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The Bush Doctrine and the Emerging Norm of Anticipatory Self-Defense in Customary International Law, 15 Pace Int'l L Pace International Law Review Volume 15 Issue 2 Fall 2003 Article 1 September 2003 The Bush Doctrine and the Emerging Norm of Anticipatory Self- Defense in Customary International Law John Alan Cohan Follow this and additional works at: https://digitalcommons.pace.edu/pilr Recommended Citation John Alan Cohan, The Bush Doctrine and the Emerging Norm of Anticipatory Self-Defense in Customary International Law, 15 Pace Int'l L. Rev. 283 (2003) Available at: https://digitalcommons.pace.edu/pilr/vol15/iss2/1 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace International Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. PACE UNIVERSITY SCHOOL OF LAW INTERNATIONAL LAW REVIEW Volume XV, Number II Fall 2003 ARTICLES THE BUSH DOCTRINE AND THE EMERGING NORM OF ANTICIPATORY SELF-DEFENSE IN CUSTOMARY INTERNATIONAL LAW John Alan Cohan, Esq.* I. Introduction ....................................... 284 II. The Content, Methodology, and Evolution of Customary International Law ..................... 290 III. Background of Autonomous Use of Force and U.N. Charter Law ...................................... 304 IV. Notion of Self-Defense Based on Implied Authorization of Security Council Resolutions ..... 307 V. Self-Defense Under Article 51 of the U.N. Charter and the Inherent Right of Self-Defense Under Customary International Law ..................... 314 VI. Precedents and Reactions in the U.N. to Anticipatory Self-Defense .......................... 322 * The author is a lawyer and a writer. He is a former law clerk for Federal Judge Charles H. Carr, and has written extensively in the fields of international law, environmental law, philosophy of morals and ethics, public policy, political ethics, and jurisprudence. 1 PACE INT'L L. REV. [Vol. 15:283 VII. Justification for the Doctrine of Anticipatory Self- D efense ............................................ 328 VIII. The Principle of Proportionality ................... 337 IX. Proportionality and the Goal of Regime-change .... 341 X. Humanitarian Intervention and Customary International Law ................................. 345 XI. Conclusion ......................................... 351 I. INTRODUCTION Deep divisions exist among states over whether there is any legal basis whatsoever for attacking Iraq in OperationIraqi Freedom. On the eve of the campaign, Secretary General Kofi Annan said, "If the action is to take place without the support of the Council, its legitimacy will be questioned and the support for it will be diminished."' In his 2002 State of the Union address, President Bush said, "From this day forward, any nation that continues to har- bor or support terrorism will be considered by the United States as a hostile regime." Concerned about the connection between nuclear weapons, rogue states, and terrorists, the President re- leased his National Security Strategy in fall 2002. President Bush said, "America will act against such emerging threats before they are fully formed."2 He later announced that "the policy of [the U.S.] government is the removal of Saddam [Hus- sein]."3 Following the Azores summit meeting with the leaders of the United Kingdom and Spain in March 2003, President Bush said to reporters: On this very day 15 years ago, Saddam Hussein launched a chemi- cal weapons attack on the Iraqi village of Halabja. With a single order, the Iraqi regime killed thousands of men and women and children without mercy or without shame. Saddam Hussein has proven he is capable of any crime. We must not permit his crimes to reach across the world. Saddam Hussein has a history of mass murder. He possesses the weapons of mass murder. He agrees- 1 Felicity Barringer, Eclipsed by Events, U.N. Officials Wonder About the Past and Ponder the Future, N.Y. TIMES, Mar. 18, 2003, at A19. 2 Thomas Powers, The Man Who Would Be President of Iraq, N.Y. TIMES, Mar. 16, 2003, at Week in Review, 1, 7. 3 Allies Discuss Terrorism and the Middle East: Bush and Blair on Policy, N.Y. TIMES, Apr. 7, 2002, at A14. https://digitalcommons.pace.edu/pilr/vol15/iss2/1 2 2003] THE BUSH DOCTRINE he agreed to disarm Iraq of these weapons as a condition for end- ing the Gulf War over a decade ago. The United Nations Security Council Resolution 1441 has declared Iraq in material breach of its longstanding obligations; demanded once again Iraq's full and im- mediate disarmament; and promised serious consequences if the regime refused to comply. The resolution was passed unani- mously, and its logic is inescapable. The Iraqi regime will disarm itself or the Iraqi regime will be disarmed by force. And the re- 4 gime has not disarmed itself. President Bush's intention to remove Saddam Hussein in Operation Iraqi Freedom should come as no surprise. Hussein has been a source of continued concern to the United States since his invasion of Kuwait in 1990.5 Hussein has fostered ter- rorism in sophisticated training camps and maintains relation- ships with some of the most deadly international terrorist organizations in the world.6 He has repeatedly terrorized his own people and the international community since he seized power in Iraq two decades ago. He has engaged in genocide against his own people and has committed various transgres- sions, ranging from the near total suppression of political free- doms, to arbitrary arrest and detention, disappearance, torture and execution of those who disagree with his policies. 