The Use of Force After the 'War on Terror': A Call for an Obama Doctrine Commentary
The Use of Force After the 'War on Terror': A Call for an Obama Doctrine
Edited by: Jeremiah Lee

JURIST Guest Columnist Christian Henderson of Oxford Brookes University (UK) says that although President Obama has made reforms in a number of areas since taking office last November, he has yet to distinguish his administration's policies on the international use of force from those of the former administration….


There was little doubt that when President Obama took over in the White House he was going to offer some stark contrasts to his predecessor. These have been visible both in style and in substance.

Firstly, there has been a widely recognized dramatic shift towards multilateralism by virtue of many diplomatic initiatives, including: a widely hailed speech in Egypt; a willingness to negotiate with Iran (despite the criticisms of many Republicans); a willingness to be tough with Israel; and the opening of certain barriers with Cuba. Could one imagine the previous incumbent being honoured with the Nobel Peace Prize for “his extraordinary efforts to strengthen international diplomacy and co-operation between peoples?” The now infamous “you are either with us or you are with the terrorists” proposition would suggest not.

Furthermore, President Obama has commendably identified different priorities and policy initiatives than his predecessor. These can be seen in the closure of Guantanamo Bay; its critical position on the use of torture; concerns regarding climate change; the reversal of the missile defence programme; and negotiations on nuclear disarmament.

However, a troubling aspect of Obama’s first year in the Oval Office has been the confusion generated over his position on the permissible limits on the use of force. Indeed, in this respect it must be questioned whether things are really so very different than they were under his predecessor.

The simplest way to discern a particular administration’s position on the use of force is by taking a look at its National Security Strategy. This document outlines the major national security concerns perceived by the administration and how it plans to deal with them. The 1986 Goldwater-Nichols Act requires the publication of this document by June 15 of a new administration, a deadline which President Obama has failed to meet. However, he is not alone here; no administration has ever met this deadline.

Consequently, and given the fact that he is not expected to produce one this year, we are left to analyze other sources to try and garner the position of the President on this issue.

Perhaps the most direct indication we have on Obama’s policy regarding the use of force is his response to a survey conducted by the American Society of International Law in which several questions were posed to the Presidential candidates in the run-up to the elections in 2008. Rather on point, one of the questions posed was ‘What views do you have regarding any legal constraints on US use of force?’

In answering this question much of what Barack Obama said may equally as well have come from the mouth of George W. Bush:

‘The U.S. has today and has always had the right to take unilateral military action, including the pre-emptive use of force, to eliminate imminent threats to our country and security. No nation or organization has a veto over our right of self-defense – and none ever will. In fact, Article 51 of the U.N. Charter recognizes this right of self-defense for every nation.’

Furthermore, whilst Obama went on to recall “the so-called Bush doctrine” and noted that “[t]he preventive use of force – in anticipation of potential threats that may not be imminent – is a different matter,” he also, and rather confusingly, was clear that “[s]ometimes, the preventive use of force may be necessary.” This was hardly a resounding rejection of the Bush doctrine.

Given a somewhat veiled criticism of preventive force but then making clear that it would be resorted to when “necessary,” it could be questioned whether this was the beginnings of an Obama doctrine of “necessary force?”

To date, there is nothing to suggest that Obama has shifted from this position since taking up residence in the White House. Indeed, whilst not offering anything more on his position, the President chose to classify the war in Afghanistan as a “war of necessity.” Whilst this was arguably not intended as a legal characterization, it does open questions as to where this fits within the international legal regulation of the use of force, and to whether President Obama has given this any thought.

Furthermore, it remains to be seen whether force will be “necessary” if, for example, Iran continues to antagonize and provide confusion as to the ambitions of its nuclear program. And if the US does decide that force is “necessary,” will it undertake such action with the other states that have shown concern over the issue, or will it be restrained if these other countries disagree with it? Whilst his administration’s overtures to multilateralism in other areas have been commendable, Obama was clear in the ASIL survey that “when we do use force in situations other than self-defense, we should make every effort to garner the clear support and participation of others.” (emphasis added) Clearly, he has not ruled out going it alone.

Additionally, the experience of Iraq has clearly not deterred unilateral assessments of evidence. “The experience of Iraq underscores that often perceived threats are not as real as they may seem, and our intelligence may be imperfect. But, when our intelligence is good and defensible we should not rule out the use of force.”

Given these mixed signals and the confusion they’ve provoked, a call is made to President Obama to develop a clear and principled approach to the use of force taking full consideration of the limits imposed by international law. This should come as soon as possible, preferably in the form of the National Security Strategy. Indeed, if what has been set out above are the early signs of an Obama doctrine emerging, more needs to be provided to set out the boundaries of this as, as it stands, it is no more acceptable than the Bush doctrine of pre-emption.

Under Bush, for better or for worse, we knew where he stood. Obama must now do the same.

Dr. Christian Henderson is a Lecturer in Law within the Department of Law at Oxford Brookes University, United Kingdom. His book, The Persistent Advocate and the Use of Force: The Impact of the United States Upon the Jus ad Bellum in the Post-Cold War Era, will be published by Ashgate in 2010.
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