Anticipatory Self-Defense; Terrorists and Nukes Pose Special Threat

The Washington Times (Washington, DC), July 25, 2005 | Go to article overview

Anticipatory Self-Defense; Terrorists and Nukes Pose Special Threat


Byline: Louis Rene Beres, SPECIAL TO THE WASHINGTON TIMES

International law is not a suicide pact. Fashioned to ensure the survival of states in a world still lacking global government, these binding rules emphasize the right of national self-defense. This right may be exercised not only after an attack has already been suffered, but also in advance, if the defensive first strike can meet certain essential conditions.

Consider Iran. President Bush has assuredly authorized the Pentagon to prepare plans for the pre-emptive destruction of that country's developing nuclear installations. Leaving aside the difficult tactical side of such an operation - and whether or not it would actually be helpful to American national security - a prior question arises: Would this particular pre-emption be permissible under international law? Although similar legal questions have been raised about the current war in Iraq, a defensive first-strike against Iran would have far narrower strategic goals. Here, with no obvious humanitarian intention of regime change, America's only verifiable target objectives would be specific nuclear industries and infrastructures.

Pre-emption, of course, is already a codified part of Mr. Bush's military doctrine. Operation Iraqi Freedom is rooted conceptually in "The National Security Strategy of the United States of America" (Sept. 20, 2002), a document which recognizes explicitly the customary right of "anticipatory self-defense" under international law and which expands this right under American legal practice. But what do we really know about anticipatory self-defense? International law has multiple authoritative sources, including international custom. Although the written law of the U.N. Charter reserves the right of self-defense to states that have already suffered an attack (Article 51), equally valid customary law permits a first use of force if the danger posed is "instant, overwhelming, leaving no choice of means and no moment for deliberation." Drawn from an 1837 event known as the Caroline Incident, which concerned the unsuccessful rebellion in Upper Canada against British rule, this doctrine builds upon the 17th-century classic formulation of Dutch scholar Hugo Grotius: Self-defense, says "The Law of War and Peace" (1625), may be permitted "not only after an attack has already been suffered, but also in advance, where the deed may be anticipated." Later, in his classic text of 1758, "The Right of Self-Protection and the Effects of the Sovereignty and Independence of Nations," Swiss jurist Emmerich de Vattel affirms: "A nation has the right to resist the injury another seeks to inflict upon it, and to use force and every other just means of resistance against the aggressor." In short, Article 51 of the U.N. Charter limiting self-defense to circumstances following an attack does not override the customary right of anticipatory self-defense. …

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