Beyond the Charter Frame: Unilateralism or Condominium?

In his January 2002 State of the Union Address, President George W. Bush reiterated the warning that the war against terrorism is only beginning and that the threat against which it is directed remains dire.That threat, he said, includes the terrorists themselves, who are widely dispersed, and states sympathetic to terrorism, particularly those disposed to acquire or further develop weapons of mass destruction. 1 The subtext of the president's address was that the United States was going to hunt down and eliminate terrorists wherever they might be found, and also prevent states deemed friendly to terrorism from enhancing their capacities with respect to weapons of mass destruction.And it was prepared to act preemptively rather than simply as a response to an actual or imminent armed attack.What are some of the concrete measures that would seem to fall within this Bush Doctrine?Rather than working through the often slow and unpredictable process of extradition, the United States might parachute troops into countries to seize suspected terrorists or might assassinate them by inserting special forces or employing air strikes.Within Iraq, it might use zones protected by air power to arm and train forces drawn from the Kurd and Shia communities.Then it might launch them, backed by U.S. firepower, against Saddam Hussein's regime in Baghdad.In the case of Iran, it might employ cruise missiles against nuclear reactors or other facilities related to the production of nuclear, chemical, or biological weapons.It might blockade the country to force agreement on international weapons inspections or to prevent importation of dual-use technologies.After the events of September 11,2001, the United Nations Security Council, anticipating the U.S. attack on Al Qaeda and the Taliban regime, affirmed the right of the United States to act forcefully in its defense. 2 Since Article 51 of the Charter recognizes an inherent right of self-defense, affirmation was unnecessary.In this unprecedented case of a large, well-financed transnational organization with demonstrably great destructive capacity and declared aggressive ends, the right can reasonably be construed to include seizure of suspected Al Qaeda members in states unable or unwilling to arrest and either try or extradite them.But it plainly does not encompass the overthrow of regimes with records of aggressive behavior.Nor does it legitimate the use of force against states deemed unfriendly in order to deny them weapons systems already deployed by other sovereign states or to enforce compliance with treaty obligations.At this point, there is simply no cosmopolitan body of respectable legal opinion that could be invoked to support so broad a conception of self-defense.It is in fact reminiscent of the notion of strategic preemption that animated German policy in the early years of the twentieth century.Its key idea is the political justification of assaulting another state so as