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Pre-emption and international law. The legal basis.

 
 
Reply Mon 23 Feb, 2004 02:13 am
I'm pretty tired of people making proclamations about the legal basis of pre-emption simply on the basis that it sounds good to them.

It's somewhat understandable in that intra-national pre-emption would be something that is codified in international law.

And international law is certainly not as well codified as it should be.

where it is codified it is open to subjective interpretation.

There's not a whole lot on pre-emption on the books but if you've got something share it here.

Here is a brief summary.

1) "Kill them first" is old as the hills. So was "rape them and make them slaves".

Civilization has made both a little more rare. "Kill them first" is less common and "anticipatory defense" is more strictly defined.

2) What's commonly pointed to as the origin of the modern precedent to "pre-emption" is the British attack in 1837 on the US Caroline.

This set off what is probably the precedential debate on pre-emption. more on this below.

3) The epitomal example of "pre-emption" for both sides of the coin was Israel's anticipatory defense in 1967.

4) The UN charter does not specify pre-emption at all. So you'll really have to consider segments in seperate places.

You'll find a clear condemnation of the use of force in dispute resolution at all. You'll also find language requiring an imminent threat for said use.

The part of the charter that most supports pre-emption is this:

"Nothing in the present charter shall impair the inherent right of individual or collective self defence if an armed attack occurs against a member of the United Nations."

So most interpretations of pre-emption in the charter go like this:

"Pre-emption is permissible to defend from a threat."

Reasonable people differ on what exactly constitutes a threat, of course.

The language in the charter tends toward explicit caution against reckless pre-emption or use of force. It's closer to the "mushroom cloud" than it is to "specter of a threat".

So the UN charter is strict on pre-emption. This of course is one interpretation and reasonable people can disagree with interpretation as well.

5) It's hard to define what international codifications are authorative. In reality it all depends on how much power is backing which code or interpretation. But the tendency in the haphazard codifications is toward pre-emption being an allowed method of self-defense. Also typical is the requirement that the threat is "imminent".

Again, reasonable people can disagree on the threat of a threat, but there is nearly universal agreement on the codification of caution. Pre-emption can be a pretext and almost all codifications try to counter that.


-----------

The Caroline.

Secretary of State Daniel Webster justified anticipatory defense in exchanges between British Foreign Minister Lord Ashburton and himself.

These exchanges became important in the shaping of the law and debate on pre-emption. Verily, there is hardly ever a discussion about pre-emption that does not quote them.

Ultimately both agreed on the validity of the method and only disagreed on the precise case being discussed. Webster said what might be the most important comment ever said about pre-emption at all when he said "the extent of this right is a question to be judged by the circumstances of each particular case." Ashburton punctuated the inherent complexity of this method by retorting, "when begins your right to self-defend."

So in short, History is replete with "kill first". The modern discussions on anticipatory defense are nearly all discussions on appropriatness in a case with the ideal being sanctioned.

In short, most people agree to it's validity in theory but in practice differ on the opinion of its necessity.

A prevailing theme in the Webster/Ashburton discussions is the necessity of necessity. Here's a haphazard string of quotes from them I found after a search:

"most urgent and extreme necessity," "pressing or overruling necessity," "strong, overpowering necessity," "clear and absolute necessity," "and " a necessity, present and inevitable, for attacking."

-------------------------

The UN

The UN has in its charter the clear preference for alternative methods of dispute resolution. but it clearly gives the right to self defense. And most understand this as including anticipatory self defense.

Again, the inherent complexity is in disallowing people to use it as a pretext.

-------------------------

Neither side can try to justify their positions through law. Law has to leave this on a case by case basis because of inherent complexities.

Pre-emption is legal. But there is criteria without which it is merely agresssion, which is illegal.

In modern law the criteria is necessity. It must be defensive in nature and bourne of necessity. *

This is, my interpretation. Mileage may vary.

The landmark cases of pre-emption in modern times are (as I see them, with summary as I see it):

1837 British vs. Caroline - Legitimate use of anticipatory delf defense with the greatest introspection to it's day.
1962 Cuban Missle Crisis - The most understandable breach of international law that I am aware of. Fueled by paranoia that I consider understandable the US created a naval blockade which is a breach of sovereignty and an act of war.

