Use of Preemptive Strike in the US - Essay Example

?The United s and the Use of the Preemptive Strike For many years, international law acknowledged that s need not suffer a military strike before they can take measures to defend against powers that present an imminent danger of attack. However, the US maintained the option of preemptive strike to counter sufficient forces of a threat to their national security. The idea is that the greater the threat, the greater the risk of inaction, and the more compelling the case for taking anticipatory action to defend, even if uncertainty remains as to the time and place of the enemy’s attack. Therefore, in order to forestall a certain act of hostile by an adversary, the US should act pre-emptively. Nonetheless, it has been said that the US will not take measures in all emerging threats, nor sovereigns should use “pre-emption” as pretense for aggression. Nevertheless, in the time when adversaries against peace nations actively seek the nuclear-armed capabilities, the US will not ignore while threats assemble. Finally, the purpose of the US action, as conveyed, is to eliminate a specific threat, not to promote international violence. Thus, in order to legitimize pre-emptive action against a state, promise of transparency of reasons, measured force and the establishment of just cause have been made by the state. In this context and given the history and facts surrounding Saddam Hussein’s regime in Iraq, the paper answers if the US can be justified under International Law in taking pre-emptive measures against Iraq in the year 2003. In the year 2003, the United States, supported by two of its allies, Great Britain and Australia, invaded Iraq, a Sovereign Nation, an event that raised many questions as to whether the attack was justified according to United States foreign policy and world politics (Ritcher, 2003). The reasons advanced as to why the attack took place were that Iraq was in the process of manufacturing weapons of mass destruction. The other reason was that the regime of Sadaam Hussein was a threat to world peace and the United States and that it was involved in the twin tower attack or 9/11 (Dworkin, 2002). It was also said that the said regime was working in corroboration with international terrorist groups like Al Qaeda and needed to be brought down. The United States also advanced the fact that declaring war on Iraq was a step towards fighting international terrorism. It was also alleged that declaring war on Iraq was one of the ways to enhance democracy in the Middle East. Lastly, it was said to have been done to help the people of Iraq remove a regime that was oppressing them and which supported torture and rape. The United States President contended that Iraq posed a threat, and the United States had a right under article 51 of the United Nations Charter to undertake the use of military action or force to counter the threat (Bellamy, 2003; White House, 2002). Because Iraq had not at any given time attacked the United States, the reason as advanced by former American President George Bush raised many questions as to the validity of the use of force to counter not real but anticipated attacks and threats. According to international law, it is illegal to use force between states, except for situations, which meet two main conditions (Arend, 2003). The first situation occurs when the Security Council authorizes the use of force by one state against the other, and the second condition is when a state is acting in self-defense. The action of a state in self-defense has been a subject of intense debate, since self-defense can be interpreted to include anticipated danger. Self-defense is subject to the interpretation and application of Article 51 of the United Nations (UN) Charter, which authorizes states to use force in defense against attack. In recent times, the arguments around the notion of self-defense have been centered on whether the use of military force is justified to be used preemptively (Bothe, 2003). Recently, the United States used the national Security Strategy to institute a system of using preemptive force to stop and prevent hostile acts of aggression by terrorists and states using weapons of mass destruction. This policy as the one used in the justification for the attack on Iraq in 2003, and the extent to which the policy is within the United Nations Charter is still under debate. Given the current existence of customary laws, self-defense by any state is justified, but the extent to which the United States seeks to extend its self-defense is questionable. Since the United Nations is the guiding body in all international relations, the UN Charter acts as the primary guiding book on the use of force between states (Green, 20000. Since the First World War and the Kellogg-Briand Pact, the Charter provides a summary of the international community’s condemnation of the use of war to settle international grievances. The first article of the Charter establishes the purpose and mandate of the Unite Nations as that of maintaining peace and security by being able to take communal measures to prevent and remove threats and prevent acts of aggression (Article 1(1)) (Gu, 2003). Pursuant to this mandate, the second article of the Charter states that all members of the