Rules of Preemption

Commentary, Christian Science Monitor, 6 November 2002

In a case of President Bush's strategic doctrine of preempting terrorists in “anticipatory self-defense,” a CIA plane fired a missile in Yemen Monday, killing an aide of Osama bin Laden and five associates.

The Middle East nation of Yemen is not an enemy, and, in fact, its government cooperates with the US in the campaign against Al Qaeda. Like Pakistan, Yemen may be letting US forces operate against terrorists in ways its own forces can’t.

But every preemptive strike against proclaimed and dangerous enemies pushes the legal boundaries on when a nation can operate militarily in another's territory without a UN mandate. Like terrorists, the US risks operating outside international law.

Mr. Bush stands ready to attack Iraq without a UN mandate. Such action would follow the example of NATO's bombing of Serbia in 1999, that freed Kosovo and led to the downfall of Slobodan Milosevic, who's now being tried for war crimes. And it would be similar to President Clinton's bombing of Sudan in 1998 after an Al Qaeda strike on US forces.

France, which is stalling UN approval of US action against Iraq, sent its troops into Ivory Coast last month to take sides in a civil war — with no UN mandate — and then arranged for a West African force to intervene.

Top UN officials have endorsed intervention in nations for humanitarian reasons, such as to avert genocide or famine, in what's called “responsibility of protection.” And the UN officials also acknowledge widespread frustration over the inability of the Security Council to enforce its resolutions aimed at stopping violence in such trouble-spots as Kashmir or Azerbaijan.

The prospect of more terrorism against the US or its allies should force the international community to redefine the rules allowing states to defend themselves against unusual threats, many of which are not conventional and call for action before an attack actually takes place.

With the US feeling threatened, preemptive attacks like that in Yemen may increase, while legal scholars and international law try to catch up to this new age of unconventional warfare. In the case of invading Iraq, the US says it may bypass the UN if need be, and create a temporary, multilateral coalition of allies to give it both logistical and moral support.

The UN and its Charter are living symbols of the US itself in uniting people under rule of law. Since any law arises out of a consensus among people or among nations, then perhaps a new global consensus should form to change the international rules on self-defense. It can’t come too soon.