Memo To: Leon Fuerth, VP Gore’s National Security Advisor
From: Jude Wanniski
Re: Financial Times op-ed
What a nice op-ed, Mr. Fuerth. “America Need Not Be a Law Unto Itself.” Perfect. But why couldn’t you place it in The Washington Post or The New York Times, where Mr. Gore might have seen it? The Democratic dwarfs running around in search of the party’s 2004 presidential nomination have been pathetic in their expositions on foreign policy. The last time I heard a Democrat make sense on how we might better approach global governance is when former VP Al Gore spoke out on the topic – two or three days before he announced he was retiring from politics. Where is he now when we need him, to push back at the hawks in the Bush administration who insist we can go it alone in the world? You must chat with him now and then about what’s going on. I know he said he wanted to get out of the way so the other presidential wannabes can flex their muscles and get used to the presidential political track. It does seem hopeless, though, and every day I think how nice it would be if Al Gore changed his mind and got back into it. I don’t agree with him on a great many issues and did vote for Mr. Bush in 2000. But sometimes I wish it had turned out differently. Reading your op-ed in the FT reminds me why. The world needs him, if only to pull President Bush back from the hawk strategy of perpetual war for perpetual peace.
America need not be a law unto itself
By Leon Fuerth
Published: May 11 2003
The Bush administration's security doctrine asserts that presidents have a unilateral, natural right to make war pre-emptively. In short, the administration believes that war works and international law does not. Many Americans are ready to accept that war is sometimes unavoidable, but not that the US can be safe only if it becomes a law unto itself. The question is whether it is possible for the US to balance might and right inside the framework of international law.
Article 51 of the United Nations Charter says that nations may use force pre-emptively for self-defence in case of "imminent" attack. The term "imminent" is not very well defined, but its legal history strongly suggests a very high standard of restraint: perhaps too high for the modern age, when the difference between life and death can be measured in minutes. Does it follow that international law is irrelevant or even harmful for a country such as the US? Because if that is true, it is true for everyone, for example India and Pakistan. And if we do not believe that a lawless world is in our interest, then how are we to protect ourselves without throwing off all restraints for others? To do this, it is important to reason carefully about specific cases in relation to general principle. There are four such instances: Iraq, North Korea, Iran and international terror organisations.
In the case of Iraq, the administration did not claim that the US faced an imminent threat of attack, but rather that it was obliged to use force to prevent Iraq from ever acquiring weapons of mass destruction or from conveying them to terrorist groups. Iraq's potential to threaten the US was real enough, given time. And as some have said, the UN Charter is not a suicide pact. But it was not necessary to violate article 51 in order to justify action.
Iraq was massively in breach of the terms of the ceasefire agreement that halted the first Gulf war, and had continued to refuse requests from the Security Council to comply. This fact alone provided a rationale for a resumption of hostilities. Not everyone might agree with that rationale, but it would have been better had the administration held to that point, rather than justify war in Iraq in terms that made it a test case for its doctrine of pre-emption. Fortunately, the administration used multiple justifications for war, and so may retrospectively "clarify" its views in a way that reverses the damage otherwise done to article 51.
Meanwhile, North Korea has already become precisely the menace that Iraq only might have been. A peaceful solution to this crisis is highly desirable but may not be attainable. If force does become necessary, the administration should not fall back on the idea of pre-emption. A state of hostilities has existed with North Korea for more than half a century, suspended only by a ceasefire agreement. Under the circumstances, North Korea's nuclear weapons threats call into question the validity of that agreement.
In the end, no amount of pressure may suffice for Iran to abandon its search for weapons of mass destruction. Does article 51 then mean that the US can take no action until faced with an Iranian nuclear strike? That is a standard not likely to be honoured. Perhaps the notion of "imminent" threat means one thing when dealing with conventional forces, and something very different where weapons of mass destruction are involved. It might be that the closer a country comes to deploying such weapons, the closer it gets to triggering the rights of others to actions of pre-emptive self-defence within the sense of article 51.
Finally, there is the question of whether article 51 somehow ties US hands when dealing with international terrorism. Article 51 is meant to regulate relations among states and, since terrorist groups are not states, they can expect no protection. UN Security Council resolutions 1368 and 1373, written as responses to the attacks of September 11, each reaffirm "the inherent right of individual or collective self-defence as recognised by the Charter of the United Nations". In other words, article 51 applies. One may plausibly argue that, under these resolutions, nations have latitude to define what is an imminent threat where international terrorist organisations are concerned. States that offer succour to terrorists do so at their peril.
International law can be used forcefully to help sustain an international order in which democratic countries will flourish. But if international law is so tough, why go to so much trouble to preserve it by means of careful parsing? Because the essence of international law is to counsel powerful nations to be restrained in the use of violence. If that principle is withdrawn, international life is strictly a matter of power and who has it. To this point, although Americans have understood that force is sometimes needed to sustain international order, we have also dreamed of building an international order strong enough to confine force itself. That is worth preserving as an American message for the 21st century. It is a false choice to say that we can be secure only by giving it up.
The writer is a research professor at George Washington University and was national security adviser to US vice-president Al Gore