The 'Right' and Wrongs of Preemption, the US and International Law

05 Aug, 2008    ·   2642

Sonali Huria questions the logic behind America's recent policy on pre-emptive acts of self-defence

After his meeting on 20 July with the Afghan President, Hamid Karzai in Kabul, the Democratic presidential candidate, Barack Obama, reiterated his oft-repeated resolve to move US troops out of Iraq and 'take the fight to al-Qaeda in Afghanistan and Pakistan'. Describing the tribal regions in Pakistan as the 'greatest security threat', he declared in no uncertain terms that if Pakistan did not act, the US would use pre-emptive strikes against terrorist targets along the Afghan border and even in Pakistan. While the Republican nominee, John McCain denounced Obama's advocacy of pre-emptive strikes on Pakistani territory as 'naïve'; he was quick to add that pre-emptive military strikes against 'potential threats such as Iran' could not be ruled out.

The international system, since the 9/11 attacks, has witnessed significant changes in the foreign policy behaviour of the United States. America has appropriated the 'right' to act unilaterally when it deems it 'necessary'. Pre-emptive war or what is euphemistically termed 'anticipatory self-defence' is one of the several manifestations of its unilateralism in the international realm. 11 September paved the way for a new, aggressive American foreign policy, evidenced by the US National Security Strategy (NSS) of 2002 which advocated a policy of preemption, thereby throwing up serious challenges to the practice of international relations, predicated on ideals of mutual respect for state sovereignty and non-interventionism. Says Achin Vanaik, "the NSS document which for the first time ever officially endorsed Washington's right to wage pre-emptive and preventive wars, (was) in brazen contempt and violation of international law and the UN Charter."

The rules in the UN Charter are fundamentally non-interventionist and limit the use of force by states internationally to two cases, that is, for self-defence (emphasis added), and for purposes of collective security (emphasis added), and/or assisting UN (emphasis added) military operations. The Charter contains principles and rules that are strongly in favour of upholding state sovereignty and the non-use of force by states. Among the most compelling and frequently cited prohibitions on violating state sovereignty are those that are contained in Article 2 of the Charter. Article 2(4) states: "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."

The only legitimate exception to the prohibition of use of force in international relations is a state's right to self-defence, as enunciated in Article 51 of the UN Charter. However, even under Article 51, an act of unilateral self-defence is considered lawful only if it has been triggered by an armed attack that is either underway or has already happened. Additionally, the International Court of Justice (ICJ) has interpreted the terms of Article 51 on several occasions, most notably in the Nicaragua case, in which it ruled that the right of individual or collective self-defence exists only when an act is grave enough to amount to an 'armed attack.'

This exception to the use of force has already shown itself to be vulnerable to state abuse. The recent unilateral war waged by the US against Iraq is a case in point. The entire edifice on which America's justification for the war rested, that is, the possession of WMDs by a purportedly 'dangerous' Iraqi regime, and hence, the argument for self-defence, has proved to be completely hollow, in addition to being legally indefensible. In addition to the question of its legality, America's self-appropriated 'right' to preemption has raised other crucial questions as well. Can a state, for instance, appropriate the 'right' to pre-emption without taking on commensurate responsibilities? Noted international law expert, Upendra Baxi, in an article titled 'Operation Enduring Freedom', asks for instance, if 'collateral damage' in these 'presumptive acts of 'self-defence' do not constitute an 'international tort, attracting duties of restitution, reparation and rehabilitation?' Despite claims that America's preventive wars were geared towards rooting out terrorism and promoting peace and democracy; there can be little disagreement that the world has become extremely volatile since America's assault against Afghanistan and its unlawful invasion of Iraq. The Global Peace Index 2008, for instance, has graded Iraq as the most dangerous and unsafe of 140 countries ranked.

America's declaration that the US will "exercise its right to self-defence, including acting preemptively" is fraught with grave danger. Not only does it attempt to unilaterally and forcibly alter the framework of international law within which international relations have hitherto operated; but, in the long-term, threatens to undermine the only truly emancipatory political process of the 21st century, that is, decolonization, which gave newly-constituted states leverage against the might of the world's super powers. Countries of the South would do well to stand guard against this new American militarism, wrapped in the rhetoric of 'human rights protection', 'democracy promotion' and the infinite 'war against terror.'