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Reprinted from NewsMax.com
What Prevents U.S. Attack on Iraq
Dave Eberhart, NewsMax.com
Wednesday, Jan. 9, 2002
When Deputy Defense Secretary Paul Wolfowitz indicated to the New
York Times this week that the U.S.-led War on Terrorism would bypass
Iraq and concentrate on outlaw sanctuaries in Somalia, Yemen,
Indonesia and the Philippines, he did not surprise students of
international law.
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, just
ified 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 standa
rd, 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 ferret
ing out and destroying terrorists.
U.N. Again
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 "expr
essed 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 Natio
ns.�
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 h
ave harbored 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 e
nforcing 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.
Read more on this subject in related Hot Topics:
United Nations
Al-Qaeda
Bush Administration
Middle East
Saddam Hussein/Iraq
War on Terrorism
A product that might interest you:
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