The spec­tre of ‘pre-emp­tive’ war

Sunday Express - - LEADER -

US Pres­i­dent Don­ald Trump pro­claims apoc­a­lypse. «They will be met with fire, fury and frankly power the likes of which this world has never seen be­fore.» At his New Jer­sey golf club, he pro­claimed again, «If any­thing, maybe that state­ment wasn›t tough enough.»

In do­ing so, he raises the spec­tre of war.

His ca­sus belli is way over on the vague side. “They’ve been do­ing this to our coun­try for a long time, for many years, it’s about time some­body stuck up for the peo­ple of this coun­try ...” What is “this”? And what is it do­ing to the United States? Has the US suf­fered from North Korean in­cur­sions? Have we missed them?

Trump’s war­mon­ger­ing rhetoric raises the ques­tion: would a war be le­gal?

There are many peo­ple who may think that de­bate is aca­demic. Trump - and Amer­ica - can, and will, do what they want, and no lawyer will stop them.

How­ever, the rules are worth know­ing for their own sake and an ex­am­i­na­tion of their his­tory re­veals a great deal about the na­ture of war.

As a gen­eral rule, ag­gres­sive war is il­le­gal. In al­most the same way, that a phys­i­cal as­sault by an in­di­vid­ual on an­other per­son is il­le­gal. Tech­ni­cally, it was out­lawed in 1928 by the Kel­log­gBriand Pact. Most of the par­tic­i­pants in the sec­ond world war were sig­na­to­ries, so it be­came the le­gal foun­da­tion for the prose­cu­tions at Nurem­berg where the un­der­ly­ing prin­ci­ple was re­it­er­ated:

“War is es­sen­tially an evil thing. Its con­se­quences are not con­fined to the bel­liger­ent states alone, but af­fect the whole world. To ini­ti­ate a war of ag­gres­sion, there­fore, 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.”

The Kel­logg-Briand pact re­mains in ef­fect. The UN Char­ter also out­laws ag­gres­sive war. It’s ef­fec­tively a treaty and the US is a sig­na­tory.

The fun­da­men­tal ex­cep­tion - as in crim­i­nal law - is self-de­fence. Any na-

Sun­day Talk

tion that’s phys­i­cally at­tacked has the ab­so­lute right to fight back.

Ad­di­tion­ally anal­o­gous, the UN en­vi­sions the idea of a po­lice force with the right to em­ploy vi­o­lence with proper au­tho­ri­sa­tion. The Korean War and the Gulf War were both UN-sanc­tioned wars.

The idea of self-de­fence is some­times stretched to val­i­date “pre­ven­tive” and “pre-emp­tive” war, words and con­cepts that are very eas­ily con­fused and con­flated.

The first “case” of pre­ven­tive war was in 1837. A mi­nor re­bel­lion was tak­ing place in Canada. The rebel base was on an is­land in the Ni­a­gara River. They had a steam­boat, called the Caro­line, which they used to ferry their forces (ter­ror­ists?) and their arms (weapons of in­di­vid­ual de­struc­tion). To pro­tect it, they kept it moored in a for­eign coun­try, the United States. De­spite that, the Bri­tish crossed over one night and set it on fire, killing one Amer­i­can in the process.

It was, with­out doubt, an in­va­sion. It seemed as if it would be the ca­sus belli of an­other war be­tween Eng­land and the US.

The in­ter­est­ing thing is that it was not the ag­gres­sors, it was the “vic­tim” that came up with the le­gal­is­tic no­tion of “pre­ven­tive” war. It was pre­cisely and nar­rowly de­fined. “The ne­ces­sity of that self­de­fence is in­stant, over­whelm­ing, and leav­ing no choice of means and mo­ment for de­lib­er­a­tion.”

It could not be an ex­cuse for all-out war. It had to be limited to fix­ing a limited prob­lem: “Noth­ing un­rea­son­able or ex­ces­sive; since the act, jus­ti­fied by the ne­ces­sity of self-de­fence, must be limited by that ne­ces­sity, and kept clearly within it.”

“Pre-emp­tive” war is very dif­fer­ent. Coun­tries go to war based on the con­vic­tion that the other guy is go­ing to at­tack them and the only thing to do is be first to the bat­tle­field.

The best pre-emp­tive wars are imag­i­nary: if Eng­land had struck Ger­many in 1936; if the Soviet Union had struck Ger­many in 1941; if the US had struck Ja­pan be­fore Pearl Harbor.

Here are some ex­am­ples of real pre­emp­tive wars: Ger­many’s at­tack on the Soviet Union in 1941; Ja­pan’s at­tack on the US in 1942; the Con­fed­er­ate States against the Union in 1861; and China’s en­try into the Korean War in 1950.

How­ever mil­i­taris­tic the US has been, ide­o­log­i­cally it had al­ways re­jected the idea of pre-emp­tive war. Un­til it was repack­aged as “Bush Doc­trine”.

“… as a mat­ter of com­mon sense and self-de­fence, Amer­ica will act against emerg­ing threats be­fore they are fully formed.

“… rogue states and ter­ror­ists … rely on acts of ter­ror and, po­ten­tially, the use of weapons of mass de­struc­tion … the greater the threat, the greater is the risk of in­ac­tion - and the more com­pelling the case for tak­ing an­tic­i­pa­tory ac­tion to de­fend our­selves.”

That gave the world the sec­ond war in Iraq, which was a disas­ter.

A very strong ar­gu­ment can be made that the disas­ter was due to the moral di­men­sion of war. When a coun­try, or a peo­ple, is at­tacked it cre­ates a level of moral out­rage that is al­most bot­tom­less. When a coun­try is the ag­gres­sor, es­pe­cially when it was a war of choice - pos­si­bly with per­ceived ne­ces­sity, but not real ne­ces­sity - it does not win. They may not lose, as Ger­many and Ja­pan did in World War II, but they fail to “win,” like Rus­sia in Fin­land, China in Korea, and the US in Iraq.

Laws, at their base, are an at­tempt to bring re­al­ity un­der con­trol by cod­i­fy­ing it. War is dam­ag­ing, de­struc­tive, “the supreme in­ter­na­tional crime dif­fer­ing only from other war crimes in that it con­tains within it­self the ac­cu­mu­lated evil of the whole.” Laws about war might seem aca­demic, but they’re not. They’re an ex­cel­lent guide to avoid­ing de­struc­tion and fail­ure.

Bein­hart is a nov­el­ist, best known for Wag the Dog. He’s also been a jour­nal­ist, po­lit­i­cal con­sul­tant, a com­mer­cial pro­ducer and di­rec­tor.

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