It was a response to what was percieved as an imminent threat, but which was legal and which the US itself had done many times (the US had had nukes as close to the Russians (Turkey) as they did to the US).

The resolution of this was what I characterize as luck and a Russian willingness to accept a really poor face-saving offer to reduce the hostilities.

1967 Israel vs. Arabs - The epitome of pre-emption. More controversial because of its scope and its participants.
1981 Israel vs. Iraq (Osarik reactor) - Almost universally condemned as lacking necessity. The act was not questioned nearly as much as the need and timing.

And of course, Bush Vs. Saddam. Which is not worth rehashing here.
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dlowan
 
  1  
Reply Mon 23 Feb, 2004 02:30 am
That is interesting. I always just thought it was a pure "I'm bigger - and you can't stop me."
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Craven de Kere
 
  1  
Reply Mon 23 Feb, 2004 02:45 am
Well, ultimately international law tends to come down to that. That's why it's so haphazard.
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dlowan
 
  1  
Reply Mon 23 Feb, 2004 03:06 am
Yeah - with any reasonable "normal meaning' reading of the imminent threat thing (we are supposed to use normal meaning of words as a guide in legal interpretation in English and Oz law, at least) I think you would have to consider the invasion laughably unwarranted.

But - who's gonna come and arrest the US and GB?

I guess they could get Howard, if they wanted - but mainly they think we're Austria anyway....except Al Quaeda and such...
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Craven de Kere
 
  1  
Reply Mon 23 Feb, 2004 03:25 am
It'd be hard to declare it illegal in the first place. The harshest criteria to meet would be the UN charter.

Kofi already said that the war went against the principles of the Charter but any attempt to formally declare it a breach would just be vetoed by the US.

So while the interpretation of the law is easy, even the agreement on a breach depends on how much power is behind the interpretation.

Anywho, I don't wanna do Iraq here. I'm hoping for some additional legal info and interpretation.
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dlowan
 
  1  
Reply Mon 23 Feb, 2004 04:06 am
Don't know as this fits the bill, but it is interesting historically - and in relation to the difficulties of getting UN Chapter VII resolutions!

This is from an essay on pre-emption as Bush is wanting to use it, by a Yale Law professor - doubtless you saw it, Craven:

"Chapter VII actions have been very limited over the past fifty year existence of the UN, which makes you somewhat question the adequacy and utility of this procedure. As somewhat of a related aside, one of the only other Chapter VII authorisations came in the 1950s during the early stages of the Cold War. As you are probably aware, when the UN was established there were 5 permanent member seats in the Security Council, one each for the founding members (i.e. the victors of WWII) including the United Kingdom, United States, France, Soviet Union, and China. The importance of these seats is the veto power, which essentially allows any single permenant member to bloke the passage of any Security Council Resolution. When the Cold War began to break out and the so-called ?Domino Theory? of communism began to unfold in Southeast Asia when the Korean conflict broke out, a development that threatened to destablize the region and knock over another domino in the line. The US and Britain brought forth the issue to the Security Council, but with the Soviet Union veto, the prospects of passing a Chapter VII resolution were slim to none. During the debate, the US and Britain introduced evidence implicating the Soviet Union as acting in collusion with the communists in Korea, infuriating the Soviets who stormed out of the debate in protest. Thorough crafty procedural manoeuvring, the Council voted without the Soviets and passed the resolution authorising Chapter VII use of force, which launched the beginning of allied intervention in the Korean War. The point I am trying to make here, and will elaborate on later, is the inherent problems with the monopolisation of the use of force within the Security Council and the problems that go with trying to get what is know 15 members, 5 with veto powers, to agree on military action."
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joefromchicago
 
  1  
Reply Mon 23 Feb, 2004 09:47 am
Craven: I don't time this morning to get into this, but I'm curious about the sources of your information. Surely you must have gotten much of that from elsewhere: you didn't really write "verily," did you?

