Preventive Doctrine

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Preventive doctrine describes a defense strategy according to which there is a right to take preventive measures in the run-up to an armed attack.

origin

The precursors of the modern discussion regarding the legitimacy of preventive courses of action in the run-up to armed conflicts can be traced back to the middle of the 19th century. Lord Webster's famous note in the Caroline case, for example, bears witness to the need for preventive defense options immediately prior to an armed attack.

However, the unilateral preventive use of force does not require a special legal basis under international law until the introduction of Art. 2 (4) UN Charter and the associated comprehensive domestication of violence in a prohibited state. Until now, the ius ad bellum (with the exception of the ineffective Kellogg-Briand Pact ), as an outflow of sovereignty, was a core area of ​​state decision-making authority. Consequently, the preventive doctrine only describes a directional correction. This historical context appears interesting insofar as in the discussion regarding the use of preventive defense measures, these are often classified as a kind of anomaly under international law. In the light of the political impetus of the openly formulated statement of the National Security Strategy of the USA in 2002 (confirmed in 2006), the question of international law is considerably catalysed. Because with the National Security Strategy, the only remaining effort hegemonic a legitimacy of preventive action.

If one puts this route of the American administration in its political context, it can be stated that the USA itself is not in danger of having to tolerate unilateral preventive measures against it by other states. Rather, only one's own potential for action is expanded in a conscious manner. This strategy is justified with the emergence of new threat scenarios, which are primarily indicated on the basis of asymmetrical hazard potentials. A part of the international community, on the other hand, reads in this doctrine the empowerment to arbitrary intervention supported by international law. The Iraq invasion in the spring of 2003 is also partially understood as a failed model of a doctrine which, due to an inherent weaving error, virtually challenges false prognoses . Although the President of the United States expressly refers to the new defense strategy in view of the Iraq invasion on March 17, 2003, the legitimacy of the Iraq invasion under international law remains open to strong doubts, even on the basis of the National Security Strategy. This shows that the discussion of the legal standards cannot begin with the empirical finding of the incorrect application of these standards. Otherwise the erroneous legal practitioner would be able to dictate the standards at his discretion.

In addition, despite the central political role of the USA, it should not be overlooked that other states such as B. France or Russia have included the right to unilateral prevention in their defense strategies.

In 2005, the Washington Post published a United States Department of Defense draft of President George W. Bush's Preventive Doctrine . The 69-page paper of March 15 indicated the possibility that the US would also consider the preventive use of nuclear weapons as a deterrent for states or terrorist organizations. The draft contained guidelines for commanders who must apply for a presidential permit to use nuclear weapons. A credible deterrent would include the armed forces being allowed to conduct pre- emptive strikes against weapons of mass destruction directed against the United States or its allies.

Approaches to justifying legitimacy under international law

The predominant doctrine of international law rejects the preventive doctrine as incompatible with the standards of international law. In the case of preventive doctrine, it seems to be possible to quickly refer to illegitimacy in the course of an intuitively easy to trace reasoning path. Because Art. 2 (4) UN Charter prohibits the use of force in interstate relations and the only breaches of this maximum value of the international legal order are the right of self-defense and the procedure of the Security Council according to Chapter VII .

A positivistic view would break off a further discussion with reference to the open structure of the regulatory framework. However, this fails to recognize that the UN Charter does not make any express statements on the permissible exercise of preventive options in the run-up to an armed attack, and therefore does not describe the problem. To be clearer, the concern that a threat of weapons of mass destruction from terrorists or unpredictable regimes will arise is not included as a scenario in the UN Charter. The only actual statements of the UN Charter are, on the one hand, that violence is prohibited in intergovernmental relations (Art. 2 (4) UN Charter) and that the right to self-defense is unaffected in the event of an armed attack (Art. 51 UN Charter ) remains. Following on from this, one could formulate the thesis that in the case of preventive actions there can be no armed attack inherent in the concept, and that this could therefore never be covered by Article 51 of the UN Charter. The prerequisite for this thesis, however, is that Article 51 of the UN Charter can actually only trigger a right to self-defense in the event of an armed attack. However, state practice and the legal conviction of the international community unanimously document that the imminent armed attack is also covered by Article 51 of the UN Charter. This clear normative individual statement of the international legal order emerged in the context of the events of the Six Day War in Israel . It was based on the justification that no state could be expected to wait until an armed attack actually occurred.

At this point, one might think that the right to invoke the right of self-defense from Art. 51 of the UN Charter must then be a prerequisite that an armed attack must in any case be imminent. However, this is not the case that typifies preventive doctrine either, since it aims to certify the legitimacy of military measures in the run-up to the imminent attack. Such a justification path would in principle be a consistent continuation of the positivistic approach chosen above, which derives a suitable solution to the problem from individual statements. However, on a second look, this thesis also only appears to be valid if another premise applies. This premise must be formulated in such a way that, according to its content, Article 51 of the UN Charter can actually only establish a right to self-defense in the immediate run-up to an attack. However, in resolutions 1368 and 1373 , the Security Council also qualified terrorist attacks as armed attacks. The inner logic of terrorism justifies the unpredictability of the impending attack. Consequently, in the case of self-defense due to the threat of terrorist attacks, the imminence of an attack can never be reliably justified. Thus the prima facie understanding of Article 51 of the UN Charter does not mature into a suitable problem solution. As a result, one could either question the scope of the Security Council resolution or reject the requirement of the imminent attack as out of date and try to continue the path outlined above with an infinite recourse. However, it seems more natural to consider other problem-solving approaches.

