It’s all about Article 51 of the UN Charter. A high standard of restraint is necessary, but is that enough when survival is counted in minutes? By Leon Furth, Professor, George Washington University.

The writer is a research professor at George Washington University and was national security adviser to US vice- president Al Gore

The Bush administration’s security doctrine asserts that presidents have a unilateral, natural right to make war pre-emptively. In short, the administration believes that war works and international law does not. Many Americans are ready to accept that war is sometimes unavoidable, but not that the US can be safe only if it becomes a law unto itself. The question is whether it is possible for the US to balance might and right inside the framework of international law.

Article 51 of the United Nations Charter says that nations may use force pre-emptively for self-defence in case of “imminent” attack. The term “imminent” is not very well defined, but its legal history strongly suggests a very high standard of restraint: perhaps too high for the modern age, when the difference between life and death can be measured in minutes. Does it follow that international law is irrelevant or even harmful for a country such as the US? Because if that is true, it is true for everyone, for example India and Pakistan. And if we do not believe that a lawless world is in our interest, then how are we to protect ourselves without throwing off all restraints for others? To do this, it is important to reason carefully about specific cases in relation to general principle. There are four such instances: Iraq, North Korea, Iran and international terror organisations.

In the case of Iraq, the administration did not claim that the US faced an imminent threat of attack, but rather that it was obliged to use force to prevent Iraq from ever acquiring weapons of mass destruction or from conveying them to terrorist groups. Iraq’s potential to threaten the US was real enough, given time. And as some have said, the UN Charter is not a suicide pact. But it was not necessary to violate article 51 in order to justify action.

Iraq was massively in breach of the terms of the ceasefire agreement that halted the first Gulf war, and had continued to refuse requests from the Security Council to comply. This fact alone provided a rationale for a resumption of hostilities. Not everyone might agree with that rationale, but it would have been better had the administration held to that point, rather than justify war in Iraq in terms that made it a test case for its doctrine of pre-emption. Fortunately, the administration used multiple justifications for war, and so may retrospectively “clarify” its views in a way that reverses the damage otherwise done to article 51.

Meanwhile, North Korea has already become precisely the menace that Iraq only might have been. A peaceful solution to this crisis is highly desirable but may not be attainable. If force does become necessary, the administration should not fall back on the idea of pre-emption. A state of hostilities has existed with North Korea for more than half a century, suspended only by a ceasefire agreement. Under the circumstances, North Korea’s nuclear weapons threats call into question the validity of that agreement.

In the end, no amount of pressure may suffice for Iran to abandon its search for weapons of mass destruction. Does article 51 then mean that the US can take no action until faced with an Iranian nuclear strike? That is a standard not likely to be honoured. Perhaps the notion of “imminent” threat means one thing when dealing with conventional forces, and something very different where weapons of mass destruction are involved. It might be that the closer a country comes to deploying such weapons, the closer it gets to triggering the rights of others to actions of pre-emptive self-defence within the sense of article 51

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