Preemption

Friday, October 4, 2002
Last modified: Tue Nov 18 10:26:39 CST 2003

All of us have heard this term 'preventive war' since the earliest days of Hitler. I recall that is about the first time I heard it. In this day and time...I don't believe there is such a thing; and, frankly, I wouldn't even listen to anyone seriously that came in and talked about such a thing.

President Dwight Eisenhower, 1953, upon being presented with plans to wage preventive war to disarm Stalin's Soviet Union

Our position is that whatever grievances a nation may have, however objectionable it finds the status quo, aggressive warfare is an illegal means for settling those grievances or for altering those conditions.

Supreme Court Justice Robert Jackson, the American prosecutor at the Nuremberg trials, in his opening statement to the tribunal

And what an immense mass of evil must result, and indeed does result, from allowing men to assume the right of anticipating what may happen.

Leo Tolstoy, The Kingdom of God is Within You

The president has adopted a policy of "anticipatory self-defense" that is alarmingly similar to the policy that imperial Japan employed at Pearl Harbor on a date which, as an earlier American president said it would, lives in infamy.

Franklin D. Roosevelt was right, but today it is we Americans who live in infamy.

Arthur Schlesinger Jr.

Self-defense is an inherent right of states that is often used to justify armed attacks. As Francis A. Boyle has pointed out in reference to the Bush administration's "preemption doctrine", preemptive self-defense was the argument advanced by the defense lawyers for the Nazis at the Nuremburg tribunals to justify their wars of aggression. This argument was rejected, and the war criminals were sentenced to death by hanging, life imprisonment, and some lesser terms. The indictments were for conspiracy to commit crimes against peace; planning, initiation, and waging of wars of aggression; war crimes; and crimes against humanity.

David Krieger and Richard Falk, Professor Emeritus of International Law at Princeton University, wrote the following in a recent article about a war against Iraq:

From these perspectives, under present conditions, it is clear that if the United States goes ahead and wages war against Iraq it will be guilty of what international lawyers call aggressive war, which was one of the principal charges leveled against surviving Axis leaders at the Nuremberg and Tokyo war crimes tribunals after World War II.

In the 1986 Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), the United States attempted to use the argument of collective self-defense to justify its actions against Nicaragua. In paragraph 2 of the operative parts of the judgement in this case, the International Court of Justice rejected the argument of collective self-defense advanced by the United States:

THE COURT

[...]

(2) By twelve votes to three,

Rejects the justification of collective self-defence maintained by the United States of America in connection with the military and paramilitary activities in and against Nicaragua the subject of this case;

IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrière; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;

AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.

The Judgement of the Nuremberg Tribunal asserted that "to initiate a war of aggression [...] is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole." Some international lawyers have publicly stated that the Bush administration's planned war on Iraq would be a war of aggression. At the same time, the Bush administration has worked to sabotage the formation of the International Criminal Court, including the act of "unsigning" President Clinton's signature from the Rome Statute, which entered into force on 1 July 2002.

On June 16, 1998, Benjamin B. Ferencz -- a former prosecutor at the Nuremberg War Crimes Trials -- addressed the United Nations Conference on the Establishment of an International Criminal Court:

Over fifty years ago, I stood in a courtroom at Nuremberg and accused 22 highranking German Storm Troopers of deliberately murdering more than a million men, women and children. The defenseless victims were slaughtered because they did not share the race or creed of their executioners. I asked the tribunal to affirm the legal right of every human being to live in peace and dignity. It was a plea of humanity to law - a plea that needs repeating.

Unanimous affirmation of the Nuremberg principles by the United Nations in 1947 implied a promise that "never again" would aggression, war crimes and crimes against humanity go unpunished. War crimes trials after World W II came to grips with the past. We have yet to come to grips with the future.

I have come to Rome to plead for a more humane world order.

Nuremberg was the beginning of a process. Failure to build on its precedents has cost the world dearly.

[...]

Ever since the judgment at Nuremberg, it has been undeniable that aggressive war is not a national right but an international crime. War is the soil from which the worst human rights violations invariably grow. The UN Charter prescribes that only the Security Council can determine when aggression by a state has occurred but it makes no provision for criminal trials. No criminal statute can expand or diminish the Council's vested power. Only an independent court can decide justly whether any individual is innocent or guilty. Excluding aggression from international judicial scrutiny is to grant immunity to those responsible for "the supreme international crime" - omission encourages war rather than peace.

[...]

Hope is the engine that drives human endeavor. It generates the energy needed to achieve the difficult goals that lie ahead. Never lose faith that the dreams of today for a more lawful world can become the reality of tomorrow. Never stop trying to make this a more. humane universe. If we care enough and dare enough, an international criminal court - the missing link in the world legal order - is within our grasp. The place to act is here and the time to act is now!

Steven R. Ratner defines aggression as follows: "Aggression in international law is defined as the use of force by one State against another, not justified by self-defense or other legally recognized exceptions."

Black's Law Dictionary, seventh edition, defines aggression as follows:

Int'l law. The use of armed force by a country against the sovereignty, territorial integrity, or political independence of another country, or in a manner inconsistent with the Charter of the United Nations. • Acts falling within this definition include declaring war against, invading, attacking, blockading, or landing troops on another country's territory.

