Confronting the Bush Doctrine: Critical Views from the Asia-Pacific (Asias Transformations)
As to the first basis, if, as has been asserted above, there exists under contemporary international law a limited right of ASD, which permits a state that anticipates an imminent armed attack from another state to launch an anticipatory strike, is there anything in principle that would bar the extension of that doctrine to an imminent attack by non-state actors, such as terrorists?
Given pre-Charter and post-Charter state practice, and the acceptance by the ICJ in Nicaragua that self-defence can extend to the actions of armed bands, it is submitted that it does not represent a significant development to extend the doctrine to such non-state actors. Because any reliance upon ASD will always invite, and properly so, intense international scrutiny, any state seeking to rely upon ASD in response to a foreign terrorist threat will, in addition to the factors noted above, have an additional evidentiary burden to address.
Whilst any resort to ASD must demand that the defending state is acting in response to a clear, imminent, and overwhelming threat and intention to use force, the exceptional nature of the asserted right against foreign terrorists requires an even higher evidentiary standard. This is because unlike state actors, who due to the nature of their operations are subject to a high level of scrutiny so that foreign states are able to gain considerable covert and overt intelligence on their military strength, capacity, and intentions, terrorist organisations are not as easily susceptible to such analysis.
What, then, is the applicable evidentiary standard in such cases? The clear and convincing standard is also the best standard from a policy standpoint to promote the objectives of international society in regulating the use of force between states, that objective being to drastically limit the use of force. Clear and convincing evidence of what, however? It is suggested that the evidence would need to extend to demonstrating that the international terrorist organisation:. As noted above, it would be an essential element of such reliance upon a right of ASD that the defender state make available for international scrutiny the intelligence it possessed regarding the intent of the international terrorist organisation, lest the state be left open to the charge that it was not the subject of any threat and that no attack was imminent.
The second possible basis upon which a defender state, unable to rely upon self-defence in its various guises, could seek to justify an anticipatory strike against a foreign terrorist organisation might be on the ground of necessity. A state of necessity may only be claimed where:. In addition, necessity may not be invoked if the international obligation is one that excludes the possibility of invoking necessity, or the state has contributed to the situation of necessity.
The potential for a defender state to invoke a plea of necessity if compelled to use anticipatory force against a foreign terrorist organisation raises additional issues of state responsibility, which are too numerous to explore in detail here. The first is that whilst necessity provides a possible legal basis to exculpate a defender state, it would only apply in very narrowly defined circumstances. As noted by Schachter, the conditions for invoking necessity:. The second substantive issue is that the plea of necessity cannot be relied upon where the international obligation in question excludes the possibility of invoking necessity.
This directly raises the issue of whether the article 2 4 Charter obligation is of this character. The rule against aggression in the broad sense is generally regarded as jus cogens. A limited intervention against outlaws, though an illegal use of force, would fall short of aggression. This would seem reasonable when the motivation of the intervention is to capture or destroy terrorists … and the military action is brief and circumscribed. These are matters that demand some consideration in the context of the anticipatory use of force against international terrorist organisations.
International law imposes a range of obligations upon states with respect to activities taking place within their territory and under their control.
Setting aside the instances where terrorist acts are properly characterised as state-sponsored or where they have been subsequently endorsed and adopted by a state so as to incur responsibility,  what responsibility does a state owe to the international community and other states to combat terrorist operations within its own territory? Here two scenarios arise. The first is where the state has knowledge or suspicions of the operations of the terrorist organisation and has knowledge of an attack having taken place against a foreign state.
To that end, states that are facing this scenario on their territory may either individually take up that responsibility to confront the terrorist organisation,  or they may work with the international community to combat the problem. This certainly was the case with Afghanistan in and Lebanon in The second scenario arises where a state suspects or is aware of the activities of terrorist organisations within its territory, but does not have precise knowledge of planned terrorist attacks against foreign states. In this instance, the key issue is whether failure by a state to confront the activities of a terrorist organisation within its territory is an internationally wrongful act.
This requires an assessment as to the content of the obligations upon states to combat terrorism prior to a terrorist act having been committed. Whilst the obligation will vary from state to state,  multilateral treaties and General Assembly and Security Council Resolutions make clear that states are under obligations to prevent terrorism. Hostile activity by individuals in one State directed at another State is usually wrapped in secrecy and often takes place at a remote, sparsely populated border.
It is often difficult to police. What is required is that the neutral State make a good faith effort. The first is in the process of disintegrating such that government functions are under strain, there is a breakdown of law and order within its territory, and border, economic and security controls are becoming difficult to enforce. Do such states have a different lesser duty to deal with international terrorists based in their territory?
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Whilst membership and recognition by the UN will be a factor to be taken into account, the other traditional requirements for the existence of a state must also be considered. This would certainly be the case with a failing state.
- Gavan McCormack, Remilitarizing Japan, NLR 29, September–October .
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Whilst the content of that obligation may be variable, it has been argued that:. Where states do not have the means available to suppress such acts, it is difficult to establish that they have breached their duty.
Table of Contents: Confronting the Bush doctrine :
However, whilst this may go ultimately to issues of state responsibility, it does not directly address the issue of whether such states are more susceptible to legitimate acts of ASD by defender states. Bothe, on the other hand, has argued that where there has been an omission on the part of such states to act to counter terrorism, then:. On the basis of the assumption that there is a legal duty of care of every state to prevent transborder activities of terrorism originating from its territory, that construction may be considered valid.
