Preemptive War Essay

Not to be confused with preventive war, namely an anticipatory war in the face of a less immediate threat.

"Preemptive strike" redirects here. For other uses, see Preemptive strike (disambiguation).

A preemptive war is a war that is commenced in an attempt to repel or defeat a perceived imminent offensive or invasion, or to gain a strategic advantage in an impending (allegedly unavoidable) war shortly before that attack materializes. It is a war that preemptively 'breaks the peace'.

The term 'preemptive war' is sometimes confused with the term 'preventive war'. The difference is that a preventive war is launched to destroy the potential threat of the targeted party, when an attack by that party is not imminent or known to be planned. A preemptive war is launched in anticipation of immediate aggression by another party.[1] Most contemporary scholarship equates preventive war with aggression, and therefore argues that it is illegitimate.[2] The waging of a preemptive war has less stigma attached than does the waging of a preventive war.[3]

The initiation of armed conflict: that is being the first to 'break the peace' when no 'armed attack' has yet occurred, is not permitted by the UN Charter, unless authorized by the UN Security Council as an enforcement action. Some authors have claimed that when a presumed adversary first appears to be beginning confirmable preparations for a possible future attack, but has not yet actually attacked, that the attack has in fact 'already begun', however this opinion has not been upheld by the UN.[4][5]

Theory and practice of preemptive war[edit]

Prior to World War I[edit]

As early as 1625, Hugo Grotius characterized a state's right of self-defense to include the right to forestall an attack forcibly.[6] In 1685, the Scottish government conducted a preemptive strike against the Clan Campbell, called the Argyll Whigs.[7] In 1837, a certain legal precedent regarding preemptive wars was established in the Caroline affair when British forces in Canada crossed the United States border and killed several Canadian rebels and one American citizen who were preparing an offensive against the British in Canada. The United States rejected the legal ground of the Caroline case. In 1842, US Secretary of StateDaniel Webster said that the necessity for forcible reaction must be "instant, overwhelming, leaving no choice of means, and no moment for deliberation." That formulation is part of the Caroline test, which "is broadly cited as enshrining the appropriate customary law standard."[8]

World War I (1914–1918)[edit]

Austro-Hungarian Chief of the General Staff Franz Conrad von Hötzendorf argued for a preemptive war against Serbia in 1913.[9] Serbia had the image of an aggressive and expansionist power and was seen as a threat to Austria-Hungary in Bosnia and Herzegovina.[9] The assassination of Archduke Franz Ferdinand (June 1914) justified Austria-Hungary to attack,[10] leading to World War I.

During the course of the destructive and costly World War I, for the first time in history, the concept of "the war to end war" began to be seriously considered.[11] As a further expression of that hope, upon the conclusion of the war, the League of Nations was formed. Its primary aim was to prevent war, as all signatories were required to agree to desist from the initiation of all wars, preemptive or otherwise. All of the victorious nations emerging out of World War I eventually signed the agreement, with the notable exception of the United States.[12]

League of Nations period (1919–1939)[edit]

During the 1920s, the League peaceably settled numerous international disputes, and was generally perceived as succeeding in its primary purpose. It was only in the 1930s that its effectiveness in preventing wars began to come into question. Such questions began to arise when it first became apparent in 1931 that it was incapable of halting aggression by Japan in Manchuria. In the Mukden Incident, Japan claimed to be fighting a 'defensive war' in Manchuria, attempting to 'preempt' supposedly aggressive Chinese intentions towards the Japanese. According to the Japanese, the Chinese had started the war by blowing up a railway line near Mukden, China. Therefore, the Chinese were the aggressors, and the Japanese were merely 'defending themselves'. A predominance of evidence has since indicated that the railway had in fact most probably been blown up by Japanese operatives.[13]

In 1933, the impotency of the League became more pronounced when notices were provided by Japan and Germany that they would be terminating their memberships in the League. Italy shortly followed suit and exited the League in 1937.[14] Soon, Italy and Germany also began engaging in militaristic campaigns designed to either enlarge their borders or to expand their sphere of military control, and the League was shown to be powerless to stop them.[14] The perceived impotency of the League was a contributing factor which eventually led to the full outbreak of World War II in 1939.[15] The start of World War II is generally dated from the event of Germany's invasion of Poland. It is noteworthy that Germany claimed at the time that its invasion of Poland was in fact a 'defensive war,' as it had allegedly been invaded by a group of Polish saboteurs, signaling a potentially larger invasion of Germany by Poland that was soon to be under way. Thus, Germany was left with no option but to preemptively invade Poland, thereby halting the alleged Polish plans to invade Germany. It was later discovered that Germany had fabricated the evidence for the alleged Polish saboteurs as a part of the Gleiwitz incident.