Anyway, I dimly recall reading about the Caroline case, but I don't remember anything about "anticipatory self-defense." I'll try to track down some more information and return to this thread later.
0 Replies
 
OCCOM BILL
 
  1  
Reply Mon 23 Feb, 2004 10:15 am
"I'd prefer that we don't wait until the smoking gun is a mushroom cloud." (I'm not trying to start anything... just bookmarking :wink: )
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dlowan
 
  1  
Reply Mon 23 Feb, 2004 11:53 am
How about Nicaragua vs US in the International Court?

Nicaragua took the US there - the US made some arguments re the contras etc, based on "self-defence" - got the hissies and stormed out.

I assume self-defence in such a case falls close to preemption? I havena finished it:

Nicaragua won - but 'twas a hollow victory indeed.

http://www.lawofwar.org/nicaraugua_v_us.htm
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dlowan
 
  1  
Reply Mon 23 Feb, 2004 11:58 am
Similar - but includes a bit of discussion:

http://www.gwu.edu/~jaysmith/nicus3.html
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dlowan
 
  1  
Reply Mon 23 Feb, 2004 12:09 pm
A quick little discussion from Council on Foreign Relations Round Table - citing some other examples as well as the ones Craven gives:

http://www.cfr.org/publication.php?id=5472
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dlowan
 
  1  
Reply Mon 23 Feb, 2004 12:16 pm
And a page on the International Court of Justice for anyone who, like me, was unsure of its exact history, role etc...

http://en.wikipedia.org/wiki/International_Court_of_Justice
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joefromchicago
 
  1  
Reply Mon 23 Feb, 2004 12:36 pm
For information on the Caroline affair: Would Daniel Webster Approve of an Attack on Iraq?
0 Replies
 
Craven de Kere
 
  1  
Reply Mon 23 Feb, 2004 12:55 pm
joefromchicago wrote:
Craven: I don't time this morning to get into this, but I'm curious about the sources of your information. Surely you must have gotten much of that from elsewhere: you didn't really write "verily," did you?


Yes, I wrote "verily". I grew up reading the KJV. Don't go blaming someone else for that.

But my sources are haphazard.

The iraq war is obvious, that came from everywhere.

Cuba and Osarik are just famous cases that we all know about.

1967 was the case that put pre-emption on the map for me. As a child I read about it extensively and the group I was in published a cartoon about "pre-emption of pre-emption of pre-emption" or somesuch.

The Caroline is in every single essay I have read on pre-emption. I was not quoting directly from them but just recalling the little that I recited from memory. But I really doubt you'll find any discussion about pre-emption without the Caroline.

Lastly I found some quotes that I posted from a quick google search for the men's names.

But I have no ace source to share. I really don't think there is much authority on these issues and just a lot of the speculation I've read over the last year.
0 Replies
 
dlowan
 
  1  
Reply Mon 23 Feb, 2004 02:19 pm
Craven - I am not quite sure what you are wanting here - I now have a huge amount of reading to do, because it interests me too - but I assume you have read most of it?

I have added Nicaragua - which is fascinating because it went to a court, I think.

One article I posted mentioned more examples - here they are:

"Discussants cited a number of historical cases for consideration, including the British attack on the USS Caroline (1837), the Cuban Missile Crisis (1962), the Six-Day War (1967), the Israeli bombardment of the Iraqi nuclear reactor at Osirak (1982), the cruise missile strikes on Sudan and Afghanistan (1998), Kosovo (1999), and Operation Enduring Freedom in Afghanistan (2001). Collectively, these cases helped illuminate distinctions between policy goals and legal standards and between self-defense against imminent threats and the protection of public goods."

It may be worth quoting that little essay's last two parts:

"What We Don't Know:

There remains confusion over the legitimacy of preemptive acts. While lawyers tend to seek ex post fact-based findings of imminence and exhaustion of peaceful alternatives, policy makers operate under imperfect information and compressed decision-making cycles. Some concluded that this gap is inevitable. International law has yet to develop a "precise set of guidelines" or any sort of "policy checklist," with dim prospects of doing so successfully in the future. All agreed that states can and, in specific circumstances, must take preemptive action to counter threats out of self-defense, while recognizing that invoking a principle of "self defense" too often erodes confidence and proves counter productive. Many voiced concerns that while the United States will invoke the principle of self-defense judiciously, the elevation of preemption to the doctrinal level risked its adoption and abuse by terrorists and tyrants with more nefarious aims.

No clear consensus emerged for strategic desirability or legal feasibility of the potential to use preemptive force to protect public goods or prevent humanitarian disasters. Most concluded that when contemplating preemptive action other than for reasons of self-defense, legitimacy required multilateral action, preferably, though not necessarily, with explicit authorization from the UN Security Council. For example, one participant cited Kofi Annan's retrospective lamentation that the genocide in Rwanda had not been forestalled, even though the capacity to do so arguably existed. Still, there remained widespread skepticism towards the UN Security Council's ability to dispense legitimacy for public goods preemption either effectively or efficiently. In the opinion of many participants, the ability to justify preemptive action, either before or after, largely reflected which lawyers were present and which laws (if any) were consulted.

In addition to discussing criteria for legitimate preemption, participants raised a number of questions about the operational ramifications, including timing, targets, and degree of force used. There emerged a strong consensus that the global war on terrorism poses a special case. Because terrorists pose an ever-present threat of striking innocents, they perpetually satisfy the criteria of imminence. Moreover, as non-state actors, they divorce themselves from the obligations of international law, and in the process forfeit any concomitant protections.

Diverging views emerged on how to combat the WMD threat posed by Iraq. Conceptually, some questioned whether the current situation adequately satisfies the preemptive criterion of imminence, suggesting that the military options most prominently offered represent preventive rather than preemptive force. Others countered that the magnitude of the risk posed by the possession of WMD coupled with a well-established record of aggression collectively posed an imminent threat. On a pragmatic basis, reference was made to the recent assessment by the Director of Central Intelligence that a declaratory policy of preemption and the mobilizations that would entail would likely increase the risk of Iraqi WMD use, posing a self-fulfilling prophecy. On a more strategic level, some found it troublesome that a shift towards preemption represented a dangerously destabilizing return to a "first strike" dependency characteristic of the most perilous periods of the Cold War.

The debate over how to handle Iraq led to deliberative comparison of preemption with strategic alternatives such as deterrence and containment. While there was recognition that preemption should be considered only within the broader application of statecraft, including diplomacy, confidence and security-building measures, and clear signaling of intentions, many held that the possession of WMD in the risky hands of despots and aggressive tyrants both increased threats to U.S. security and reduced the time and strategic "room" to avoid the threats through peaceful means. In the same vein, some warned of the "enormous" consequences of inaction, stressing that the duty to protect citizens and national interests inevitably requires states to manage risks engendered by their own defense policies and actions. Still, others remained wary of the potential for U.S.-led preemptive actions to touch off aggressive policies and actions from other states who might no longer feel constrained by existing normative constraints.

This debate led back to the pros and cons of a declaratory policy of preemption as enunciated in the NSS. Some suggested that the inclusion of a doctrine of preemption within the NSS represented an "intentionally blunt instrument," brandished for calculated effect. Some expressed skepticism over the depth or breadth of the effect of the NSS, suggesting that the American public took little note of it and the vociferous reaction to it amongst friends and foes alike would soon recede. Furthermore, it was pointed out that the NSS stipulates a preference for collective action and recognizes the risks of abuse for the doctrine of preemption, acknowledging that too loose a definition of "anticipatory self-defense" risks encouraging and justifying widespread aggression. Nonetheless, some voiced opinions that the NSS is strategically imprudent, concluding that the formulation and enunciation of a doctrine of preemption is provocative, exacerbates the "security dilemma," reduces the ability to de-escalate crises, and suggests that the use of force is a first, rather than a last, resort.

Some adhering to this perspective suggested that U.S. national interests are better served by tailoring policies on an ad hoc basis to reflect the exigencies of a variety of threats, invoking recent situations in South Asia and the Balkans to illustrate the difficulties of forging rules which apply only in cases beneficial to U.S. interests. Participants discussed the Clinton Administration's resistance to a "doctrine for humanitarian intervention" upon concluding that any set of principles that would have provided adequate legitimacy for NATO actions in Kosovo would have also unacceptably raised the risk of justifying aggression. It was suggested that while in the abstract it is difficult to draw clear and universally applicable delineations between preemptive self-defense and aggression, the facts of any individual case can be selectively employed to provide legitimacy.

What Are the Next Steps?

Although there was no consensus about next steps, two main legal approaches emerged: (1) take existing law, pursue a comprehensive threat assessment, and modify international law accordingly; or, (2) outline desired strategic outcomes, devise policies for achieving them, and seek to devise and/or modify rules to accommodate the preferred policies. Some declared that the UN Charter already provides ample basis for justifiable preemption, concluding that our security and legal concerns require a correct interpretation of the UN Charter rather than new law, reaffirming that the formation of law is necessarily evolutionary.

The participants agreed that the only real consensus was that international law develops over time as a result of state practice."

But that really just repeats what you said. You want "additional legal info and interpretation" - not sure if that means you wnt lawyers' comments, or whether bits and pieces of discussion that I am reading will fit the bill?
0 Replies
 
Craven de Kere
 
  1  
Reply Mon 23 Feb, 2004 02:20 pm
dlowan wrote:
Craven - I am not quite sure what you are wanting here - I now have a huge amount of reading to do, because it interests me too - but I assume you have read most of it?


Never hurts to post it. I've read everything I could find on the net about it. But I'm sure I missed some things.
0 Replies
 
dlowan
 
  1  
Reply Mon 23 Feb, 2004 02:29 pm
Actually, Cuba is extremely fascinating - (and not just cos it was so scary - I was just a little kid, but I remember being absolutely terrified, and, convinced as I was at the time that communism was some sort of satanic horror, I made an absolute hero out of Kennedy - whom I already liked because of the nuclear proliferation treaty he had made/was attempting to make and because I saw him as committed to progress on Civil Rights - thus becoming interested in politics big-time) - because it was played out between two sort-of-equals and involved so much psychology, as well as power plays and the legal side, I think. Eg, one school of thought holds that Kruschev had decided that Kennedy was a weak dilettante, after their meetings, and believed he could push it - as the US had already, as you say, pushed it in Turkey.
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dlowan
 
  1  
Reply Tue 24 Feb, 2004 06:29 am
This is a series of snippets from a left-leaning site - but raises some interesting points - eg that Japan defended Pearl Harbour as a preemptive strike in self defence and that, at Nuremberg, there was an attempt by the Nazi defendants to view German invasions as preemptive self-defence:

It is long!

stopsleeping
Preemption
Friday, October 4, 2002
Last modified: Tue Nov 18 10:26:39 CST 2003

All of us have heard this term 'preventive war' since the earliest days of Hitler. I recall that is about the first time I heard it. In this day and time...I don't believe there is such a thing; and, frankly, I wouldn't even listen to anyone seriously that came in and talked about such a thing.

President Dwight Eisenhower, 1953, upon being presented with plans to wage preventive war to disarm Stalin's Soviet Union

Our position is that whatever grievances a nation may have, however objectionable it finds the status quo, aggressive warfare is an illegal means for settling those grievances or for altering those conditions.

Supreme Court Justice Robert Jackson, the American prosecutor at the Nuremberg trials, in his opening statement to the tribunal

And what an immense mass of evil must result, and indeed does result, from allowing men to assume the right of anticipating what may happen.

Leo Tolstoy, The Kingdom of God is Within You

The president has adopted a policy of "anticipatory self-defense" that is alarmingly similar to the policy that imperial Japan employed at Pearl Harbor on a date which, as an earlier American president said it would, lives in infamy.

Franklin D. Roosevelt was right, but today it is we Americans who live in infamy.

Arthur Schlesinger Jr.

Self-defense is an inherent right of states that is often used to justify armed attacks. As Francis A. Boyle has pointed out in reference to the Bush administration's "preemption doctrine", preemptive self-defense was the argument advanced by the defense lawyers for the Nazis at the Nuremburg tribunals to justify their wars of aggression. This argument was rejected, and the war criminals were sentenced to death by hanging, life imprisonment, and some lesser terms. The indictments were for conspiracy to commit crimes against peace; planning, initiation, and waging of wars of aggression; war crimes; and crimes against humanity.

David Krieger and Richard Falk, Professor Emeritus of International Law at Princeton University, wrote the following in a recent article about a war against Iraq:
From these perspectives, under present conditions, it is clear that if the United States goes ahead and wages war against Iraq it will be guilty of what international lawyers call aggressive war, which was one of the principal charges leveled against surviving Axis leaders at the Nuremberg and Tokyo war crimes tribunals after World War II.

In the 1986 Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), the United States attempted to use the argument of collective self-defense to justify its actions against Nicaragua. In paragraph 2 of the operative parts of the judgement in this case, the International Court of Justice rejected the argument of collective self-defense advanced by the United States:

THE COURT

[...]

(2) By twelve votes to three,

Rejects the justification of collective self-defence maintained by the United States of America in connection with the military and paramilitary activities in and against Nicaragua the subject of this case;

IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrière; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;

AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.

The Judgement of the Nuremberg Tribunal asserted that "to initiate a war of aggression [...] is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole." Some international lawyers have publicly stated that the Bush administration's planned war on Iraq would be a war of aggression. At the same time, the Bush administration has worked to sabotage the formation of the International Criminal Court, including the act of "unsigning" President Clinton's signature from the Rome Statute, which entered into force on 1 July 2002.

On June 16, 1998, Benjamin B. Ferencz -- a former prosecutor at the Nuremberg War Crimes Trials -- addressed the United Nations Conference on the Establishment of an International Criminal Court:

Over fifty years ago, I stood in a courtroom at Nuremberg and accused 22 highranking German Storm Troopers of deliberately murdering more than a million men, women and children. The defenseless victims were slaughtered because they did not share the race or creed of their executioners. I asked the tribunal to affirm the legal right of every human being to live in peace and dignity. It was a plea of humanity to law - a plea that needs repeating.

Unanimous affirmation of the Nuremberg principles by the United Nations in 1947 implied a promise that "never again" would aggression, war crimes and crimes against humanity go unpunished. War crimes trials after World W II came to grips with the past. We have yet to come to grips with the future.

I have come to Rome to plead for a more humane world order.

Nuremberg was the beginning of a process. Failure to build on its precedents has cost the world dearly.

[...]

Ever since the judgment at Nuremberg, it has been undeniable that aggressive war is not a national right but an international crime. War is the soil from which the worst human rights violations invariably grow. The UN Charter prescribes that only the Security Council can determine when aggression by a state has occurred but it makes no provision for criminal trials. No criminal statute can expand or diminish the Council's vested power. Only an independent court can decide justly whether any individual is innocent or guilty. Excluding aggression from international judicial scrutiny is to grant immunity to those responsible for "the supreme international crime" - omission encourages war rather than peace.

[...]

Hope is the engine that drives human endeavor. It generates the energy needed to achieve the difficult goals that lie ahead. Never lose faith that the dreams of today for a more lawful world can become the reality of tomorrow. Never stop trying to make this a more. humane universe. If we care enough and dare enough, an international criminal court - the missing link in the world legal order - is within our grasp. The place to act is here and the time to act is now!

Steven R. Ratner defines aggression as follows: "Aggression in international law is defined as the use of force by one State against another, not justified by self-defense or other legally recognized exceptions."

Black's Law Dictionary, seventh edition, defines aggression as follows:

Int'l law. The use of armed force by a country against the sovereignty, territorial integrity, or political independence of another country, or in a manner inconsistent with the Charter of the United Nations. ? Acts falling within this definition include declaring war against, invading, attacking, blockading, or landing troops on another country's territory.

According to Jordan J. Paust, Law Foundation Professor at the University of Houston Law Center, "Preemptive Self-Defense is Widely Condemned":

Predominant trends in decision demonstrate widespread expectations and intense demands that the use of armed force merely for preemptive or retaliatory purposes is inconsistent with the purposes of the United Nations Charter and is proscribed under Article 2 (4) of the Charter.1

1 See, e.g., Ian Brownlie, International Law at the Fiftieth Anniversary of the United Nations Charter, 255 REC. DES COURS 203-04 (1995); Michael Byers, Terrorism, The Use of Force and International Law After 11 September, 51 INT?L & COMP. L.Q. 401, 401 & n.1, quoting U.N. S.C. Res. 188 (9 Apr. 1964), U.N. Doc. S/5650 ("The Security Council... [c]ondemns reprisals as incompatible with the purposes and principles of the United Nations."), 410 ("Until 11 September, any right to pre-emptive action was widely contested...firmly rejected") (2020); Jonathan I. Charney, The Use of Force Against Terrorism and International Law, 95 AM. J. INT?L L. 835, 835 (2001); Tom J. Farer, Beyond the Charter Frame: Unilateralism or Condominium?, 96 AM. J. INT?L L. 359, 360 (2002); Sean D. Murphy, Terrorism and the Concept of "Armed Attack" in Article 51 of the U.N. Charter, 43 HARV. INT?L L.J. 41, 42 (2002); Jordan J. Paust, Responding Lawfully to International Terrorism: The Use of Force Abroad, 8 WHITTIER L. REV. 711, 713, 717-19 & n.21, 723 (1986); Sreenivasa Rao Pemmaraju, International Organizations and Use of Force, in 2 LIBER AMICORUM JUDGE SHIGERU ODA 1575, 1578-79 & n.10 (Nisuke Ando, Edward McWhinney, Rudiger Wolfrum eds. 2002) (anticipatory self-defense is impermissible); Gregory M. Travalio, Terrorism, International Law, and the Use of Military Force, 18 WIS. INT?L L.J. 145, 157 (2000) (Israeli retaliatory raids have been constantly criticized by the U.N. Security Council or the General Assembly); U.N. S.C. Res. 573 (4 Oct. 1985) (condemnation of Israeli reprisal against the PLO Headquarters in Tunis, Tunisia as an "act of armed aggression perpetrated by Israel against Tunisian territory in flagrant violation of the Charter of the United Nations, international law and norms of conduct"); Pemmaraju, supra note 1, at 1578-19 & n.10 (anticipatory self-defense is impermissible); but see W. Michael Reisman, International Legal Responses to Terrorism, 22 HOUS. J. INT?L L. 3, 18-19 (1999). The United States abstained with respect to U.N. Security Council Resolution 573 in 1985, noting the "escalating force and counter-force," "the rising spiral of violence" and Israel?s "responses to [prior] terrorist attacks," but stated that the U.S. strongly supports "the principle that a state subjected to continuing terrorist attacks may respond with appropriate use of force to defend against further attacks" as "an aspect of the inherent right of self-defense recognized in the United Nations Charter." See Statement of Ambassador Vernon A. Walters, reproduced in Reprisals, 80 AM. J. INT?L L. 165, 166-67 (1986).

International law professor Francis A. Boyle wrote the following in the introduction to his book The Criminality of Nuclear Deterrence:

Given his "priors", the letter by Negroponte to the Security Council was not surprising. It basically said that the United States reserved its right to use force in self-defense against any state that the Bush Jr. administration felt the need to victimize in order to fight their holy war against international terrorism as determined by themselves. Soon thereafter a reporter from the San Francisco Chronicle asked me if there was any precedent for the sweeping position being asserted by Negroponte that the United States is reserving the right to go to war in self-defense against 30 to 60 other states as determined solely by the United States. I responded that there is indeed one very unfortunate precedent, recorded in the Nuremberg Judgment of 1946.

It was not surprising that this mass murderer Negroponte was making an argument similar to that put forth in defense of the Nazi war criminals before the Nuremberg Tribunal with respect to the non-applicability of the Kellogg-Briand Pact of 1928. This "Paris Peace Pact" had formally renounced war as an instrument of national policy. Article 1 provided: "The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another." However, when signing the pact, Germany entered a reservation to the effect that it reserved the right to go to war in self-defense as determined by itself.

So when in 1945 the Nazi war criminals were prosecuted for crimes against peace on the basis of the Kellogg-Briand Pact, they basically argued that the Second World War was a war of self-defense as determined by the Nazi government, and therefore that the Nuremberg Tribunal had no competence to determine otherwise because of Germany's self-judging reservation. Needless to say, the Tribunal summarily rejected this preposterous argument and later convicted and sentenced to death several Nazi war criminals for the commission of crimes against peace, among other international crimes.
Preemption in the news
Arthur Schlesinger: Today, It is We Americans Who Live in Infamy
India Mulls 'Pre-Emptive' Pakistan Strike, Cites U.S. Iraq War Precedent (Agence France Presse, 11 April 2003)
Hasan Suroor: Back to the Empire in new clothes? (The Hindu, 25 April 2002)
A new imperialism cooked up over a Texan barbecue: Sovereignty is being redefined, so why has nobody noticed? (The Guardian, 2 April 2002)
Related items
Prof. Bruce Ackerman: But What's the Legal Case for Preemption? (Yale Law School commentary, August 20, 2002)
Doug Cassel: Gunnin' For Hussein (Chicago Tribune, September 22, 2002)
George P. Fletcher: Sense and nonsense about self-defense when proof is needed (Taipei Times, October 29, 2002)
Richard Falk and David Krieger: No War Against Iraq: Bush's War Against Iraq Would Violate Constitution (Counterpunch, August 24, 2002)
Richard Falk and David Krieger: War on Iraq: It's Not the President's Decision (Counterpunch, September 19, 2002)
Crimes of War project: Iraq and the "Bush Doctrine" of Pre-emptive Self-defence
Key US strategic planning documents
The National Security Strategy of the United States of America
National Strategy to Combat Weapons of Mass Destruction

The Robert Jackson and Dwight Eisenhower quotations appeared in Jonathan Schell's January 13, 2003 article entitled The Case Against the
Blueprint for US world domination exposed




Sir, if the ability of the Star Wars ABMs to hit a nuclear missile is imaginary and the nuclear missiles in Iraq are imaginary, does that mean a Star Wars ABM could hit an Iraqi nuclear missile?

Calvin Trillin, Questions for President Bush's Next Press Conference

No President has ever done more for human rights than I have.

George W. Bush

CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

Article 6(a) of the Charter of the International Military Tribunal at Nuremberg

There's no telling how many wars it will take to secure freedom in the homeland.

George W. Bush, qtd. in The Sydney Morning Herald, 7 August 2002.

All of us have heard this term 'preventive war' since the earliest days of Hitler. I recall that is about the first time I heard it. In this day and time...I don't believe there is such a thing; and, frankly, I wouldn't even listen to anyone seriously that came in and talked about such a thing.

President Dwight Eisenhower, 1953, upon being presented with plans to wage preventive war to disarm Stalin's Soviet Union

If you look at those matters, you will come to the conclusion that the attitude of the United States of America is a threat to world peace.

Nelson Mandela

From these perspectives, under present conditions, it is clear that if the United States goes ahead and wages war against Iraq it will be guilty of what international lawyers call aggressive war, which was one of the principal charges leveled against surviving Axis leaders at the Nuremberg and Tokyo war crimes tribunals after World War II.

Richard Falk and David Krieger, War on Iraq It's Not the President's Decision

The charges in the Indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world.

To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.

Judgement of the International Military Tribunal at Nuremberg

Click here for information about preemption and international law

I think we ought to be all worried about fascism (in the United States).

Ray McGovern, former senior CIA officer and personal friend of George H.W. Bush, qtd. in John Pilger's Lies and More Lies

Q. Can you tell us your definition of traditional fascism?

Yes: the convergence of military and economic power on behalf of an ultranationalist ideology that views its enemies - internally and externally - as evil and subject to extermination or extreme punishment.

Richard Falk
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