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Larry Beinhart: Judgment at Nuremberg


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Nov 15, 2005
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Judgment at Nuremberg
Part III – Self-Defense, Preemptive War, Preventive War
and the Crime of Aggressive War
by Larry Beinhart

Self-defense is our automatic right as individuals and it is an automatic right of nations.

After 9/11 probably every American – and many people around the world – wished we had known about the attacks before hand, and, having known, struck first.

The Steamship Caroline
The discussion of pre-emptive war always begins with one actual event: the burning of the Caroline in 1837. The peculiarity is the aggrieved party – the country that was attacked – that came up with the formulation to justify it.
A small-time insurrection was taking place in Canada. The rebels were recruiting foreign fighters from the States and they were smuggling arms across the Niagara River in an American boat, the Caroline. One night, when she was docked on the New York side, the British crossed over, burnt her and sent her over the Falls. They killed one American in the process.
This could have sparked the third war between Britain and America. Neither government wanted that. The American Secretary of State, Daniel Webster, who came up with the statement that is always cited. A state can resort to arms provided that, “the necessity of that self-defense is instant, overwhelming, and leaving no choice of means and moment for deliberation.”
Furthermore, “the act, justified by the necessity of self defense, must be limited by that necessity, and kept clearly within it.” Yes, it was legal to sink the Caroline. But it would not have been legal to sack and burn Buffalo while they were at it.

The history of preemptive wars is quite limited.
The best of them are imaginary: if England had struck Germany in 1936; if the Soviet Union had struck Germany in 1941; if the United States had struck Japan before Pearl Harbor.
Here are some real ones: Germany attacked the Soviet Union in 1941; Japan attacked the United States; The Confederacy attacked Union in 1861; the Soviet Union attacked Finland in 1939; China’s entry into the Korean War in 1950.
The literature on pre-emptive war mostly ignores those examples. They’re too depressing.
Instead they cite four actions: Operation Urgent Fury, Operation Just Cause, the Six Day War and the bombing of Osirek.
Operation Urgent Fury was the invasion of Grenada. It has been described both as a public relations mission to distract from the embarrassment of the US withdrawal from Lebanon and as a vital piece in the global war against Marxism. Operation Just Cause was the invasion of Panama to arrest Manuel Noriega on drug charges.
Was Noriega heading north? Were the Stalinist leaders of Grenada, population 89,000, about to lead their people in an amphibious assault on the Gulf Coast? Yet sources as reputable as the Brookings Institute cite these two as preemptive wars. I cannot decipher why, but I welcome anyone to look further.
The Six-Day War took place 1967. Egypt’s president Nasser headed a coalition that included Syria, Lebanon, Iraq, Sudan and Kuwait, all mobilized against Israel. Nasser told the UN peacekeeping forces stationed in the Sinai to leave and get out of the way. He also closed the Straits of Tiran, Israel’s access to the sea from the south. When he was told that was an act of war, he replied that Egypt and Israel were already in a state of war.
Israel launched a preemptive attack. It was very successful. They held on to some of the territories they captured. That has been regarded as less successful.
In 1981, during the Iraq-Iran War, Iraq was building a nuclear reactor at Osirek. Iran and Israel were convinced that Saddam Hussein would use it to produce nuclear weapons and neither felt they could allow that to happen. Neither had the international clout to prevent it diplomatically. Iran attacked and failed.
The Israelis decided they had to attack before actual nuclear fuel was delivered. If they attacked afterward they would risk polluting the whole area with nuclear fallout and harming a huge number of civilians.
They sent a small air force squadron over Jordan, Saudi Arabia and Iraq - 1,100 kilometers of hostile air space - bombed the facility – killing one French engineer – and went home.
The raid set the Iraqi nuclear program back more than a decade and Saddam never achieved nuclear weapons.

Preventive War

The raid on Osirek was precise and restrained. It was exactly appropriate to the threat. Like the burning of the Caroline.
It is also the point in which preemptive war began to morph into preventive war.

The difference – as it is explained by the administration – is that the threat no longer has to be immediate. It can be “gathering” or “growing.”
“… as a matter of common sense and self-defense, 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.”
(National Security Strategy, 9/20/02)

The morality and the legality of preemptive and preventive war – to whatever degree they are legitimate - rest on the concept of self-defense.
Let us presume that Saddam Hussein had weapons of mass destruction. Or that he was attempting to build a nuclear program. Further, that he was willing to risk the consequences of attacking the United States. Or that he was willing to give a nuclear or biological or significant chemical weapon to someone else who would risk using it against the United States.
What then, is a legitimate response based on self-defense?
“The act, justified by the necessity of self defense, must be limited by that necessity, and kept clearly within it.”
What act is necessary to assure our self-defense? But is no more than necessary?
It would be to disarm Iraq.
Not even to totally disarm Iraq. Nobody ever claimed - or ever would claim - that a division of Iraq’s Republican Guard would attempt an assault on Washington, DC. How would they arrive? On Air France? And enter the country with student visas?
(Allow me a preemptive defense here. Because I can hear, in my head, an angry conservative, screaming ‘you jerk, the terrorists on 9/11 did exactly that, they entered the country on tourist and student visas and hijacked American airplanes. Hah!’ Yes, of course. But that has nothing to do with Saddam or WMDs. Guys who live in caves anywhere – Pakistan, Bolivia, Saudi Arabia, Chechnya, Illinois could do that.)
Self-defense was claimed on the basis that Iraq had nuclear, biological or chemical weapons or – at a stretch – the ability to make them. The goal was to remove them (if they existed) and eliminate his ability to manufacture more (if that existed).

Taking the Case to Court

The United States presented their case for war with Iraq to the United Nations.
There was a reason for that.
Preemption and prevention are ambiguous grounds for going to war. Only two kinds of war are unambiguously legal: self-defense and with UN approval.
In response to America’s proposal, the UN passed Resolution 1441. It demanded that inspectors return to Iraq “without conditions.” The US wanted it to authorize the use of force. It could have authorized force. It did not. That was deliberate.
Saddam was not expected to comply. The promise of force would have been the next step.
To everyone’s surprise, Saddam agreed to let the inspectors return “without conditions.”

read the rest at: http://www.huffingtonpost.com/larry-beinhart/

Larry Beinhart is the author of Wag the Dog, The Librarian, and http://www.nationbooks.org/book.mhtml?t=beinhart3 Fog Facts: Searching for Truth in the Land of Spin. All available at nationbooks.org
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