Re: virus: Pre-emptive Self Defence

Date: Wed Jul 31 2002 - 20:04:08 MDT

On 31 Jul 2002 at 8:27, kharin wrote:

> Jumping the Gun
> Michael Byers
> 'We must take the battle to the enemy, disrupt his plans, and confront
the worst threats before they emerge.' Last month, in a commencement
speech at West Point, George W. Bush announced an expansive new
policy of pre-emptive military action. The graduating students greeted
announcement with enthusiastic applause, thus demonstrating not only
their patriotism, but also a certain lack of historic awareness.
> In 1837, the British were crushing a rebellion in Upper Canada. The
United States, while unwilling to antagonise a superpower by
the rebels directly, failed to prevent a private militia being formed. The
volunteers used a steamboat, the Caroline, to transport arms and men
an island on the Canadian side of the Niagara River. The British
responded with a night raid: capturing the vessel as it was docked at
Schlosser, New York, they set it on fire and sent it over Niagara Falls.
> The incident caused disquiet in Washington. British forces, having
torched the White House and Capitol in 1814, were again intervening
US territory. Diplomatic representations culminated in an exchange of
letters between Lord Ashburton, special minister for the negotiations,
Daniel Webster, the US Secretary of State. They agreed that such raids
could be justified only if there was a 'necessity of self-defence, instant,
overwhelming, leaving no choice of means, and no moment of
deliberation' - and if nothing 'unreasonable or excessive' was done.
> Until the Caroline case, self-defence was a political justification for
what, from a legal perspective, were ordinary acts of war. The positivist
international law of the 19th century rejected natural law distinctions
between just and unjust wars. Military aggression was unregulated and
conquest gave good title to territory, as demonstrated by the British
acquisition of the Falklands in 1833. The Caroline case did nothing to
prevent aggression, but it did draw a legal distinction between war and
self-defence. As long as the act being defended against was not itself
act of war, peace would be maintained - a matter of considerable
importance to relatively weak countries, as the United States then was.
> The Caroline criteria of necessity and proportionality became widely
accepted as customary international law - an unwritten body of rules
formed from the behaviour and opinions of states. But it took another
century, and the First World War, to convince statesmen of the need for
constraints on military aggression. A first effort was made in 1919, when
the League of Nations Covenant was adopted at Versailles. Under the
Covenant the Council of the League could issue recommendations to
states in danger of going to war. If the Council failed to agree, however,
the disputing parties were free to take whatever action they considered
'necessary for the maintenance of right and justice'. The League also
lacked the capacity to enforce decisions, while any hope that it would
co-ordinate enforcement action by its members disappeared when the
US Senate rejected the Covenant in 1920.
> The Kellogg-Briand Pact of 1928 prohibited 'recourse to war for the
solution of international controversies'. The Pact, which was eventually
ratified by 62 states, made an exception for self-defence, but failed to
define it - with the result that the customary criteria set out in the
case remained the only legal bases for the use of force in international
affairs. Strong on principle but again lacking an enforcement
the Pact had little practical effect. Some countries evaded it by avoiding
formal declarations of war.
> In 1945, the UN Charter required all states to 'refrain . . . from the threat
or use of force'. It thus extended the prohibition on war to include
undeclared conflicts. Most important, the Charter provided an
mechanism. The Security Council - an 11 (now 15) member body - was
given authority to determine 'the existence of any threat to the peace,
breach of the peace or act of aggression', to impose sanctions, and to
'take such action by air, sea or land forces as may be necessary'. This
was a constitutional moment in international affairs: an anarchic world
self-help and temporary alliances was transformed into a nascent
of governance.
> The drafters of the Charter were hardly naive. Recognising that the UN
could be imperilled if powerful states were threatened with collective
action, they granted permanent membership of the Security Council and
a veto on its actions to Britain, China, France, the Soviet Union and the
US. Knowing that the Council could never respond promptly to every
of aggression, they also included an exception for self-defence. But in
addition to necessity and proportionality, three new restrictions were
introduced: a state could act in self-defence only if subject to an 'armed
attack', acts of self- defence had to be reported immediately to the
Council, and the right to respond ended as soon as the Council took
> The 'armed attack' requirement superseded any pre-existing right of
anticipatory action. In recognition of this, since 1945 most states have
refrained from claiming pre-emptive self-defence. Israel justified the
strikes that initiated the 1967 Six-Day War on the basis that Egypt's
blocking of the Straits of Tiran was a prior act of aggression. The United
States justified its 1962 blockade of Cuba as regional peacekeeping,
its shooting down in 1988 of an Iranian civilian Airbus as a response to
ongoing attack. International opinion on this issue was never clearer
when Israel destroyed an Iraqi nuclear reactor in 1981, and claimed
anticipatory self-defence. The then Prime Minister Margaret Thatcher
said: 'Armed attack in such circumstances cannot be justified. It
represents a grave breach of international law.' The Security Council
unanimously passed a Resolution damning the Israeli action as illegal -
strong condemnation indeed, especially given that the US was
party to it.