United Nations shall not threaten to or use force against any other state or in any manner that violates the mandate of the United Nations (Article 2(4)). According to Dinstein (2001), these articles apply to all states, whether members or not, of the Unite nations. The second article prohibits all reversion to the use of force, whether in aggression or in the protection of human rights or humanitarian intervention. Despite the message by these two articles, there are two main exceptions to the prevention of the use of force against any other state (Ellis, 2003). The first exception occurs for actions that are sanctioned by the United Nations Security Council. When non-forcible measures have been proven ineffective in restoring international peace, Article 42 of the United Nations Charter gives the Security Council the permission to take any necessary actions required to restore and maintain international peace. These actions include the justification for the use of force, and apply, by extension, to all United Nations members. This implies that specific authorization for the use of force to settle international disputes is up to the sole discretion of the UN Security Council, and individual states do not have the mandate to determine whether threats to international peace have been detected. Therefore, the sole authority to authorize military action against any independent state lies solely with the United Nations Security Council. The second exception to the rule against the use of force is Article 51 of the United Nations Charter, which necessitates the use of force in self-defense. Part of the article states that, “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…” (UN Charter, Article 51). An analysis of the above article indicates that it expressly allows for the use of force only if an armed attack has been perpetrated against the said state. The inclusion of the two words in the Charter limits the extent to which a state can go in using the United Nations Charter to strike preemptively. (Sofaer, 2003) In fact, the article does not justify preemption as a form of self-defense or against anticipated military action. The article permits self-defense only when armed attack occurs against a state, a fact that was supported by the ruling in Nicaragua v The United States of America (1986). The ruling stated that the right permitted by Article 51 of the United Nations Charter is only subject to the state in question having suffered an armed attack. This means that the use of force outside of this mandate is unlawful, which indicates that the attack on Iraq by the United States was not justified under the United Nations. Self-defense as a right is also protected by more than the United Nations Charter. According to customary international law, self-defense is a right that is enjoyed by any State, and extending than Article 51, allows for the use of force against preempted attacks (Freedman, 2003). Historically, the right to self-defense under preemption has been governed by the use of customary law. Dinstein (2001) states that The United States was justified to preemptively attack Iraq in 2003, since customary rights accorded to states allow them to take preemptive actions in ancitipation of attack, as opposed to direct attack as directed by the UN Charter. This customary right accorded to states was enunciated by the Caroline incident of 1837. According to Steyn (2002), the Caroline incident occurred when Canada was still under British control in the 19th century, and anti-British attacks were common throughout the whole Canadian region. In the year in question, British soldiers suspected that a small American boat, the Carolina, was being used by Canadian rebels to supply the insurgency working against the British. The British soldiers decided to enter the United States and destroy the small boat, and in the process, set alight the boat and set it adrift. Carolina drifted down the river and in the whole process; at least one American soldier lost his life. The British offered justification for their actions by stating that they had a right of self-defense, where they stated that the boat would have continued supplying the Canadian rebels. The American government accepted this justification, stating that the basic elements of the right to self-defense included actions where there is a necessity of self-defense. The necessity is supposed to be in a state that is instant, overwhelming, and leaves no room for deliberation or argument. According to Jennings et al (1996), the then Secretary of State stated that the response by military might should not be unreasonable or excessive, since the act that justified self-defense must be limited by the arising necessity to defend the state. This analysis indicates that the right to self-defense is justified if the requirements of necessity and proportionality are fulfilled. Whether the threat is anticipated or not, self-defense is necessitated if the threat is anticipated to be instant and imminent, which means that the Unite States was justified in applying the preemptive strike rule against Iraq in 2003 (Slaughter, 1993; Singh and MacDonanld, 2002). However, an analysis of the two arguments presented above indicates that they might clash in their mandates, where the UN Charter