A pre-emptive strike policy: fighting war, destroying order

One of the greatest achievements of the post-1945 world has been the dramatic decline in the number of traditional interstate wars. The number of sovereign states has multiplied to almost 200, yet the vast majority of conflicts today are civil wars. The Howard Government now proposes changes to international law that risk seriously destabilizing this order.

A critical factor in reducing the incidence of interstate wars has been the near universal acceptance of two cardinal rules of international law. The first is the principle of non-intervention, which bans external interference in the internal life of sovereign states. The second is the principle that force may be used only in clear-cut cases of self-defence or as part of a United Nations mandated action to preserve international peace and security.

Since the end of the Cold War, the international community has relaxed these rules to allow force to be used to prevent supreme humanitarian emergencies, such as mass starvation in Somalia and ethnic cleansing in Kosovo. But these have been tentative, inconsistent moves, and the vast majority of states remain firmly committed to a set of rules that contributed so substantially to the preservation of international order.

The Howard Government is now calling for the revision of these cardinal rules. With the rise of global terrorism, we face fundamentally new security challenges and international law must change to allow effective responses. Robert Hill told an audience at the University of Adelaide last week that the ‘international legal machinery is slow to adapt to these rapidly changing circumstances---but it is important that it does’. He argued that ‘Sovereignty is not a blank cheque’ and that the doctrine of self-defence should be redefined. Echoing the Bush Administration, he argued that ‘it’s time for a new and distinct doctrine of pre-emptive action to avert a threat’.

International law is an evolving institution, and few would deny that it should evolve to serve the changing needs of global order and justice. However, anyone with the slightest concern for the preservation of international peace and security must be profoundly concerned about this latest turn in Australian foreign policy.

The principal motive behind the Government’s campaign is to create an international legal environment that permits maximum freedom of action for the United States and its allies in the prosecution of the ‘war against terrorism’ and the ‘axis of evil’. One of the main goals here is to redefine the highly circumscribed doctrines of self-defence and non-intervention to allow two kinds of use of force. The first is the extra-judicial killing exercised in the recent US attack with an unmanned drone on alleged Al-Qaeda operatives in Yemen. The second is the war of disarmament and regime change envisaged for Iraq. If the rules of self-defence and non-intervention can be sufficiently relaxed, then it would become permissible to conduct such actions unilaterally, outside of the framework of the United Nations.

The dangers associated with such a move are multiple and deeply serious. First, it has the very real potential to render the UN Security Council irrelevant. If states are able to justify the unilateral use of force in the name of an expanded conception of self-defence and a right of pre-emption, the Security Council’s current role in licensing and limiting the exercise of war will be seriously undercut.

Second, it threatens to replace the current highly successful rule-based international order with a much more permissive environment. One in which states need only claim that they face an imminent threat to launch a unilateral pre-emptive war. Once the United States, Australia and others have claimed this right, on what basis can it be denied to Pakistan, China, Israel, North Korea, or others?

Third, the relaxation of rules of self-determination and non-intervention may well have serious implications for the security and stability of the Asia-Pacific region. General acceptance of these rules has been a crucial factor in stabilizing relations among ASEAN states. Do we really wish to see this eroded?

Finally, an international campaign by the United States and Australia to revise the rules of self-defence to allow pre-emptive war is likely to greatly intensify anti-Western sentiment globally. For the vast majority of states, particularly in the developing world, the right of non-intervention and legal restrictions on the use of force by powerful states are seen as fundamental guarantees of their security and independence. They can be expected to defend these norms vigorously.

The onus is on the Howard Government to explain to the Australian people and the international community why it is worth risking these dangers. At a very minimum, Robert Hill and other senior ministers must answer two core questions. How, precisely, can the basic rules governing the use of force be revised to permit genuine responses to imminent danger while preventing the abuse of more permissive rules for purposes of adventurism and aggrandizement? And by what mechanism should the rules be revised?

On the latter question, the Government might argue that changes should be made through the multilateral procedures of the United Nations. If this is the case, it must be explained why the vast majority of the world’s states would agree to such revisions. Alternatively, the Government might decide that such change is best brought about through unilateral, precedent setting actions. But this would involve using law-breaking activity to change the law, and the Australian people are entitled to know how the risks to international order would be averted.

The Government will soon launch a new Foreign Affairs White Paper, and we can expect it to reaffirm Australia’s commitment to the US alliance, the ‘war against terrorism’, engagement with our region, and multilateral institutions, including international law. The question of revising the core rules of self-defence and non-intervention goes to the heart of how the Government will balance and reconcile these objectives. It is thus a critical test of the Government’s commitment to global and regional order.