As speculation continues about what direction American foreign policy is going to take under President-elect Obama, it is useful to remember that his primary victory was in part due to his opposition to the war in Iraq. The long term question for American national security strategy is whether the Obama presidency will or should signal a complete repudiation of the Bush Doctrine of preemptive war?

There are least two reasons to believe that preemptive war is going to remain a part of President Obama’s foreign policy toolbox. First, the doctrine of preemptive war is already well accepted both in international law and American diplomatic history. The Caroline standards (arising from an 1837 incident between Great Britain and the United States) have established the norm that preemptive war is permitted when the "necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment of deliberation". Second, the Bush Doctrine does not describe the above norm of preemptive war, but a notion of preventive war. Thus, even if the preventive war principles in the Bush Doctrine were repudiated, preemptive war remains an accepted legal norm.

Preemptive war is undoubtedly going to remain part of any future national security strategy, but today’s strategic environment make it reasonable to anticipate a new norm of preventive war joining the well accepted Caroline standards. It is nearly impossible to conceive a situation where the United States will face a threat similar to a classic example of legitimate preemptive war (the Six Day War in 1967), because the only way to mass forces on the borders of the United States is by playing the board game Risk. The nature of today’s threats – especially terrorist organizations and weapons of mass destruction – make the Caroline standards seem woefully inadequate. A 21st century national security strategy has to adequately defend the country from enemies and threats that attack with lethality and without any warning whatsoever.

While there may be an international consensus against preventive wars like Iraq, the preventive use of force – whether it be for purposes of attacking terrorist groups or for attacking facilities meant to produce weapons of mass destruction – has not been dismissed as a legitimate option even in the circles that were most opposed to Iraq. In fact, even Michael Doyle – one of the great international law scholars of our time and assistant secretary general and special adviser to former United Nations Secretary-General Kofi Annan – has in recent years put forth new standards for permissible preventive war.

The manner in which a new era of preventive war is emerging is fraught with peril. The Bush Doctrine introduced preventive war to the foreign policy toolbox with no standards comparable to the Caroline test. Military actions by Ethiopia and Russia, saber rattling between India and Pakistan, and the ongoing saga of Iran all are discussed in terms of prevention. Although unilateral prevention is starting to become more common, only multilateral prevention is legal under the UN Charter (Article 39 of Chapter VII gives the UN Security Council the ability to authorize such preventive action). Continuing along the path of unilateral prevention threatens to upend international legal norms (e.g., the inviolability of state sovereignty) and security structures (e.g., the UN Security Council’s exclusive right to authorize preventive war), without leaving anything in place. The choice is then between a new consensus on the use of force in self-defense or international "anarchy".

The challenge for the international community – given the threats of terrorism and weapons of mass destruction – is to reconsider customary international law criteria for preemptive self-defense. While scholars like Doyle have put forth proposed norms and several commentators have called for the Security Council to establish new standards for preemptive or preventive use of force, the debate is in very early stages. Establishing new norms is going to require some level of international consensus. While the Security Council is the most appropriate body to establish such norms, it is neither presently constituted in an adequate manner to establish such norms and the states that have done the most to deviate from presently accepted standards hold veto power.

Perhaps a more immediate step forward can be taken in NATO. This alliance is not only made up of democracies, but it also includes the majority of power projecting militaries in the world, most of the states threatened by the new threats of WMDs and terrorists, and three out of the five Security Council members’ vetoes. Moreover, as a political matter, it will be far easier to establish these new norms within NATO. The leaders of the countries that pushed hardest for preventive war in Iraq – the U.S., U.K. – and the countries that resisted the most – France, Germany – have changed.

Referring this subject to NATO is not merely a matter of political expediency. Agreed upon norms within NATO will go a long way towards establishing new customary international law.* Indeed, there is precedent for this, as legal standards governing humanitarian intervention grew out of NATO’s intervention in Kosovo. If NATO powers actually limit their use of preventive self-defense to cases where a Caroline type test has been met, even paralysis at the Security Council will not prevent a new international standard for the use of preventive force from being established. Countries would then be able to wield an effective right of self-defense against terrorists and weapons of mass destruction without the ability to invoke preventive self-defense in order to justify offensive actions undertaken for other purposes.

With President-elect Obama stressing the value of America’s European allies and with President Sarkozy bringing France back into NATO’s unified command, a renewed Western alliance can and should be at the center of a new international security structure that promotes stability, and this stability begins with once again properly defining restrictions on the use of force. •

* It is important to note that the Caroline test did not emerge from an international legal institution, but from an incident between two nations.