India, Pakistan, and the “Preemption Doctrine”

Among the many arguments used by skeptics of the war in Iraq in the months leading up to the invasion was the idea that Bush’s “preemption doctrine” would set a dangerous world precedent.

As the argument goes, civilized countries don’t go around launching unprovoked attacks against other nations. If war is reserved for retaliatory strikes and self defense against an aggressor, then it will be easier to maintain peace and world order. If the United States launches “preemptive” strikes against countries that may or may not be a threat at some point in the future, then we’d be setting a poor example for other countries that may consider launching preemptive strikes against potential enemies of their own.

Canadian Prime Minister Jean Chretien, for example, made the argument as a reason to withhold support for U.S. efforts. Closer to home, Howard Dean used it as one of the primary reasons to reject the administration’s approach to the war. Dean argued that if other countries embraced Bush’s preemption doctrine, we’d be opening the door to a variety of new international conflicts, including the possibility of China invading Taiwan.

Even among critics of the Bush administration, there was some disagreement about the legitimacy of this point. Eugene Volokh, a constitutional law professor at UCLA and a prolific blogger, said the concern of setting a dangerous precedent was dubiously based on a “slippery slope argument” that ultimately doesn’t “hold water.”

“[R]egardless of the arena, precedents chiefly influence those who care about equality and consistency and those willing to defer to the precedent-setter’s judgment,” Volokh argued. “The Chinese government, to take Howard Dean’s example, fits neither category. When China is deciding whether or not to invade Taiwan, it will focus on its own interests, not on being consistent with what other governments have done. And Chinese officials are unlikely to be influenced by America’s judgment about when a war is just: They simply don’t respect our views the same way that we might respect our own Supreme Court or Congress.”

It’s not a bad argument, and Volokh may be right about an over-emphasis on “precedence setting,” but I think the professor is missing the point of the concern.

The Bush administration decided to set a new standard in world affairs. Whereas we used to maintain a “never fire unless fired upon” approach, the administration was changing the rules. Now, Bush has said it’s all right for a country — as long as the country is the United States — to invade another country if the invader perceives its adversary as a potential threat.

Consider the China/Taiwan scenario. Volokh is right that China doesn’t care much about “precedent,” so the argument may not be persuasive. But China does care about working within an international framework, particularly when it comes to issues such as trade.

Before preemption, the U.S. was always in a position to tell China, and everyone else for that matter, that the rule of international law prohibits countries from running around launching unprovoked attacks. We had the moral authority to make the argument. The more countries worked outside the United Nations to launch invasions of potential enemies, we argued, the more international order breaks down.

Now, of course, having carved out an exemption for ourselves from this line of reasoning, we can’t credibly make that argument anymore. When the U.S. works to persuade others that unprovoked attacks undermine international stability, our arguments now lack a principled weight.

And when this comes to India and Pakistan, I really wish we could get that moral authority back.

As far as India, a nuclear power, is concerned, Pakistan is a genuine, immediate threat. Pakistan, in addition to having a nuclear arsenal of its own, is currently backing terrorism against Indians in Kashmir. If the U.S. can attack Iraq without provocation, can’t India attack Pakistan with provocation?

That’s what India is wondering right now.

In fact, Yaswant Sinha, India’s foreign affairs minister, wondered out loud about this last week when he told an Indian journalist that India has a “better case” for a preemptive attack against Pakistan than America did against Iraq.

Sinha wasn’t the only one. Indian Defense Minister George Fernandes not only endorsed Sinha’s statement, he also ratcheted things up a little more. “There are enough reasons to launch such strikes against Pakistan, but I cannot make public statements on whatever action that may be taken,” Fernandes said on Friday. (Thanks to Dr. Who for this link)

Pakistan, naturally, didn’t like the sound of that. Its government said India is making a “major miscalculation” that could lead to “grave consequences.” As a direct result, both countries have taken steps to build up their defense systems in recent weeks.

Looking back on Professor Volokh’s argument, it shouldn’t matter to India what the U.S. does, since it will make the decision on whether to invade Pakistan based on “its own interests.” Perhaps, but India seems to care very much about what the U.S. has done and Indian officials apparently believe our actions in Iraq lend credibility to their threats in Pakistan.

Secretary of State Colin Powell is doing what he can to step in and defuse the controversy, telling Pakistani journalists on Thursday that the U.S. will “stay engaged” and asserting that there’s no need “for any military action of any kind.”

I hope Powell’s involvement with the pending crisis will be productive, but I can’t help but wonder if the administration’s preemption policy doesn’t undermine his standing at the negotiating table.