Tags: What | Prevents | U.S. | Attack | Iraq

What Prevents U.S. Attack on Iraq

Tuesday, 08 January 2002 12:00 AM

The dilemma of what to do about Iraq has always sounded in the vagaries of what is recognized by the United Nations’ Charter and international law as acceptable means of self-defense. At the heart of the conundrum are the nettlesome buzzwords "pre-emptory attack,” or "anticipatory self-defense.”

And as soon as these watchwords appear in the mix, the "Caroline standard” is never far behind.

In 1837 British subjects destroyed an American vessel, the Caroline, in a U.S. port, justifying the act because the ship had been used in past American raids into Canadian territory.

The British claimed self-defense, but ultimately the dispute was decided in favor of the Americans, thanks to the statesmanship of no less a figure than Daniel Webster.

Secretary of State Webster offered the British a definition of "self-defense” that they could not reasonably refuse:

"There must be a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation. [The means of self-defense may involve] nothing unreasonable or excessive; since the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it.”

This has been a recognized rule in international law ever since – a fact not lost on Secretary of State Colin Powell and the Bush administration.

Intrinsic in the rule: The more time that passes between the attack and the military response, the less it appears to be self-defense.

The most often-cited example of "anticipatory self-defense” and the application of the Caroline standard was Israel’s strike against an Iraqi nuclear reactor in 1981. Israel’s justification: Eventually, the materials and science developed at the reactor could have led to a nuclear-armed Iraq.

The U.N. Security Council condemned the attack because the threat to Israel, albeit foreseeable, was not "imminent.”

Despite the U.N. position, the matter was still gray enough to get mixed reviews from scholars of international law. A minority of experts maintained at the time and in hindsight that Israel indeed met the Caroline standard, because destroying the reactor may have been Israel’s last clear chance to avoid a nuclear attack.

Also complicating the Iraq equation is the recognition by Powell and the administration that the U.N. resolution announced in the wake of Sept. 11 did not give a green light to any means the U.S. chooses to take in ferreting out and destroying terrorists.

In Resolution 1368, the Security Council resolves that it (not a discrete nation or group of nations) was "determined to combat by all means threats to international peace and security caused by terrorist acts,” and "expressed its readiness to take all necessary steps to respond to the terrorist attacks of 11 September 2001, and to combat all forms of terrorism, in accordance with its responsibilities under the Charter of the United Nations.”

And sister Resolution 1373 notes the Security Council’s hallowed responsibility under its charter, which allows force only under exigent circumstances, and when other measures are impossible - and then presumably under a U.N. flag and command.

Resolution 1373 speaks of freezing terrorist assets, criminalizing the financing or support of terrorists, exchanging police and intelligence information about terrorists, preventing movement of terrorists across borders, and capturing and prosecuting terrorists.

The Bush administration has followed the U.N. recommendations and interpreted the Security Council resolution condemning the Sept. 11 attacks as authorizing U.S. military retaliation against al-Qaeda and the forces that harbor it.

In doing so, it has received the tacit, if not unequivocal, blessing of the U.N. and the solid support of the civilized world.

However, as Powell has apparently argued successfully, the U.S. must be concerned about the views of other states, especially with regard to the validity of U.S. claims. The U.S. has a substantial continuing interest in enforcing the principles of the U.N. Charter against nations that use force aggressively – such as Iraq.

Being caught between a rock and hard place in the fine print of international law will end, according to Powell and the White House, when clear and convincing evidence tying Saddam Hussein to Sept. 11 emerges.

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The dilemma of what to do about Iraq has always sounded in the vagaries of what is recognized by the United Nations' Charter and international law as acceptable means of self-defense. At the heart of the conundrum are the nettlesome buzzwords pre-emptory attack," or ...
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Tuesday, 08 January 2002 12:00 AM
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