is argued to extinguish the imminent right accorded by customary law. Some commentators will argue that, since the UN Charter is a recent development, it extinguishes the imminent right accorded by the customary law established by the Caroline incident. The opponents of preemptive attack state that the UN Charter terminates the right of anticipatory self-defense, while other people argue that the wording of the Charter strengthens the right. In Article 51, the words ‘inherent right’ could be used to recognize and continue the right established in the customary right law of 1837 (Galston, 2002). From the article, part of it states that, “nothing in the present Charter shall impair the inherent right…” (UN Charter), which implies that the customary law established earlier would not be revoked by the Charter. Glennon (2002) states that the assertion of the statement above, is that the customary law would continue unimpaired after the UN Charter was introduced, an argument that seems to be supported by the Nicaragua case. The ICJ stated that the Charter agrees to the existence of a collective self-defense obligation to all states as outlined by customary international law. The court also states that the exception to the prohibition of the use of force in self-defense, either for an individual or a state is already settled by international customary law. Despite the fact that the court did not mention the use of preemptive or anticipatory self-defense, the referral to customary law validates the use of anticipatory self-defense statements as stated by past international events. Analyzing the Caroline incident, it can be concluded that a right to anticipatory self-defense arises under the elements previously stated, and supported by the Charter. The justification for the preemptive attack by the United States on Iraq in 2003 can also be found from the actions of other states. Since the inception of the UN, the actions of several states indicate that customary law still stands, alongside the guidance from the UN Charter. The first example of the application of the international customary law was evidenced in the Cuban Missile Crisis, where, in 1962, the United States instituted quarantine around Cuba for self-defense. In the year, President Kennedy stated the Soviet Union was suspected of planning an attack against the United States, since they had placed offensive missiles in the region. In this case, the US decided to defend its territory on the basis of self-defense, which was done by imposing a naval quarantine on the island. Despite the fact that the United States had not been attacked, the availability of photographic evidence indicated that the Soviet Union was placing medium-range missiles in Cuba, which could be used to attack the US. The issue of preemptive self-defense arose from the fact that the country could be attacked, and not that it had been already attacked. In this case, the country did not rely on the issues of self-defense as stated by the United Nations Charter, instead, it relied on the principles of customary law set out internationally. This justification was phrased by the Legal Adviser to the State Department as, “I think the central difficulty with the Article 51 argument was that it seemed to trivialize the whole effort at legal justification. No doubt, the phrase “armed attack” must be construed broadly enough to permit some anticipatory response. But it is a very different matter to expand it to include threatening deployments or demonstrations that do not have imminent attack as their purpose or probable outcome. To accept that reading is to make the occasion for forceful response essentially a question for unilateral national decision that would not only be formally unreviewable, but not subject to intelligent criticism, either .... Whenever a nation believed that interests, which in the heat and pressure of a crisis it is prepared to characterize as vital, were threatened, its use of force in response would become permissible .... In this sense, I believe that an Article 51 defense would have signaled that the United States did not take the legal issues involved very seriously, that in its view the situation was to be governed by national discretion, not international law.” Another international incident that exemplifies the issues of customary law was the Six Day war of 1967, where Israel attacked Arab countries based on self-defense principles. In 1967, the president of Egypt moved the country’s armies towards Israel, and action that was followed by the withdrawal of UN peacekeeping forces from Sinai. This was followed by similar actions by Syria, Iraq, Jordan and Saudi Arabia, which led to the closing of the port of Aqaba to Israeli ships. In the subsequent six days, Israel attacked and destroyed the Egyptian and Arab allied forces and occupied several regions. The occupied regions included the Sinai Peninsula, the West Bank, and the Gaza Strip, where Israel justified its actions by saying it was defending its borders. Israel claimed that it was forestalling an Arab invasion by attacking the Arab insurgents, an argument that was accepted by both the Security Council and the General Assembly of the UN. Israel claimed the imminent attack as a justification for the application of International