Much may therefore turn on whether the state has in good faith within the constraints of its capacities sought to meet its international obligation to counter terrorism, or whether there has been a complete omission to do so. A failed state, on the other hand, may arguably have no legal obligation to counter terrorism because it has no capacity to do so. In these instances, it is arguable that, in the absence of collective action by the international community to provide aid and assistance to restore the failed state,  a defender state has an even greater legal capacity to seek to intervene militarily to neutralise an imminent terrorist threat: not on the basis that the traditional constraints of article 2 4 of the Charter are not applicable, but rather on grounds of self-defence as discussed above.
Having considered the position at international law in relation to self-defence generally and, more specifically, the right of self-defence against non-state actors, in particular terrorists, a review will be now undertaken of the political standpoints adopted by the United States and Australia. It is perhaps inevitable, given the closeness of the Bush and Howard administrations, that there have been attempts to link pronouncements by members of the Howard government with the Bush doctrine of pre-emption.
But is there perhaps a subtle difference between the two? The core rationale and philosophy of the Bush doctrine were contained in Section V of the NSS , which, in an apparent attempt to reconcile the doctrine with the existing law of self-defence, stated that:. For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack.
Australian Year Book of International Law
Legal scholars and international jurists often conditioned the legitimacy of pre-emption on the existence of an imminent threat — most often a visible mobilisation of armies, navies, and air forces preparing to attack. It states:. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively.
Notwithstanding some qualifications as to exactly when pre-emptive force would be used,  it was clear that what the United States announced in sought to extend considerably the doctrine of ASD and to reinterpret radically the right of self-defence under contemporary international law. It was no longer necessary for the threat to be imminent: it need only be incipient.
Some have said we must not act until the threat is imminent. Since when have terrorists and tyrants announced their intentions, politely putting us on notice before they strike? He has steadfastly maintained that the decision to use force in Iraq, arguably the first application of the Bush doctrine, was correct.
The Bush doctrine of pre-emption remained a key element.
Confronting the Bush Doctrine: Critical Views from the Asia-Pacific (Asia's Transformations)
We choose to deal with challenges now, rather than leaving them for future generations. We fight our enemies abroad instead of waiting for them to arrive in our country. When the consequences of an attack with WMD are potentially so devastating, we cannot afford to stand idly by as grave dangers materialise. This is the principle and logic of preemption. The place of preemption in our national security strategy remains the same … . Despite these strong words and the political rhetoric of the administration, the United States has up until the time of writing restrained itself from any further application of the Bush doctrine of pre-emptive use of force other than, arguably, military intervention in Iraq.
From onwards various senior members of the government began to advocate not only the possibility of military intervention in Iraq, but also a reassessment of the right of self-defence under international law and in state practice. Unlike the Bush government, the Howard government has not produced any document in which it clearly articulates its position in relation to the use of pre-emptive force to prevent terrorism. That position must be gleaned from material publicly available.
Accordingly, what follows is an analysis of public statements made by the Prime Minister, Mr Howard, the Minister for Foreign Affairs, Mr Downer, and the former Minister for Defence, Senator Hill, on the matter,  and, where available, official government publications, in particular by the Department of Defence Defence. In response to a query as to when the Australian government had decided to support the Bush doctrine, he said:. For the reasons given above,  provided that certain conditions are satisfied, it is submitted that ASD is lawful.
In November , Senator Hill advanced the Australian debate on pre-emption in a speech delivered at the University of Adelaide. A better outcome might be for the international community and the international lawyers to seek an agreement on the ambit of the right to self-defence better suited to contemporary realities. Representatives of the Indonesian, Thai, Philippine and Malaysian governments expressly rejected the assertion of a right to launch counter-terrorist pre-emptive action in their territories.
In early , much of the debate in Australia was focused on whether there was a basis for the use of force against Iraq because of its alleged possession of WMD.
Senior members of the Australian government actively canvassed a number of possible justifications for military intervention, and the issue of pre-emption once again became a matter of public concern and comment. He said:. What we were saying last year … is that, in this new environment of terrorist acts by non-state players … the doctrine surrounding self-defence as it applies to the right to pre-empt the attack may need further consideration.
This is not a new doctrine … in a world of terrorism, where the attacks are not advertised, where they are carried out by non-state players and where they use asymmetric means such as flying aircraft into buildings, this jurisprudence needs revision. Accordingly, that military action cannot be seen as an example of the Howard doctrine in action. In an interview on 19 September , the Prime Minister, responding to comments by the then Opposition Leader, reaffirmed the Howard doctrine, as articulated by him in Interviewed on the same program, he said:.
Shortly after the re-election of his government in October , the Prime Minister reiterated the Howard doctrine. When asked about the circumstances in which he contemplated that pre-emptive action would be taken he said:. A few days later the Prime Minister was interviewed on Indonesian television just after arriving in Jakarta to meet the then Indonesian President-Elect, Susilo Yudhoyono.
When pressed by journalists with respect to his comments on the use of force within the region he sought to exclude Indonesia as being a country in which Australia would seek to apply the doctrine because of the strength of the bilateral relationship between the two countries.
We must be ready to detect and prevent any imminent threats to our security. This means ensuring we have a national counter-terrorism framework that allows us to take action, whenever possible, to lawfully prevent terrorist activity. The government like others before it had been reluctant to accede to the Treaty, one suggested reason being concern as to the effect of the TAC on the Howard doctrine given its obligations on parties to refrain from the threat or use of force.
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