World War II period (1939–1945)[edit]

Once again, during the course of the even more widespread and lethal World War II, the hope of somehow definitively ending all war (including preemptive war) was seriously discussed. That dialogue ultimately resulted in the re-establishment of the successor organization to the old League, namely the United Nations (UN). As with the League, the primary aim and hope of the new UN was the prevention of all wars (including preemptive wars). Unlike the previous League, the organization had the support of the United States.

In analyzing the many components of World War II, if one might consider as separate individual wars, the various attacks on previously neutral countries, one might consider the attacks against Iran and Norway to have been preemptive wars.

In the case of Norway, the 1940 German invasion of Norway in the 1946 Nuremberg trials the German defense argued that Germany was "compelled to attack Norway by the need to forestall an Allied invasion and that her action was therefore preemptive."[16] The German defence was referring to Plan R 4 and its predecessors. Norway was vital to Germany as a transport route for iron ore from Sweden, a supply that Britain was determined to stop. One adopted British plan was to go through Norway and occupy cities in Sweden.[17][18] An Allied invasion was ordered on March 12, and the Germans intercepted radio traffic setting March 14 as deadline for the preparation.[19] Peace in Finland interrupted the Allied plans, but Hitler became, rightly, convinced that the Allies would try again, and ordered operation Weseruebung.

The new Allied plans were Wilfred and Plan R 4. The plan was to provoke a German reaction by laying mines in Norwegian waters, and once Germany showed signs of taking action UK troops would occupy Narvik, Trondheim and Bergen and launch a raid on Stavanger to destroy Sola airfield. However, "the mines were not laid until the morning of 8 April, by which time the German ships were advancing up the Norwegian coast."[20] However The International Military Tribunal at Nuremberg determined that no Allied invasion was imminent, and therefore rejected the German argument that Germany was entitled to attack Norway.[21]

In the case of Iran, in which Soviet and British forces preemptively invaded this country, see Anglo-Soviet invasion of Iran.

Pre-September 11, 2001 United Nations period (1945–2001)[edit]

See also: Pre-emptive nuclear strike

Israel incorporates preemptive war in its strategic doctrine because of its lack of strategic depth.[22] The Six-Day War, which began when Israel launched a successful attack on Egypt on June 5, 1967, has been widely described as a preemptive war[23][24][25][26] and is, according to the United States State Department, "perhaps the most cited example [of preemption]".[27] Others have alternatively referred to it as a preventive war.[28] Some have referred to the war as an act of "interceptive self-defense."[29] According to that view, no single Egyptian step may have qualified as an armed attack, but Egypt’s collective actions made clear that she was bent on armed attack against Israel. One academic has claimed that Israel's attack was not permissible under the Caroline test, as that there was no overwhelming threat to Israel's survival.[30]

Post September 11, 2001 Bush administration period (2002–2008)[edit]

The doctrine of preemption gained renewed reputation following the U.S. invasion of Iraq. Bush administration mainly claimed for the necessity to intervene to prevent Saddam Hussein from deploying weapons of mass destruction (WMD) prior to launching an armed attack. At that time, U.S. decision-makers claimed Saddam's WMD might be given to terrorists groups and claimed that security of the nation was at a great risk. Soon the Congress passed its joint resolution in October 2002 authorizing the president to use military force against Saddam Hussein's regime.[31] However, it was later confirmed that no nuclear weapons or biological weapons capability existed and that Bush administration's suspicion was mistaken. Some questioned the true intention of Bush administration for invading Iraq, based on possibility of retaliation on the terrorist attacks which occurred on September 11, 2001. It is still unclear whether the U.S. invasion of Iraq is legally justifiable and, at the same time, whether Iraq’s resistance to the attack is justifiable.