> In the context of the Cold War, the dangers of anticipatory self-defence
were easily understood. Even the most hawkish leaders baulked at
countenancing a right of pre-emptive action when the world's principal
disputants both had nuclear missile submarines designed to evade a
surprise attack. Today, as seen from the Oval Office, the situation looks
quite different. Russia has become an ally, no other potential enemy
submarine-based nuclear missiles, and construction of a missile
system designed to ward off limited attacks has already begun. This
President does not feel deterred by the prospect of Armageddon.
> Domestic considerations often determine US foreign policy. It therefore
comes as no surprise that the President has seized on pre-emptive
abroad as a means of advancing his political agenda at home. A top
domestic priority is gaining control of the confirmation process for
judges, who play an inordinately powerful role in US politics - as Bush's
occupation of the White House demonstrates. A strong Republican
showing in November's mid-term elections would provide the President
with the opportunity to shift the entire US legal system dramatically and
more or less permanently to the right. Nearly eight years of deadlock
between the White House and Senate have left numerous openings in
district and appeals courts, while in the Supreme Court several aged
conservatives are unlikely to survive - literally - for much longer. Tariffs
on steel and lumber, massive agricultural subsidies, and staunch
for Ariel Sharon are all directed at maintaining support for Bush's allies
the swing states of Florida, Ohio and the Mid-West, with little regard for
the global consequences. But even then, the prospects are not good.
economy has been weakening ever since Bush was elected and
knows quite how far the rot in Enron, WorldCom and Xerox, aided and
abetted by Arthur Andersen, has spread. Furthermore, suspicions are
growing that the 11 September attacks could have been prevented. Add
this the fact that, even in normal circumstances, the mid-term elections
tend to go against the party that controls the White House, and
Republican prospects might appear more than a little iffy.
> But patriotism could provide a refuge: a major military action would, at
least initially, elicit considerable support at the polls. Unfortunately,
al-Qaida has dispersed into the villages of Afghanistan and Pakistan,
leading the United States to conduct a series of small, messy
that do not play well on TV. It is the need for more dramatic targets that
has led to the new and somewhat exaggerated emphasis on biological,
chemical and nuclear weapons. Saddam Hussein's use of poison gas
against Kurdish villagers in 1988 is advanced as proof that he would
such weapons against the US today, even though doing so would
his own destruction. Iran's desire to acquire a credible deterrent within
nuclear neighbourhood is considered threatening to a country six
thousand miles away. Cuba's healthcare system (perhaps thought
suspicious because it is publicly operated) is singled out as a possible
source of biological weapons. None of these threats is imminent, but,
as the President explains, 'if we wait for threats to fully materialise, we
 have waited too long.'
> What is most striking about the new policy is that it portrays weapons of
mass destruction as a new problem, and unilateral action as the only
of dealing with them. In fact, the first treaty on poison gas dates from
For decades, the UN has led efforts to control the development and
spread of such weapons. Now, with stunning hypocrisy, the Bush
Administration has refused to ratify enforcement protocols to the
Chemical and Biological Weapons Conventions. It has pressured 139
countries into dismissing Josť Bustani, the highly regarded director-
general of the Organisation for the Prohibition of Chemical Weapons, in
the middle of his term. And, in violation of its obligations under the
Non-Proliferation Treaty, it has accelerated efforts to develop battlefield
nuclear weapons that can penetrate deep bunkers and destroy
chemicals and pathogens.
> The British Government was initially supportive of the new strategic
position. In March Geoff Hoon, the Defence Secretary, said the
Government 'reserved the right' to use nuclear weapons if Britain or
troops were threatened by biological or chemical weapons. Hoon was
asserting an existing right of pre-emptive action - on the basis of an
argument, supplied by Foreign Office lawyers, that the customary
international law of the Caroline case was incorporated, in full, into the
UN Charter as an 'inherent right'.
> There are numerous problems with the argument. Most notably,
international law requires that treaty terms be interpreted according to
their ordinary meaning. The crucial passage on self-defence is in Article
51: '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, until the Security Council has taken
measures necessary to maintain international peace and security.' The
term 'inherent' is thus clearly constrained by the phrase 'if an armed
occurs' and the right of self-defence is seen merely as a limited
within a system that prioritises Security Council action.
> In any event, a profound unease has crept over Whitehall as the full
extent of the US claim has become apparent. The Bush doctrine makes
attempt to satisfy the criteria of the Caroline case: there is no
of waiting for a 'necessity of self-defence' that is 'instant, overwhelming,
leaving no choice of means, and no moment of deliberation'. Unlike
Hoon, the President is not 'reserving a right' to respond to imminent
threats; he is seeking an extension of the right of self-defence to
action against potential future dangers.