7 For ex- ample, he had his soldiers engage in the mass murder of thousands of Kurds by lining them up and shooting them.8 In 1980, Iraq became the first state known to deploy chemi- cal weapons in the seventy years since the end of World War 1.9 Iraq unleashed mustard agents on the Iranians through artil- lery, helicopter, and airplane bombardments. 10 From 1987 to 4 Excerpts from Joint News Conference: 'Tomorrow Is a Moment of Truth,' N.Y. TIMES, Mar. 17, 2003, at A12 [hereinafter Excerpts]. 5 5 See Christopher Clarke Posteraro, Intervention in Iraq: Towards a Doc- trine of Anticipatory Counter-Terrorism, Counter-Proliferation Intervention, 15 FLA. J. INT'L L. 151, 153 (2002). 6 See Posteraro, supra note 5, at 212. 7 See generally Human Rights Watch Policy on Iraq, HuMAN RIGHTS WATCH, at http://www.hrw.org/campaigns/iraqhrwpolicy.htm (for a very useful overview of the abysmal record of human rights violations committed by Saddam Hussein). Human Rights Watch is an organization that monitors human rights violations around the world; Middle East Watch is a subsidiary division or committee of Human Rights Watch. 8 See Posteraro, supra note 5, at 159. 9 See id. at 157. 10 See id. 11 See id. at 158-59. 3 PACE INT'L L. REV. [Vol. 15:283 1988, Hussein bombarded the Kurds with chemical weapons, in- cluding sarin and VX, killing 200,000 and leaving nearly four million people permanently blind, sterilized, disfigured, or un- naturally prone to develop cancer and respiratory diseases.11 In December 1990, prior to the commencement of Operation De- sert Storm, Iraq used the diplomatic pause of last-round Secur- ity Council negotiations to load twenty-five warheads and 166 aerial bombs with biological warfare agents.12 On the eve of OperationIraqi Freedom, the Iraqi regime summarily executed, without trial, dozens of prisoners who had been detained as "spies" at Abu Ghraib, one of the largest and most feared jails in Iraq. 13 There is compelling evidence that Saddam Hussein has ac- quired quantities of bomb-grade uranium, has created a work- ing nuclear weapon, and has the ability to fashion so-called "dirty bombs."' 4 For some time, there has been compelling evi- dence that Iraq has supported terrorist operations that target the United States.' 5 In a report in 2002, the Central Intelli- gence Agency said that Iraq had not accounted for 15,000 artil- lery rockets.16 In the past, these rockets had been the preferred means for delivering nerve agents.' 7 Iraq also has not ac- counted for about 550 artillery shells filled with mustard agent. 18 Hussein's bloody legacy, his disregard for the lives of his own citizens, his pursuit of weapons of mass destruction, and his support for international terrorism, clearly underscore the concern that, to use the words of President Bush, "[w] e must not permit his crimes to reach across the world."' 9 11 12 See Report of the Secretary-Generalon the status of the implementation of the Special Commission's plan for the ongoing monitoring and verification of Iraq's compliance with relevant parts of section C of Security Council resolution 687, U.N. Doc. S/1995/864 (1991), at 29, para. 75(w). 13 Ian Fisher, As Hussein Faded, PrisonersWere Executed, N.Y. TIMES, Apr. 28, 2003, at Al. 14 Posteraro, supra note 5, at 173-74. 15 See Posteraro, supra note 5, at 180. 16 See Bernard Weinraub, A Nation at War: In the Field Intelligence; Army Reports Iraq is Moving Toxic Arms To Its Troops, N.Y. TIMES, Mar. 28, 2003, at B6. 17 See id. 18 See id. 19 Excerpts, supra note 4, at A12. https://digitalcommons.pace.edu/pilr/vol15/iss2/1 4 20031 THE BUSH DOCTRINE In President's Bush report to Congress justifying Operation Iraqi Freedom, emphasis was laid on Iraq's link to terrorists: Both because Iraq harbors terrorists and because Iraq could share weapons of mass destruction with terrorists who seek them for use against the United States, the use of force to bring Iraq into compliance with its obligations under U.N.S.C. resolutions would be a significant contribution to the war on terrorists of global reach. A change in the current Iraqi regime would eliminate an important source of support for international terrorist activities.
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