customary law, and despite the fact that the attack was not favored, it was accepted. The other incident also concerned Israel, where, in 1981, they attacked a nuclear reactor being built in Iraq. The assertion by Israel was that Iraq considered Israel a permanent enemy, since it had already participated in three wars with Israel and continued to assert that Israel did not have a right to exist. Israel also stated that the nuclear program in Iraq was for the development of weapons to attack Israel, and that it had to remove the threat to its existence. The Israeli statement was that by removing the threat, the country was exercising its right to self-defense as stated by customary international law and by the UN Charter. However, the attack was roundly criticized by the Security Council on the basis that it violated the UN charter. An analysis of Operation Iraqi Freedom along the lines stated above indicates that the action might not have been entirely justified (Romano, 1999). Given the belief of many individuals that a nuclear inspection was more favorable than the attack that occurred, the necessity of the action is put in doubt. A vital feature of the justification of necessity was that US should have first shown that Iraq posed an imminent threat, which would satisfy all the conditions for the use of a preemptive strike. The continued attempts of both the US and UK governments to prove this fact indicates the necessity of the preemptive strike. Many countries indicated that the military intervention in Iraq was not entirely justified, particularly since they had not proven beyond reasonable doubt that the Iraq possessed weapons of mass destruction and was a clear threat to the United States and its allies. The US was required to show that Iraq posed a significant threat, and that the threat was within the confines of the Caroline elements, which would have given legitimacy to the use of pre-emptive attack. As we look at preemption and United States foreign policy, it would seem that it would auger well for the State to reevaluate its stand and more so to adopt the principles of the Caroline boat incident as the crucial when dealing with issues of self-defense (Rifkin, 2002). This will make the United States Security policy less controversial and will make it easier for it to have support in future undertakings that would require preemptive action. The war on Iraq has shown that members of the international community are ready to support the use of force in a preemptive manner if the principles of the Caroline boat attack are adhered to and if ample evidence is produced that, there was danger of imminent attack. The only problem to America in this line of thought is that it may not auger well for it since it is a prime target of terrorist attacks and threats of being attacked with weapons of mass destruction (Record, 2003). The Caroline case has been cited severally because it set an example of the way future acts of preemptive action were to be handled. The facts of the case are relevant to what would happen even though the incident occurred in 1837. The British Government argued then that it was the target of attacks by Canadian rebels and proved beyond doubt that it was true. When it acted preemptively, it then was justified as this was for the purposes of preventing any more future attacks. Similarities can be drawn with the assertion by the United States that it has been the target of terrorist attacks for a long period. If conclusive evidence were obtained by the United States Government or any other nation that a certain state was giving weapons or other forms of support to a terrorist group this would automatically warrant preemptive action to deter the threat. This could have made the Iraq invasion justifiable but it was not the case, owing to the fact that no conclusive evidence has been advance about an imminent threat that was in the offing to warrant the use of the amount of force that was witnessed and which resulted in such a magnitude of destruction. The United States also just alleged about an alliance between Saddam Hussein and the terrorist group Al Qaeda but did not provide advice to back the allegation. If such evidence had been forthcoming, it would have built a strong case for the United States and its allies to support the use of force preemptively. States are acquiring weapons of mass destruction and existing rules do nothing to address the problem (Deller, 2003). Not all of this Nations acquire the said weapons for onward transmission to terrorist groups or were associated with them. Not much has been done by domestic rules to address this situation but it should be noted that it is not only the use of force that can be applied to address this situations. The United States Security strategy states that force will not be employed to preempt anticipated threats. There exist other avenues too to address the concerns like; the use of the current anti-terrorism mechanisms, intelligence agencies which are not biased and legal means as established and which are exercised impartially. The use of force preemptively can only be considered can only be considered as an option when other ways have been applied and considered. The United States should also stop acting independently or unilaterally unless