According to Jordan J. Paust, Law Foundation Professor at the University of Houston Law Center, "Preemptive Self-Defense is Widely Condemned":

Predominant trends in decision demonstrate widespread expectations and intense demands that the use of armed force merely for preemptive or retaliatory purposes is inconsistent with the purposes of the United Nations Charter and is proscribed under Article 2 (4) of the Charter.1

1 See, e.g., Ian Brownlie, International Law at the Fiftieth Anniversary of the United Nations Charter, 255 REC. DES COURS 203-04 (1995); Michael Byers, Terrorism, The Use of Force and International Law After 11 September, 51 INT’L & COMP. L.Q. 401, 401 & n.1, quoting U.N. S.C. Res. 188 (9 Apr. 1964), U.N. Doc. S/5650 ("The Security Council... [c]ondemns reprisals as incompatible with the purposes and principles of the United Nations."), 410 ("Until 11 September, any right to pre-emptive action was widely contested...firmly rejected") (2020); Jonathan I. Charney, The Use of Force Against Terrorism and International Law, 95 AM. J. INT’L L. 835, 835 (2001); Tom J. Farer, Beyond the Charter Frame: Unilateralism or Condominium?, 96 AM. J. INT’L L. 359, 360 (2002); Sean D. Murphy, Terrorism and the Concept of "Armed Attack" in Article 51 of the U.N. Charter, 43 HARV. INT’L L.J. 41, 42 (2002); Jordan J. Paust, Responding Lawfully to International Terrorism: The Use of Force Abroad, 8 WHITTIER L. REV. 711, 713, 717-19 & n.21, 723 (1986); Sreenivasa Rao Pemmaraju, International Organizations and Use of Force, in 2 LIBER AMICORUM JUDGE SHIGERU ODA 1575, 1578-79 & n.10 (Nisuke Ando, Edward McWhinney, Rudiger Wolfrum eds. 2002) (anticipatory self-defense is impermissible); Gregory M. Travalio, Terrorism, International Law, and the Use of Military Force, 18 WIS. INT’L L.J. 145, 157 (2000) (Israeli retaliatory raids have been constantly criticized by the U.N. Security Council or the General Assembly); U.N. S.C. Res. 573 (4 Oct. 1985) (condemnation of Israeli reprisal against the PLO Headquarters in Tunis, Tunisia as an "act of armed aggression perpetrated by Israel against Tunisian territory in flagrant violation of the Charter of the United Nations, international law and norms of conduct"); Pemmaraju, supra note 1, at 1578-19 & n.10 (anticipatory self-defense is impermissible); but see W. Michael Reisman, International Legal Responses to Terrorism, 22 HOUS. J. INT’L L. 3, 18-19 (1999). The United States abstained with respect to U.N. Security Council Resolution 573 in 1985, noting the "escalating force and counter-force," "the rising spiral of violence" and Israel’s "responses to [prior] terrorist attacks," but stated that the U.S. strongly supports "the principle that a state subjected to continuing terrorist attacks may respond with appropriate use of force to defend against further attacks" as "an aspect of the inherent right of self-defense recognized in the United Nations Charter." See Statement of Ambassador Vernon A. Walters, reproduced in Reprisals, 80 AM. J. INT’L L. 165, 166-67 (1986).

International law professor Francis A. Boyle wrote the following in the introduction to his book The Criminality of Nuclear Deterrence:

Given his "priors", the letter by Negroponte to the Security Council was not surprising. It basically said that the United States reserved its right to use force in self-defense against any state that the Bush Jr. administration felt the need to victimize in order to fight their holy war against international terrorism as determined by themselves. Soon thereafter a reporter from the San Francisco Chronicle asked me if there was any precedent for the sweeping position being asserted by Negroponte that the United States is reserving the right to go to war in self-defense against 30 to 60 other states as determined solely by the United States. I responded that there is indeed one very unfortunate precedent, recorded in the Nuremberg Judgment of 1946.

It was not surprising that this mass murderer Negroponte was making an argument similar to that put forth in defense of the Nazi war criminals before the Nuremberg Tribunal with respect to the non-applicability of the Kellogg-Briand Pact of 1928. This "Paris Peace Pact" had formally renounced war as an instrument of national policy. Article 1 provided: "The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another." However, when signing the pact, Germany entered a reservation to the effect that it reserved the right to go to war in self-defense as determined by itself.

So when in 1945 the Nazi war criminals were prosecuted for crimes against peace on the basis of the Kellogg-Briand Pact, they basically argued that the Second World War was a war of self-defense as determined by the Nazi government, and therefore that the Nuremberg Tribunal had no competence to determine otherwise because of Germany's self-judging reservation. Needless to say, the Tribunal summarily rejected this preposterous argument and later convicted and sentenced to death several Nazi war criminals for the commission of crimes against peace, among other international crimes.


The Robert Jackson and Dwight Eisenhower quotations appeared in Jonathan Schell's January 13, 2003 article entitled The Case Against the War.

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Last modified: Tue Nov 18 10:26:39 CST 2003