> Bush's advisers, though focused on the mid-term elections and more
than willing to violate international law if necessary, are savvy enough
realise that a change in the law could provide long-term benefits for
such as making it easier to secure support for future military actions.
are also fully aware that rules of customary international law and
interpretations of the Charter can be modified by the changing
of states - and that it is sometimes possible deliberately to provoke the
necessary behaviour. In the aftermath of 11 September, the US
successfully sought to extend the right of self-defence to include action
against state-sponsors of terrorists when those terrorists have already
attacked the responding state. It did so, first by claiming the right, and
by seeking the express or tacit support of other countries. Intense
diplomatic pressure - including the 'with us or against us' threat - was
brought to bear. Few were brave or principled enough to disagree.
action in Afghanistan was then sufficient to secure the claim.
> Today, the 'with us or against us' threat has been repeated. An attack on
Iraq is planned, ideally for just before the mid-term elections. The only
question is, will other countries support this latest initiative by the
States? Before Tony Blair decides, he should consider the negative
consequences. A broad right of anticipatory self-defence would
dangerous uncertainties. Who would decide that a potential threat
pre-emptive action? How does one protect against opportunistic
interventions justified as anticipatory self-defence? Do we wish to
the same extended right to India and Pakistan, as the reciprocal
of customary international law would require? Might the development of
such a right prompt potential targets into striking first, to use rather than
lose their biological, chemical and nuclear weapons?
> The UN Charter provides a clear answer to these questions: in the
absence of an attack, the Security Council alone can act. And if
with clear evidence of an imminent biological, chemical or nuclear
there is no doubt that it would act, since the effects of weapons of mass
destruction can hardly be confined. In recent years, the Council has
repeatedly authorised military action even in situations where there was
threat to its members - in Iraq, Somalia, Bosnia-Herzegovina, Haiti and
elsewhere. Last September, it took only one day before all 15 states
affirmed the right of the US to engage in self-defence.
> Only those who have no reason to fear military force can contemplate a
world without the combined protections of the UN Charter and the
customary law of the Caroline case. The President feels able to claim a
broad right of pre-emptive action because other states do not currently
have the capacity to retaliate. What Bush fails to realise is that his
 will encourage other states to acquire the very weapons that he
to abhor.
> US opposition to the International Criminal Court has attracted much
attention, but the likely consequences of that opposition pale in
comparison to the damage that could be caused to international affairs
a broad right of pre-emptive action. It would shift us away from the UN
system and towards an anarchical world dominated by raw power,
alliances, and desperate attempts by vulnerable states to acquire the
capacity to deter. In pursuit of his own parochial interests, George W.
Bush would return us to the dark days before the Caroline tumbled over
Niagara Falls. Had he been speaking to the West Point class of 1838,
students would have withheld their applause.
There is a political dimension in Bush's calculations, and that is the
calculation that the american electorate would be profoundly
unforgiving if we once again suffered a massive attack during his watch
which his administration failed to prevent, but this is in addition to the
sincere desire to protect american citizens from such an attack, not
instead of it.
We have a situation where a global terrorist organization is capable of
thumbing its nose at some weaker countries and putting pressure on
others to allow it to establish planning and preparations for such attacks
in sparsely populated areas not under that government's control. In
such cases, as in the Phillipines and Yemen, our help has been
requested to root such operations out and bring their members to
ground, but we cannot guarantee that another government will not arise
that falls in a fuzzy area (due to its own Islamic populace and
politicians) between the blatant middle finger that the Taliban shot us
when we demanded the handover of Bin Laden and the closure of the
Al Quaeda camps and the request for, or acquiescence to, US
assistance demonstrated by the Phillipines and Yemen. It is
conceivable that such a country might say 'we'll handle it for you', and
then do little or nothing while appearing to do much, or else actively
conceal/deny their presence. In such a case, the US must reserve the
right to eliminate the incipient threat to it from within the host country's
borders, whether that host country acknowledges or approves of it or
not. Also, the nature of terrorist actions is to be surprises; as in 9/11,
the attacks frequently occur with little or no conclusive warning. One
cannot wait for the approval of the Security Council before one acts to
repel a terrorist attack that has not yet reached obne's borders, but will
do so quickly; likewise, one cannot risk (with Islamic countries
comprising some of the Security Council members - just not the
permanent ones) having word get back to terrorists that the US is aware
of such plans and preparing to obtain UN consensus to forfend them;
such information would either cause them to regroup and launch the
attack from another quarter or upon other targets, or else accelerate
their plans. Airplanes travel much faster than ships, and missiles even
faster. It's a different world, and different exigencies must be taken into
account in navigating its different threats.
> ----
> This message was posted by kharin to the Virus 2002 board on Church of Virus BBS.
> <;action=display;threadid=25901>

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