there is imminent threat and, should only act if the action can be justified by the United Nations Charter or by the domestic international law. The United States would then be expected to have ample evidence to support the justification of preemptive action. It also should consider who would verify the validity of the action to be taken, considering the evidence at hand. While International law gives some freedom to assess the threats, the freedom is minimal. The other fact is that, since the United Nations Security Council has the mandate of authorizing the engagement of force in case a Nation experiences threat, the United States should have sought such intervention from such a body instead of acting unilaterally (Payne and Dombowski, 2003). While it has been documented that the United States tried this approach, it was only when it realized that it needed to engage in some diplomatic and political maneuvers to win the support of its allies and other Nations. In the quest to justify the reasons for the war, America ended up giving inaccurate information and intelligence reports that were wrong. This only added disagreement as to whether the war was justified. Preemptive action that the United States could take in future should be preceded by proper engagement with the International community in and outside the Security Council where credible evidence will be will be provided which will verify whether the anticipated threat warrants action. This was ably demonstrated by the very elaborate diplomatic, political and intelligence reports and efforts that were put in place before the United States excursion into Afghanistan. This was in complete contrast to the unilateral, hasty and disjointed plans that were undertaken before the Iraq attack. If the United States seeks to act multilaterally, for example, with the United Nations, it will change the perception of many that it has started to use its power with restraint and was becoming responsible for its actions (O’Connel, 2002). This type of action will remove the tendency by states to use preemptive action allegedly for self-defense and return to more legal means. It is very important for the United States to legitimize its policy concerning preemptive action (Love, 2003). This will be the establishment of what to do in case there is armed attack or when an attack is preempted. Though there has not been complete agreement ultimately, this would be the way forward. It is not clear, for example, whether International law allows for the employment of preemptive use of force without the authorization of the Security Council. All the same, article 51 would not prevent the preemptive use of force, but the said action should meet the threshold of being necessary and proportional. The attack on Iraq was supposedly done in self-defense, for acts that were anticipated, but had not actually taken place (Damrosch, 1992). The United Nation Charter prohibits the use of Force by Nations against other Nations in line with article 2 of the Charter. Nations will respect other Nations territorial integrity and political independence according to article 2 (4) and will respect all other principles as they are laid down by the United Nations. States will only attack one another when the United Nations Security Council authorizes the use of force or when the attack is done for the purposes of self-defense. The said article states that ,’all members and even those that are not members shall desist as they relate with one another internationally from threatening or using force against one another and will respect the territorial integrity and Independence of one another. This then portends that the use of preemptive self-defense has not been enshrined in the United Nations charter but as seen, it is only established in domestic international law, and then after satisfying certain criteria as will be seen later so as to be justifiable. The United States attack showed that it is a matter that needs thorough investigation in international law, considering that it touches on world peace. Allowing it to be instituted without proper mechanisms and interpretation would allow strong nations weaker states in the pretext that they anticipate that all sorts of evil are about to be done by the weak states. The purposes, for which the United Nations was set up, are clearly set up in article (1) of the United Nations Charter, and it is to help in the maintenance of peace and security. The other purpose is to take the necessary and effective measures to prevent the threats to peace and to suppress all aggressive acts and breakage of the law. Most of the reasons for justifying the attacks were and are still being proved to have been untrue. Just before the attacks, Saddam Hussein had destroyed all the weapons of mass destruction in his possession. This was proved by the fact that after he was dethroned, no such weapons were found in his possession anywhere in Iraq. This means that he had all along been telling the truth, and at no time did such a threat exist. The other reason for the United States attack that Iraq was involved in the September 11 attack on the twin towers and other facilities has not been proven. While Saddam Hussein intonated that the United States twin tower attack was justified due to the