Should preemptive war become international law?
Mario Loyola wants international law to enshrine a doctrine of preventative war:
The right of early preemption against threats like Iranâ??s nuclear program must become an international norm of general acceptance if preemptive threats are to have any deterrent value. Current norms â?? and the diplomatic strategies derived from them â?? have only incentivized Iran to sprint toward nuclear weapons. The strategy of increasingly onerous sanctions may be painful for Iran, but it implies that military strikes are off the table as long as further sanctions are in prospect. Thus, starting with the first Security Council sanctions in 2006, Iran knew that it had several risk-free years ahead of it to develop WMD.The only principle that can justify early preemption against a WMD threat is one that calls on dangerous regimes to be transparent in their dispositions. What you could call â??regime transparencyâ? is the key. This is the cardinal principle that was all along missing in the Bush administrationâ??s justification for war against Iraq. The burden of proof should have been on Saddam to demonstrate the non-threatening nature of his weapons programs. In the long run, such a burden could be met only by a regime that was itself essentially transparent, in which the business of government was conducted in an orderly and law-abiding way.
I don't see how this is a practical or desirable standard. Enshrining the doctrine of preventative war around inherently subjective and conditional terms such as "dangerous" or "non-transparent regimes" seems to open the door to all kinds of questions: dangerous to whom? How dangerous? What constitutes a lack of transparency? And so on. What, in other words, stops Russia from claiming the right to attack Georgia preemptively if it purchases U.S. military equipment? What is the normative case against China attacking Taiwan or Iran attacking Saudi Arabia if these states increase their lethality through U.S. arms purchases?
Obviously, you can embrace a policy that states that only the United States has the prerogative to attack other countries on a preemptive basis, but I highly doubt many countries would be interested in enshrining that as "international" law.
Loyola bases his argument on the existence of nuclear weapons:
The â??general principleâ? for preemptive self-defense is that you can preempt an â??imminent attackâ? but nothing more. That rule is ridiculous, and will sooner or later prove suicidal. Because of the instantly deliverable nature of nuclear weapons, waiting for firm intelligence of an imminent threat is a reckless game of chicken in which the claimed right of preemption is triggered only when it is almost too late to make any difference.
But what's new here? Nuclear weapons have been "instantly deliverable" for many decades now. The U.S. has been able to deal with this unfortunate reality rather well, as the record of nuclear wars and nuclear attacks since 1946 seems to suggest.
