Stephen Vasciannie IN LAST week's column, I considered some of the political aspects of the Anglo-American intervention in Iraq, particularly with reference to the doctrine of pre-emption which rests at the foundation of current American thinking on the right to use force in international relations. Gregory McKnight, in a powerful letter to the editor, has pointed out further political problems with pre-emption, and a number of e-mail correspondents have also highlighted difficulties with the underlying philosophy of the Bush Administration in this area.
The political arguments against the intervention are well made. It remains true, however, that these arguments do not reflect the entire picture. And one point I sought to make last week was that, having regard to both sides of the political debate concerning the intervention, we should avoid the kind of visceral anti-Americanism that instinctively ascribes ulterior motives to actions taken by the United States on the complex issue of national defence in the age of terrorism.
Today, though, it may be appropriate to examine how international law views or should view the doctrine of pre-emption, and the application of that doctrine to the case of Iraq. An important starting-point for any analysis on the use of force in international relations is Article 2(4) of the United Nations Charter. Article 2(4) indicates that all members of the United Nations should refrain in their international relations from the threat or use of force against the territorial integrity and political independence of any other state.
CONTRARY TO LAW?
This broad prohibition on the use of force would, without more, lead to the conclusion that the Anglo-American intervention is contrary to the law; but, of course, there is more. The United Nations Charter retains two important exceptions to the prohibition on the use of force in Article 2(4), namely, action in self-defence and action pursuant to the collective security arrangements in Chapter VII of the Charter.
As to self-defence, therefore, the question arises whether the doctrine of pre-emption, as applied in Iraq, can be reconciled with the terms of the United Nations Charter. On self-defence, the Charter stipulates, in Article 51, that: "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."
Thus, under the express terms of Article 51, it appears that the State is required to wait until an armed attack occurs before it may exercise the right of self-defence. Not surprisingly, this form of words has been the subject of intense controversy, and some States have honoured its terms more in breach than in observation. It is not realistic to require the State to act like a sitting duck, awaiting the attack of an adversary as the precondition for self-defence. And in view of this, various countries have maintained that there is, in fact, a right to anticipatory self-defence. This right, it is said, comes not so much from the express terms of Article 51, but rather from the fact that there was a pre-existing right of anticipatory self-defence at the time when Article 51 was accepted. So, the argument runs, Article 51 allows self-defence after an attack has occurred, but the pre-existing customary law allows anticipatory self-defence: you can attack them before they attack you.
ANTICIPATED ATTACK
There are, to be sure, certain problems of interpretation concerning the view that international law allows anticipatory self-defence, but, assuming the validity of this view, the question then becomes whether the doctrine of pre-emption may be justified under the heading of anticipatory self-defence.
This question should be answered in the negative: if anticipatory self-defence is permissible in law by virtue of the pre-1945 law then the limits to self-defence in the pre-1945 law should also be observed. And, under the pre-1945 law, anticipatory self-defence was allowed only in circumstances where the state anticipating the attack could demonstrate that the attack in question was 'instant, overwhelming, leaving no choice of means and no moment for deliberation' (The Caroline Incident).
The doctrine of pre-emption does not require that the attack anticipated must be immediate in the sense contemplated in the Caroline Incident. Rather, it would allow a pre-emptive attack considerably ahead of the possibility of an attack; it cannot therefore be reconciled with the doctrine of self-defence in international law.
REVISE THE CHARTER
With this in mind, Richard Perle and others in the Bush administration have not argued that the doctrine of pre-emption is consistent with self-defence in terms of the United Nations Charter; rather, they suggest that Article 51 is out of date, and inconsistent with the modern realities of terrorism.
Article 51 was created for the situation, well-known throughout history, in which armies were assembled and prepared for battle at least partly in the public view. To the extent that the terrorist operates by stealth and subterfuge, there is force in the contention that Article 51 and related rules are not appropriate to address the problem of those who would hijack planes and direct them into buildings filled with innocent civilians.
So, the case for a revision of the United Nations Charter to address the question of terrorism should not be ignored. The problem, though, is that the doctrine of pre-emption has been applied by the United States even before the Charter has been revised. This, on its face, means that the United States has decided, as a matter of politics and national security, to disregard the terms of the Charter. It means that the United States has more flexibility to combat terrorism; but it also means that prima facie the United States and Great Britain have acted contrary to the rules on the use of force established in international law. Next week, I will consider other arguments concerning the legal justifiability of the Iraq intervention.
Stephen Vasciannie is Professor of International Law and Head, Department of Government, UWI, Mona. He is also a consultant in the Attorney-General's Chambers.