In any case, both Article 51 of the UN Charter and the prohibition of violence in Article 2 (4) of the UN Charter protect the self-preservation interests of states, and thus both provisions are essentially aimed at protecting the same legal interest. How now this legal interest of the attacking party, i.e. the state which invokes its self-preservation interest protected by Art. 51 UN Charter, to the same legal interest on the part of the attacked, i.e. the state that has declared its self-preservation interest through the prohibition of Article 2 ( 4) UN Charter is protected, is in relation, is - as shown above - by no means unambiguous. At first glance, there is much to be said for balancing these two conflicting directions of protection according to the model of practical concordance .

This undertaking undertakes the newly acquired understanding of international law as a value system. At first glance, a system of values ​​based on weighing up without a privileged, absolute validity of a value seems to be able to cope more easily with the problem of the admissibility of preventive options for military action. Depending on the assessment, the selection of the basic values ​​and their weighting can justify different results. One could either argue that weighing up the fundamental values ​​of the international legal order leads to the conclusion that the formulation of unilateral prevention in advance is permissible due to the predominance of the self-preservation interest of the latently threatened state. Or the weighing-up pendulum takes the other direction and ultimately denies the admissibility of preventive options on the grounds that weighing up the basic values ​​leads to the result that the self-preservation interests of the state threatened with preventive measures predominate. The fact that this point of view obviously flirts with the dissuasive effect of a statement made by a legal system that is not clearly evident may be of interest from a legal-political point of view, but it contradicts the idea of ​​the rule of law , according to which the law only makes a normative individual statement on each issue.

At its core, the inadequacy of the justification approaches reflects the old suffering of positivist argumentation patterns. This model is based on inductive problem solving; H. on the idea of ​​being able to make more general statements based on individual normative statements (i.e. individual observations about statements of a legal system). The difficulties of this method are, on the one hand, of a logical nature [see induction problem] and, on the other hand, are also evident in the practical failure to offer suitable solutions to the problem, as shown above. The fact that the inductive method has been forgotten within the natural sciences as a methodology that is ultimately inadequate for problem solving does not justify that this knowledge has also been transferred to law. In contrast to a mere argument about words, the requirement of the methodology must be to provide an appropriate solution to the problem. In this respect, the attempt seems equally exciting and ambitious, contrary to the prevailing inductive dogmatics , to formulate deductively potentially refutable sentences.

literature

  • Martin Kunde: The preventive war. Historical development and current significance. Peter Lang Verlag, Frankfurt am Main 2007.
(Reviews of the book: Thomas Speckmann: "Washington is the new Sparta. Attack as the best defense? The legal scholar Martin Kunde presents a fundamental history of ideas of the preventive war", in: Süddeutsche Zeitung, October 2, 2007 (Review by Martin Kunde: Der Präventivkrieg . Historical development and current significance. Peter Lang Verlag, Frankfurt am Main 2007). Many questions - preventive war and politics )
  • Hugo Grotius: De jure belli ac pacis libri tres , Paris 1625 engl. Translation .
  • Sibylle Tönnies: Sovereignty and the prohibition of aggressive war , in: From Politics and Contemporary History (22/2005) p. 39–46 Link .
  • Deutsche Atlantische Gesellschaft eV (Ed.): In search of ethical-legal criteria for preventive military operations. Lessons from the Iraq War , Bonn 2005 Link .
  • Hannes Hofmeister: Preemptive Strikes - A new Normative Framework , in: Archiv des Völkerrechts 44 (2006) pp. 187-200.
  • Steven J. Barela: Preemptive or Preventive War: A Discussion of Legal and Moral Standards , in: Denver Journal of International Law & Policy 33 (2004/2005) pp. 31-42.
  • Mark L. Rockefeller: The "Imminent Threat" Requirement for the Use of Preemptive Military Force: Is It Time for a Non-Temporal Standard? , in: Denver Journal of International Law & Policy 33 (2004/2005) pp. 131–149.
  • Miriam Sapiro: Preempting Prevention: Lessons Learned , in: New York University Journal of International Law and Politics 37 (2005) pp. 357–371 Link .
  • Christian Stelter: Use of force under and alongside the UN Charter , Duncker and Humblot publishing house, Berlin 2007 Link - ISBN 978-3-428-12547-0 .
  • Björn Schiffbauer: Preventive Self-Defense in International Law , Duncker and Humblot Publishing House, Berlin 2012 Link - ISBN 978-3-428-13868-5 .

Individual evidence

  1. ^ "Augsburger Allgemeine" of September 12, 2005: USA are considering nuclear attacks

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