Arguments for preemptive war made during the Bush administration[edit]

Sofaer's four elements[edit]

The scholar Abraham D. Sofaer identified four key elements for justification of preemption:[32]

  1. The nature and magnitude of the threat involved;
  2. The likelihood that the threat will be realized unless preemptive action is taken;
  3. The availability and exhaustion of alternatives to using force; and
  4. Whether using preemptive force is consistent with the terms and purposes of the U.N. Charter and other applicable international agreements.
Walzer's three elements[edit]

Professor Mark R. Amstutz (citing Michael Walzer) adopted a similar but slightly varied set of criteria and noted three factors when evaluating the justification of a preemptive strike.[33]

  1. The existence of an intention to injure;
  2. The undertaking of military preparations that increase the level of danger; and
  3. The need to act immediately because of a higher degree of risk.
The counter proliferation self-help paradigm[edit]

The proliferation of WMDs by rogue nations gave rise to a certain argument by scholars concerning preemption.[34][35][36] They argued that the threat need not be "imminent" in the classic sense and that the illicit acquisition of these weapons, with their capacity to unleash massive destruction, by rogue states, created the requisite threat to peace and stability as to have justified the use of preemptive force. NATO's Deputy Assistant Secretary General for WMD, Guy Roberts cited the 1962 Cuban Missile Crisis, the 1998 US attack on a Sudanese pharmaceutical plant, (identified by US intelligence to have been a chemical weapons facility) and the 1981 Israeli attack on Iraq's nuclear facility at Osirak as examples of the counter-proliferation self-help paradigm.[37] Regarding the Osirak attack, Roberts noted that at the time, few legal scholars argued in support of the Israeli attack but notes further that, "subsequent events demonstrated the perspicacity of the Israelis, and some scholars have re-visited that attack arguing that it was justified under anticipatory self-defense."[38] Following the U.S. invasion of Iraq in 2003, American forces captured a number of documents detailing conversations that Sadaam Hussein had with his inner sanctum.[39] The archive of documents and recorded meetings confirm that Hussein was indeed aiming to strike at Israel.[39] In a 1982 conversation Hussein stated that, "Once Iraq walks out victorious, there will not be any Israel." Of Israel's anti-Iraqi endeavors he noted, "Technically, they [the Israelis] are right in all of their attempts to harm Iraq."[39]

Post–Bush administration period (2009–present)[edit]

Since the departure of the Bush administration, the Obama administration has made no such claims to retain the right to declare a preemptive war, but has adopted and continued many polices of the Bush Doctrine.[40]

Intention[edit]

The intention with a preemptive strike is to gain the advantage of initiative and to harm the enemy at a moment of minimal protection, for instance, while vulnerable during transport or mobilization; however the concept of preemptive war can be used to start a war by claiming that the nation would soon be under attack and therefore had to defend itself. The concept is controversial because it can be used as a justification to start a war on questionable grounds.

While the labeling of an attack (on strategic and tactical levels) seldom is controversial, it is much more so in regard to the initiation of a war.

In his work titled "Rationalist Explanations for War", James Fearon attributes the use of preemptive strikes by rational states to both offensive advantages and commitment problems between states.[41] When a nation possesses a first strike advantage and believes itself to have a high probability of winning a war, then there is a narrower de facto bargaining range between them and an opposing country for peaceful settlements. In extreme cases, if the probability of winning minus the probable costs of war is high enough, then no self-enforcing peaceful outcome exists. In his discussion of preventative war arising from a commitment problem, Fearon builds an infinite-horizon model expected payoffs from period t on are (pt/(l - δ)) - Ca for state A and ((1 -pt)/(l - δ)) - Cb for state B, where Ca and Cb are costs incurred the respective states and δ is the state discount of the future period payoffs. This model shows that a peaceful settlement can be reached at any period that both states prefer, but strategic issues arise when there is no credible third-party guaranteer of the both states committing to a peaceful foreign policy. If there is going to be a shift in the military power between states in the future and no credible restraint is placed on the rising military power not to exploit its future advantage, then it is rational for the state with declining military power to use a preventative attack while it has a higher chance of winning the war. Fearon points out that the declining state attacks not due to fear of a future attack, but because the peace settlement in the future would be worse for it than in the current period. The lack of trust that leads to a declining power's preemptive strike does not stem from uncertainty about intentions of different nations, but rather "the situation, the structure of preferences and opportunities, that gives one party incentive to renege" on its peaceful cooperation and exploit its increased military potential in the future to win a more profitable peace settlement for itself. Thus, Fearon shows that preemptive military action is taken by nations when there is an unfavorable shift in military potential in the future which leads to a shrinking bargain range for a peaceful settlement in the current period, but with no credible commitment by the other party to not exploit their improved military potential in the future.

Legality[edit]

Further information: War of aggression, Jus ad bellum, and UN Charter

Article 2, Section 4 of the U.N. Charter is generally considered to be jus cogens (literally: "compelling law", in practice: "higher international law"), and prohibits all UN members from exercising "the threat or use of force against the territorial integrity or political independence of any state". But in the modern framework of the UN Charter, it is the phrase "armed attack occurs" in Article 51[42] that draws the line between legitimate and illegitimate military force.[31] Some scholars believe it is reasonable to assume that if no armed attack has yet occurred that no automatic justification for preemptive 'self-defense' has yet been made 'legal' under the UN Charter. In order to be justified as an act of self-defense, two conditions must be fulfilled which are widely regarded as necessary for its justification. The first of these is that actor must have believed that the threat is real, as opposed to (merely) perceived. The second condition is that the force used in self-defense must be proportional to the harm which the actor is threatened. When it comes to a situation where an armed attack is considered as a self-defense, it usually narrows realistic options for avoidance by nonviolent means such as negotiation, retreat, or calling upon higher authorities (such as the police or the UN).[43]

See also[edit]

References[edit]

  1. ^Beres, Louis Rene (1991–1992), On Assassination as Anticipatory Self-Defense: The Case of Israel, 20, Hofstra L. Rev., p. 321 
  2. ^Shue, Henry and Rhodin, David (2007). Preemption: Military Action and Moral Justification. Oxford University Press. p. 116. ISBN 978-0-19-923313-7
  3. ^Shue and Rodin 2007, p. 118.
  4. ^"The Implications of Preemptive and Preventive War Doctrines: a Reconsideration"(PDF). 2007. Retrieved 2010-12-02.  A US Army sponsored discussion of various justifications for preemptive, preventive and 'precautionary' war.
  5. ^"Adoption of Policy of Pre-emption Could Result in Proliferation of Uniliteral, Lawless Use of Force: By Kofi Annan". 2003. Retrieved 2010-12-02.  Kofi Annan discusses his unwillingness to accept proposed new changes in UN policy towards the use of preemptive force, and why.
  6. ^Beres, Louis R. (1991), Permissibility of State-Sponsored Assassination during Peace and War, The, 5, Temp. Int'l & Comp. L.J., p. 231 
  7. ^Thomas Heyck (27 September 2013). A History of the Peoples of the British Isles: From 1688 to 1914. Routledge. p. 29. ISBN 978-1-134-41521-2. 
  8. ^Duffy, Helen (2005). The 'War on Terror' and the Framework of International Law. Cambridge University Press. p. 157.ISBN 978-0521547352
  9. ^ abRichard L. DiNardo (14 April 2015). Invasion: The Conquest of Serbia, 1915: The Conquest of Serbia, 1915. ABC-CLIO. pp. 13–. ISBN 978-1-4408-0093-1. 
  10. ^Michael S. Neiberg (2007). The World War I Reader. NYU Press. p. 7. ISBN 978-0-8147-5832-8. 
  11. ^"United States History: Woodrow Wilson". 2010. Retrieved 1010-11-30.  Discussion of Woodrow Wilson's desire to make World War I the War to End All Wars.
  12. ^"Eleanor Roosevelt National Historic Site: League of Nations article". 2010. Retrieved 2010-11-30.  Article summarizing the primary objective of the League of Nations.
  13. ^"Mukden Incident and Manchukuo: C. Peter Chen". 2010. Retrieved 2010-11-30.  Details of the Mukden Incident
  14. ^ ab"League of Nations Timeline". 2006. Retrieved 2010-11-30.  A timeline of all major League events.
  15. ^"Factmonster Encyclopedia— League of Nations: Successes and Failures". 2010. Retrieved 2010-11-30.  Description of the demise of the League of Nations.
  16. ^Myres Smith McDougal, Florentino P. Feliciano, The International Law of War: Transnational Coercion and World Public Order" pp. 211, 212
  17. ^"COMMAND DECISIONS", CENTER OF MILITARY HISTORY DEPARTMENT OF THE ARMY WASHINGTON, D.C., 2000. URL p. 59 "The British plan which was adopted was more modest. While ostensibly intended to bring Allied troops to the Finnish front, it laid its main emphasis on operations in northern Norway and Sweden. The main striking force was to land at Narvik and advance along the railroad to its eastern terminus at Lulea, occupying Kiruna and Gallivare along the way. By late April two Allied brigades were to be established along that line."
  18. ^"COMMAND DECISIONS", CENTER OF MILITARY HISTORY DEPARTMENT OF THE ARMY WASHINGTON, D.C., 2000. URL p. 66, 67 "The British held back two divisions from France, intending to put them into the field in Norway, and planned to expand their force eventually to 100,000 men. The French intended to commit about 50,000. The British and French staffs agreed that the latter half of March would be the best time for going into Norway;"
  19. ^"COMMAND DECISIONS", CENTER OF MILITARY HISTORY DEPARTMENT OF THE ARMY WASHINGTON, D.C., 2000. URL p.67,68 "The objectives were to take Narvik, the railroad, and the Swedish ore fields;" "an intercepted radio message setting 14 March as the deadline for preparation of transport groups indicated that the Allied operation was getting under way. But another message, intercepted on the 15th, ordering the submarines to disperse revealed that the peace [in Finland] had disrupted the Allied plan."
  20. ^"COMMAND DECISIONS", CENTER OF MILITARY HISTORY DEPARTMENT OF THE ARMY WASHINGTON, D.C., 2000. URL p. 68
  21. ^"http://www.abanet.org/irr/hr/winter03/lawregulatingresorttoforce.html". Archived from the original on 2009-10-14. 
  22. ^"Strategic Doctrine - Israel". Federation of American Scientists. 25 May 2000. Retrieved 27 January 2014. 
  23. ^The Six Day War is, "A classic example of preemptive war." Henry Shue, David Rodin Preemption: military action and moral justification
  24. ^"Classic examples of preemptive wars include the July Crisis of 1914 and the Six Day War of 1967 in which Israel preemptively attacked Egypt...." Karl P. Mueller Striking first: preemptive and preventive attack in U.S. national security
  25. ^"The Six Day War between Israel and alliance of Egypt, Syria, Jordan and Iraq was an example of preemption." And, "It exemplifies preemption." Charles W. Kegley, Gregory A. Raymond The Global Future: A Brief Introduction to World Politics
  26. ^"Preemptive attack is morally justified when three conditions are fulfilled: The existence of an intention to injure, the undertaking of military preparations that increase the level of danger, and the need to act immediately because of a higher degree of risk. Since these conditions were met in Israel's Six Day War, Israel's preemptive attack on Egypt on June 5, 1967 was a legitimate act of self-defense." Mark R. Amstutz International Ethics: Concepts, Theories, and Cases in Global Politics
  27. ^"The United States has often walked a fine line between preemption and prevention. In fact there have only been a handful of clear-cut cases of military preemption by any states in the last 200 years. (Israeli preemption in the Six Day War of 1967 is perhaps the most cited example)" U.S. National Security Strategy: a New Era U.S. Department of State (2002)
  28. ^Choice or Necessity (New York Times, May 8, 2009)
  29. ^Distein, Yoram, War, Aggression and Self-Defense p. 192, Cambridge University Press (2005)
  30. ^"The closest case that might have, but is now regarded as not having met the Caroline test, was Israel's first strike against Egypt in 1967. Few regarded it as a good example of a permissible anticipatory attack under the Caroline test, especially after it became clear following the attack that there was no overwhelming threat that justified the attack to ensure Israel's survival. Gathii, James Thuo. "Assessing Claims of a New Doctrine of Preemptive War Under the Doctrine of Sources." Osgoode Hall Law Journal, Vol. 43, No. 1, pp. 1–34, 2005.
  31. ^ abGeorge, and Jens Ohlin. Defending Humanity. New York: Oxford University Press, 2008. Print.
  32. ^Sofaer Abraham D (2003). "On the Necessity of Pre-emption". European Journal of International Law. 14 (2): 220. 
  33. ^Mark R. Amstutz, International Ethics: Concepts, Theories, and Cases in Global Politics
  34. ^Col Guy Roberts, USMC (Ret) 27 Denver Journal of International Law & Policyy 483
  35. ^Steven C. Welsh, Preemptive War and International Law Center for Defense Information, 5 December 2003
  36. ^Kacerauskis pp. 84–85
  37. ^Roberts, n. 528–536
  38. ^Roberts n. 530–532
  39. ^ abcGordon, Michael, R. (25 October 2011). "Papers From Iraqi Archive Reveal Conspiratorial Mind-Set of Hussein". New York Times. 
  40. ^Krauthammer, Charles (23 May 2011). "Obama adopts the Bush Doctrine". Chicago Tribune. 
  41. ^Fearon, James (1995). "Rationalist Explanations for War". International Organization. 49: 379–414. doi:10.1017/s0020818300033324. 
  42. ^"https://www.un.org/en/documents/charter/chapter7.shtml/". 
  43. ^David, and Henry Shue. Preemption: Military Action and Moral Justification. New York: Oxford University Press, 2007. Print.

External links[edit]

Look up prevenge in Wiktionary, the free dictionary.
Japanese experts inspect the scene of the 'railway sabotage' at Mukden on South Manchurian Railway
Israeli Air Force personnel inspect the wreckage of an Egyptian aircraft shot down over Sinai during the Six-Day War.
Israeli Air Force F-16A Netz 107 with 6.5 aerial victory marks and Osirak bombing mark

Pre-emptive war is universally recognized as an anticipatory use of force. Walzer acknowledges that pre-emptive force is when both individuals and states defend themselves against violence that is imminent but not actual; they can fire the first shots if they know themselves about to be attacked. (2006: 74). “…there must be shown a necessity of self-defence…instant, overwhelming, leaving no choice of means, and no moment for deliberation.” (Berkely 1968).  This would permit the state to do little more other than to respond to an attack once the targeted state had seen it coming but before it had felt its impact. Pre-emption then, is like a reflex action “a throwing up of ones arms at the very last minute”. (Walzer, 2006: 75). Despite the definition for the terms of a pre-emptive war, whether or not it is justified has become a complex and contradicting subject for states. There is the issue of morality, abiding by international law and comprehending the definition of “imminent threat”. The main problems here are that states can misjudge “threat”. What really constitutes an imminent threat? It is this confusion and blurred definition which leads to states acting out of aggression and uncertainty rather than a solid justified move which can constitute a pre-emptive war. This links in with just and unjust wars which are explained by Walzer. Pre-emptive force can be headlined under legitimate and illegitimate force. Using liberal and realist theorists together with cases whereby states have used “pre-emptive” force to legitimize their actions, one can come to the judgement of whether pre-emptive war can ever be justified. In my opinion, pre-emptive force can certainly be justified supporting internal states duty of “responsibility to protect”. However, because states have abused this use of force against another due to an unclear overview in International Law and the general dislike of war and its implications – “you don’t prevent anything by war….only  peace” (US President Truman 1950), justification can appear to be highly controversial and disliked. As Waltz commented, pre-emptive war is either about “strategic or morals… one or the other”.

To begin with, the justification of something is usually correlated with legality. Surely, if something is lawful then it is moral and justified. This, of course, reaches contradictory conclusions. However, in the case of pre-emptive use of force, to understand it’s legality under International Law and supported by the UN Charter, we can establish a better understanding of its justification. However, it must be noted that International Law on pre-emptive force is very limited and difficult to comprehend thus, it is my belief that it due to this blurred explanation has led to states abusing the right of pre-emptive force. The complications arise at Article 51 in International law which states the right to self –defence. It is controversial whether this is a narrow right, available only in response to an armed attack or whether it allows force in protection of nationals abroad or in response to terrorist attacks.  The UN Charter prohibits the use of force by states in Article 2(4), but this has not prevented over 100 major conflicts since 1945. States tend to use international law to explain and justify their behaviour (Evans, 2006: 589). It declares that “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 UN”. But, the main exception is self defence (Evans:2006, 598). But, this does not identify what exactly constitutes as self defence. When is self defence appropriate? How can one differentiate self defence from hegemonic desires?

This links in with threat and the use of force. The International Court of Justice was faced with questions to the meaning of “threat of force” but limited itself to the conclusion that a threat of force is unlawful where the actual use of the force threatened would itself be unlawful; the Court refused to find that the mere possession of nuclear weapons was an unlawful threat of force. This does, however, provide some empirical evidence that the mere possession of nuclear weapons for example, as threatening as they appear, cannot be an actual imminent threat, so in the case of Iran for example, unless there is evidence for the use of “potential nuclear weapons” to be used against another state, the possession of them is not enough for another state to legally strike against them. But, importantly, it does recognize 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 UN…” (UN Charter Article 51).  This can be interpreted as an exhaustive statement of the right to self-defence or whether there is a wider customary law right of self-defence going beyond the right to respond to an armed attack. Some argue that an “inherent right” in Article 51 preserves a customary law right of self defence other than against an armed attack thus supporting pre-emptive force. (Bowett, 1958; Arend and Beck, 1993). Bowett argues for a right of anticipatory self defence. Evans argues that it all depends on how one interprets the charter on self defence and pre-emptive force. The main problem for this wide interpretation held by the UN charter is that it does not clearly define when self defence is necessary thus the justification and legality of states actions is indistinct. This is demonstrated by the fact that in the Nicaragua case, no provision on self-defence could be included in the UN GA and the ICJ and the case was left unresolved. The problem with the irresolution of such cases means that other states have no model on what is just and what is unjust, legal and illegal. However, other examples demonstrate a much more knowledgeable approach in understanding the justifications of pre-emptive war.

Daniel Webster for example, shows an effective way of analysing the implications for a legal and just pre-emptive strike to take place. After the Caroline case 1842, he proposed that states can resort to self defence only if it is a necessity “…instant, overwhelming, leaving no choice of means, and no moment for deliberation” (Berkely, 1968). If this is the case, if pre-emptive strike is the last option, if there is no way to compromise, then surely this is the only means for peace thus reflecting that in such circumstances, the targeted state is justified in its actions. But it is essential to note that this paradigm is still restrictive insofar as what one perceives the necessary needs to use force before the aggressor, another state may perceive this differently. So, to an extent, the necessity of the use of force depends on individual states and this is clearly very problematic. This is reflected by Hobbes’ views who stated that “war is justified by fear alone and not by anything other states actually do or any signs that they give of their malign intentions”. This therefore suggests that prudent rulers assume malign intentions. Interestingly, this can be linked to the modern day circumstances between Iran and the USA which will be explained further. But together with the international law outline, understanding the imminent threat helps to comprehend whether or not pre-emptive force is justly done. Imminent threat means “to hold out or offer (some injury) by way of a threat, to declare one’s intention of inflicting injury”. (Oxford Dictionary). Walzer makes the key point that “political ranting” is not a threat; injury must be “offered” in some material sense. Military preparation or possession of nuclear weapons for example does not count as a threat unless it violates some formally or tactically agreed-upon limit. This therefore demonstrates that despite the appearance of a threatening state, the threat has to be directly inflicted upon another and the clear intention to harm another state thus demonstrates the justifiable move of pre-emptive force.

Past examples of “pre-emptive” force provide solid examples of what is generally lawful and just and what was condemned. Indeed, such examples can be compared with the current USA and Iran situation and whether this is a case for pre-emption or not. The threat has to be imminent. Israel and the six day war June 5th 1967 is a chief example of pre-emptive force which was, according to the UN Charter, justified. Why? Because the threats were incontestably imminent. Egypt and other Arab states began moving troops to the Israeli borders, occupying the Sinai Peninsula, the west bank and Gaza strip. This was a clear strategy to surround Israel and consequently was a clear threat to the freedom of Israel. Israel claimed its attack was defensive in nature and necessary to forestall an Arab invasion. (Ackerman, 2003: 5). This reflects Walzer’s case for a just pre-emptive war on the grounds of these three pillars. First, a manifest intent to injure, second, a degree of active preparation that makes that intent a positive danger, and third, a general situation in which waiting or doing anything other than fighting greatly magnifies the risk. (2006, 88). Israel really was in danger and it was Nasser’s intention to put it in danger. Therefore, Israel’s first strike approach is a clear case of legitimate anticipation. This means that we are acknowledging that there are certain threats with which no nation can be expected to live by and through this understanding, we can comprehend the notion of aggression, which means separating pre-emptive force on justifiable terms and a state just acting out of aggression and hegemonic intentions, thus the amount of threat demonstrates that pre-emptive force is perfectly justifiable. As Walzer famously quoted, “a state under threat is like an individual hunted by an enemy who has announced his intention of killing or injuring him. Surely such a person may surprise his hunter, if he is able to do so” (2006, 85).

This links in with the states responsibility to protect. State sovereignty should not be seen as a shield. If another state has shown intentions to act aggressively and invade another state, then it is the states duty to protect. Looking back on Israel’s case in 1967, the whole country was in jeopardy. Despite an attack yet to occur, the anticipation of it led to a lack of structure and organization within the internal structure of Israel. If there is chaos in the state because of the potential outside threats, then this could result in whole social communities and economies deteriorating thus affecting other states and becoming a global problem. This would then suggest that it is the states duty to maintain peace among other states as well as itself, thus a pre-emptive move to prevent such atrocities happening would be responsible and just. Israel was justified because the external threats had severe consequences on the internal structure of Israel economically and socially and so if any state was in this situation, it is the states duty to protect themselves and others, supporting my belief that when the threat has the potential to cause intense problems before the attack has initially started, a pre-emptive strike is justified. Further to this, the human development report 1994 required: Economic security, food security, health security, Environmental security, personal security (protecting people from physical violence, whether from the state or external states), and political security. As demonstrated with the Israeli case, if these are being threatened then it is again, the states responsibility to protect themselves from further disaster. In my view, in terms of whether or not to use pre-emptive force, there are perhaps no good choices, but it is better to make the least bad choice, for the greater good.

As much as pre-emptive war can be justified and seen as the responsible choice to make, as highlighted above, it does however, comprise of one particular severe problem. There is always the desirability to take action. If we judge pre-emptive on Waltz’ belief that states need to act out if they are threatened; “may not the “good” by doing nothing, make the triumph of “evil” possible?” (2001, 108). But, this is assuming that the “aggressor” is in fact in the wrong. This can be linked to Jeremy Bentham’s supportive view on pre-emptive war suggesting that it is necessary in order for states to “right” a “wrong”. This is where the complications arise. Who is in the right and who is wrong? Modern day wars, due to a more globalized world have resulted in a war between the western states and non-western states. Globalization has led to an interconnected world and institutions such as the UN, NATO and the EU means that states within these are essentially allies. They all have international relations with one another importing and external goods, and work together diplomatically. Non-western states however are seen as outsiders. The problem here is that it is human nature that when we are not familiar with one thing we fear it. It has become a notion of “us” and “them” thus because western states do not have very good relations with non-western states, we become unsure of their intentions. In other words, pre-emptive war could be misjudged greatly if we do not understand the “others” intentions.

A prime example of this is America and Iran. America has been threatening to use pre-emptive force against Iran because it assumes that Iran intends to use its possession of nuclear weapons against it. Presently, there is mass media attention to the potential threat in Iran. For example there is the organization “United Against Nuclear Iran” and scholars such as John Shalikashvili expressed in 2008 that the “West must be ready to resort to a pre-emptive nuclear attack to try to halt the imminent spread of nuclear weapons” (global research, 2008). However, despite these implications, Nuclear Intelligence Estimate on Iran in 2007 expressed that it was not a threat; “We judge with high confidence that Iran will not be technically capable of producing and reprocessing enough plutonium for a weapon before about 2015” (NIE, 2007). Furthermore, Iran has made no direct threats to the US about its intentions to attack it. Importantly, the USA, Israel, Britain, France and Russia all have possession of nuclear weapons but they are not seen as threats. A pre-emptive war can easily be mis-used and become a war against the non-western states. As Chomsky voiced, “Western powers can still resort to violence against the weak and defenceless, but not against each other” (2005: 71). Therefore, pre-emptive use of force needs to be critiqued and monitored in order for there not to be the dilemma of west versus non-western states. As explained before, a threat has to be direct and imminent in order for pre-emptive force to be justified. To assume a potential threat will result in miscalculations and discrimination against the other such as in the case of Iraq. This expresses the point that such an assumption would clearly be unjustified and unlawful because unlike Israel’s situation in 1964, Iran has not proceeded to threaten the USA or its allies. Importantly, it is because of the UN Charter and Webster’s definition of imminent threat, together with previous historical examples of legally justified pre-emptive force that means we have a much better understanding of states’ intentions thus institutions such as the UN can condemn a states for its move or support it if such a case of pre-emptive war is needed.

To conclude, despite the fact that pre-emptive war can involve states misusing it, due to international law, UN Charter together with theoretical approaches such as Waltz and Webster, together with justified examples such as Israel and unjustified such as in the case of Iraq and America and Iran, all of these have provided the knowledge of what circumstances can class as just for states to use pre-emptive force against the aggressor. If there is imminent threat against another state – actual intent to attack which results in problems within the targeted state, then it is technically lawful under the UN Charter thus it is justified. If the threat is imminent then one can be certain of an attack thus misjudging their intent would be slim if analysed correctly. Therefore my view supports Hugo Grotius’ belief of “it be lawful to kill him who is preparing to kill!”.

Bibliography

Ackerman, D. (2003 March). “CRS Report for Congress” International Law and the pre-emptive use of force against Iraq

Chomsky. N. (2005) Hegemony or Survival America’s Quest for Global Dominance Holt Paperbacks. First edition.

Chossudovsky. M. (2008 February) The US-NATO Preemptive Nuclear Doctrine: Trigger a Middle East Nuclear Holocaust to Defend “The Western Way of Life”.www.globalresearch.ca/index. Accessed March 4th 2011

Evans. Malcolm, (2006), “International Law”, London, Oxford University Press.

Grimmett,R. (2003 April) “CRS Report for Congress” US use of Pre-emptive Military Force.

Nuclear Intelligence Estimate (2007 November) “Iran:Nuclear Intelligence Estimate” available from http://www.dni.gov/press_releases/2007.    Accessed March 4th 2011.

Lang, F.A (2003) “Ethics and International Affairs”. Evaluating the pre-emptive use of force, Vol. 17. No. 1, Cambridge Council.

Waltz. K. (2001) “Man the state and War – a theoretical analysis” New York, Columbia University Press

Walzer.M (2006)” Just and unjust Wars” the 4th edition New York, Basic Books.

Written by: Charlotte Brandon
Written at: Royal Holloway, University of London
Written for: War and Security, Michael Williams
Date written: March 2011

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