assumedly wrong United States policy, there was no conclusive evidence that he was involved in the attacks (Heisbourg, 2003). The other allegation that Saddam Hussein supported terrorist organization like Al Qaeda and OBL was not and has not been proved since no agreement that they formed was ever brought to light. It remains just an allegation that was not substantiated then and now. The reason that attacking Iraq would enhance democracy in the Middle East was also thought to have been advanced when the other reasons above were found not to stand the test of evidence, and the United States had to justify the war (Gaddis, 2002). In conclusion, international law allows the use of force only for the curbing of aggression and in the protection of human rights. In addition to this, the United Nations Charter has two provisions that are in a different category to the general rules against the use of force to settle disputes. In article 42 of the United Nations Charter the first provision concerns what acts the charter authorizes the United Nations and its members to take in the quest to maintain peace and security where it has been concluded that nonviolent means have proven to be inadequate. When authorization has not been given however the, acts would be considered unlawful and a breach of international law. No state has been given the mandate of determining whether the said acts warrant the use of force to deter them. This prerogative has been granted sorely to the United Nations Security council and more so, the authorization of military means to resolve conflict in the world. The second provision concerns the rules that govern the application force in self-defense, as set out in article 51 of the United Nations Charter. The section or provision states that members will not be hindered by anything in their quest of self-defense if they face armed attack. This act of self-defense will be legal according to international law and United Nations Security Council whether it is done by an individual State or if it seeks for help from other Nations. This armed action will be deemed to be within international law until the United Nations Security Council takes measures to restore the peace and security that had been threatened by the aggressive action. There is common agreement that the words ‘armed attack’ limit the scope of self-defense and thus this provision cannot justify the employment of preemptive self-defense. This was ably demonstrated in the ruling of the International court of Justice, in the Nicaragua versus The United States case in 1986 where the court ruled that the provision is applicable only when the State in question has faced armed attack from another nation and that the application of force when this was not the case. The case ruled on many issues in favor of Nicaragua because there was no justification or proof that the United States of America was acting in self-defense. There was even recommendation that the United States of America pay damages to the Government of Nicaragua for the damages caused by the military action on its territory. The above analysis indicates that despite the laws relating to anticipatory self-defense, there is a need to justify any actions. There is a basis for preemptive strike according to international customary law, and is somewhat supported by the United Nations Charter. It is arguable that the right to self-defense as illustrated by international law and past events, specifically the Caroline incident, is still valid. This means that the customary international law complements the assertion of Article 51, which is supported by state practice as indicated above. In theory and practice, the use of preemptive law for self-defense is apparently supported by international law. The best legal foundation is the fourth chapter of the UN Charter, which clearly allows for the use of anticipatory offenses. References Arend, A. 2003. ‘International Law and the Preemptive Use of Military Force’. The Washington Quarterly 26(2):89-103. Bellamy, A. 2003. ‘International Law and the War with Iraq’. Bothe, M. 2003. ‘Terrorism and the Legality of Pre-emptive Force’. European Journal of International Law 14(2):227-240. 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Singh, R. and Macdonald, A. eds. 2002. ‘Legality of use of force against Iraq’, opinion paper submitted by public interest lawyers on behalf of Peacerights. Slaughter, A-M. 1993. ‘Emerging Norms of Justified Intervention’ In Emerging Norms of Justified Intervention, eds. L. Reed and C. Kaysen, Cambridge, Massachusetts: Committee on International Security Studies, American Academy of Arts and Sciences. Sofaer, A. 2003. ‘On the necessity of Pre-emption’. European Journal of International Law. 14(2):209-226. Steyn, M. 2002. ‘The triumph of American values: After 11 September America knows who the enemy is, says Mark Steyn. There can be no more polite fictions. Moral clarity and the Bush doctrine of pre-emption now govern world affairs’. Spectator. 290(9083):12-14. The White House. 2002. The National Security Strategy of the United States of America, September 2003. Washington DC: The White House Press Secretary. United Nations. 1948. Charter of the United Nations. Ritcher, C. (2003). 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