Preventive War, Deterrent Retaliation, and Retrospective Disproportionality

Brigham Young University Law Review, 2009 by Lee, Brian Angelo

ABSTRACT:

The legal and moral ("just war") permissibility of preventive military attacks has been one of the most urgent questions in international law since the onset of the War on Terror. Debates in this area commonly rest upon an assumption that the relevant strategic choice is between preventive war and deterrence, and that even if preventive war may be controversial, deterrence at least is legally straightforward and relatively unproblematic. This Article challenges that conventional assumption. I argue that deterrence and preventive war have more in common than is typically noticed-specifically, a shared future orientation and reliance on retrospectively disproportionate violence-and that in virtue of these common features, much of what we say about the permissibility of one of these strategies we shall have to say also about the other, both under international law as manifested in the United Nations system and under contemporary "just war" arguments. Contrary to common assumption, deterrence offers no easy escape from the legal and moral concerns raised by preventive war.

TABLE OF CONTENTS

I. INTRODUCTION ...................................................................... 254

II. FUNDAMENTAL SIMILARITIES BETWEEN DETERRENCE AND PREVENTIVE WAR ............................................................. 257

A. Preview ........................................................................ 257

B. Preliminaries ................................................................. 257

C. Future orientation ........................................................ 259

D. Shared Dependence on Violence .................................. 260

E. Retrospective Disproportionality .................................. 265

F. Implications of Retrospective Disproportionality ........... 269

G. Permitting the Threat, Prohibiting the Act? ................. 270

H. Implications and Roadmap .......................................... 271

III. LEGAL STATUS UNDER THE U.N. SYSTEM ............................ 272

A. Operative Treaty Law and Judicial Interpretations ........ 272

B. Elaboration in Case Law and the General Assembly ...... 274

C. Academic Interpretations ............................................. 277

IV. CONTEMPORARY "JUST WAR" ARGUMENTS ......................... 282

A. Non-Consequentialist Arguments ................................. 282

B. Consequentialist Arguments-General Observations .... 284

C. The Psychological Argument ........................................ 284

D. The Epistemic Argument ............................................. 286

E. The Symmetry Argument ............................................. 287

F. The Self-Fulfilling Prophesy Argument ......................... 288

V. CONCLUSION ........................................................................ 290

I. INTRODUCTION

In the aftermath of the September 11, 2001, terrorist attacks on New York and Washington, D.C., President George W. Bush declared that henceforth the United States would consider preventive war to be among its options for addressing threats posed by hostile regimes abroad.1 This declaration, formalized in the 2002 National Security Strategy document, bore practical fruit in the 2003 United States-led invasion of Iraq and continues to shape current debates over the proper way to respond to the threat of global terrorism and seemingly "rogue" regimes, such as in North Korea and Iran.2

This embrace of preventive war has been highly controversial. Defenders of the policy assert that preventive war is sometimes necessary in an era of rogue states, weapons of mass destruction ("WMD"), and terrorist organizations capable of attacks anywhere in the world.3 Critics of the policy decry the fact that preventive war involves the use of military force to thwart an attack that has not yet occurred and perhaps never will occur. These critics consider such a policy to be both incompatible with international law norms and a reckless abandonment of the global security system that has been constructed at enormous human cost out of the previous centuries' wars.4

It is common to frame this debate as a choice between two alternatives: either preventive war or deterrence (and strategies such as containment and power-balancing that rely upon deterrence).5 It is also common to assume that, however controversial preventive war's legal and moral permissibility may be, deterrence is clearly less problematic than preventive war.6

This Article challenges that fundamental assumption. I argue that preventive war and general deterrence share certain fundamental features and that, by virtue of this similarity, much of what one says about the legal and moral permissibility of preventive war one shall also need to say about deterrence and related approaches. Deterrence thus offers no easy escape from the legal and moral concerns raised by preventive war.

The implications of this conclusion are broad, since deterrence is an essential part of national security strategy in general, both on its own and as a fundamental element in strategies of containment and power balancing: