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The case against
preemption
By Peter Mark
The
Bush administration threatens a preemptive attack on
Iraq. It is important to ask what affect such an attack
might have on the relationship of the United States to
the rest of the international community. Almost without
exception, America's closest allies have voiced
opposition to a military attack against Iraq.
What might their response be if the US actually
carries out its threats? In the light of widespread
international opposition to the use of military force
against Saddam Hussein's government, it is important for
American citizens to ask: can such a preemptive use of
military force against another nation be justified by
international law?
Here, succinctly, are some
elements of international law that relate to the
situation between the United States and Iraq.
An
important principle of international law is the
avoidance of armed force. Article 2-4 of the United
Nations Charter prohibits all recourse to military
force, including war. The US is a signatory member of
the United Nations and must therefore respect the
charter.
Article 2 of the UN Charter: The
Organization and its members, in pursuit of the purposes
stated in Article 1, shall act in accordance with the
following principles ... all members shall refrain in
their international relations from the threat or use of
force against the territorial integrity or political
independence of any state, or in any other manner
inconsistent with the purposes of the United Nations.
Would the use of armed force against Iraq be
compatible with the aims of the United Nation? Article
51 of the charter authorizes the use of armed force for
legitimate self-defense, but this right is applicable
only if a member of the United Nations is the object of
an armed aggression.
Article 51 of the United
Nation Charter:
Nothing in the present charter shall
impair the inherent right of individual or collective
self-defense if an armed attack occurs against a member
of the United Nations, until the Security Council has
taken measures necessary to maintain international peace
and security. Measures taken by members in the exercise
of this right of self-defense shall be immediately
reported to the Security Council and shall not in any
way affect the authority and responsibility of the
Security Council under the present charter to take at
any time such action as it deems necessary in order to
maintain or restore international peace and security.
Armed intervention is justified under the
following conditions:
1. The existence of armed
aggression (the definition adopted by the UN General
Assembly, Resolution 3314 of 1974): Aggression is
defined as the use of armed force by one state, against
the sovereignty, territorial integrity or political
independence of another state.
2. The absence of
necessary measures by the UN Security Council to
maintain peace. Once the Security Council has taken
these measures, the right to armed self-defense ceases.
A state that takes measures of legitimate self-defense
is obligated to inform the Security Council.
3.
Legitimate defense only justifies "those measures
proportional to the armed aggression that has occurred,
and that are necessary for ending that aggression."
(International Court of Justice, June 27, 1986 in re
Nicaragua).
Self-defense only warrants "measures
which are proportional to the armed attack and necessary
to respond to it". It implies that the victim of
aggression must not occupy the aggressor state's
territory, unless strictly necessary.
The use of
armed force may on occasion be justified as part of
humanitarian assistance, but only in order to prevent
human suffering and "to protect life and health and to
ensure the respect of persons" (International Court of
Justice, June 27, 1986 in re Nicaragua). Such
intervention must not be discriminatory.
In each
of these cases, it is clear that the United States does
not have the right to intervene without the approval of
the Security Council. Nevertheless, on several occasions
the US has used the argument of Article 51 of the UN
charter to justify attacks that do not fall within the
domain of legitimate defense:
- In 1986 against Libya
(to justify an attack that caused the death of 37
people, mostly civilians) in reprisal for the bombing of
a Berlin disco that caused the death of an American
soldier.
- In 1993 against Iraq (purportedly to
prevent an assassination attempt against the US
president orchestrated by Iraq).
The rationale
of anticipatory self-defense has been invoked by Israel
to justify attacks against Palestinian camps in Lebanon
in 1975. Subsequently, UN Security Council resolutions
have condemned this attack while contesting the idea of
self-defense where there has been no armed intervention
by the "aggressor".
The thesis of anticipatory
self-defense is thus not an acceptable principle of
international law today, because it is prone to
arbitrary interpretation. A preemptive attack on another
sovereign nation is counter to established and
universally accepted standards of international law.
This may help to explain the vehemence of opposition to
a preemptive attack, among even our staunchest European
allies.
Peter Mark pmark@wesleyan.edu
is an historian who teaches at Wesleyan University. This
article was written with the assistance of Claudia
Sciotti, a doctor of international law who works for the
Commission on Human Rights of the European Parliament,
in Strasbourg, France.
(Posted with
permission from Foreign
Policy in Focus)
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