Webster condemned the attack, arguing that preemptive attacks had to be “overwhelming” in necessity; that the attacker was left with “no choice of means”; that the attacker faced so imminent a threat that there is “no moment of deliberation”; and that the attack had to be proportional. The Canadian incursion failed each of these criteria, Webster argued, though ultimately he accepted a British apology. The logic was echoed by Article 51 of the Charter of the United Nations, today’s international standard.

 

Doyle argues that the bar for preemptive action is set too high. To take just one example, today’s standard did not allow for Israel’s preemptive strike in the 1967 Six-Day War, after Egyptian forces had massed at its borders. And while the U.N. Security Council, in theory, remains a forum for deciding whether multilateral prevention is necessary, too often it has failed to address real threats and crises — Kosovo and Rwanda being notable examples.

 

After the 9/11 attacks America sought to expand its notion of justified preemptive action. But the Bush administration went too far, Doyle writes. In its National Security Strategy, issued in September 2002, the Bush administration made the case for “taking anticipatory action to defend ourselves” — especially in an age of weapons of mass destruction. Vice President Dick Cheney spoke of a “one percent doctrine,” meaning that even a 1 percent chance of an attack with weapons of mass destruction justified a preemptive attack.

 

Doyle argues that such a doctrine is untenable, especially if other countries adopt similar standards. “Unless all states agree on what constitutes a specific threat — and they almost never do ­— every state will be preempting every other state’s preventive strikes.” If Bush’s arguments were used during the Cold War, they could have justified a preventive attack on the Soviet Union and China just before those powers acquired nuclear capabilities. Today, a globally accepted Bush Doctrine could lead to wars between Pakistan and India, and between China and Taiwan.

 

In place of the Bush Doctrine, Doyle proposes four standards for “anticipatory self-defense,” which would not supplant the current U.N. backed international standard, but which would allow for the rare instance when unilateral preemption is necessary and justified. The standards are lethality, likelihood, legitimacy and legality.

 

“Lethality” measures the amount of anticipated harm in lives and goods. “Likelihood” measures the chances of an attack, based on liberal and realistic theories of state power, as well as on the presence of increasingly dangerous non-state terrorist actors. Doyle defines “legitimacy” as the three-fold process of weighing the perceived harm versus the benefit-cost of the response; limiting the response to the minimum necessary; and seeking multilateral deliberation.

 

“Legality” measures preemptions compliance with existing international law. Doyle advocates taking the appropriate steps at the Security Council, but in the event of unilateral action, forming a national commission to examine the facts and make public their findings.

 

He then details instances where these standards were met: placing sanctions on apartheid South Africa, Kennedy’s Cuban missile quarantine and 1998 American counterterrorism measures against al-Qaeda. The standards were not met in the case of the U.S.-led invasion of Iraq, nor would they be, given existing information, in a potential preemptive attack on Iran.