Preemptive War / Preventive War
Both Are Against The Law Of The United States
Ann Fagan Ginger
Meiklejohn Civil Liberties Institute
When the Bush Administration starts saying it will follow a new National Security Strategy announced in September 2002, we are all worried because we have just been unable to stop the President from going to war against Iraq and despoiling the country.
I find the FCNL Washington Newsletter of May 2003 deeply troubling in its discussion of the legality of preemptive strikes: “In international law, this near certainty that a significant attack is about to happen triggers the right of self-defense proportional to the threat posed until the threat ends or the U.N. Security Council takes effective action to restore peace and security. Under these conditions, preemptive war is legal. Preventive war never is.”
I am troubled in the same way by Prof. Noam Chomsky’s statement in an interview March 22, 2003: “Not a preemptive war, which arguably falls within some stretching of the U.N. Charter. But rather something that doesn’t even begin to have any grounds under international law: namely, preventive war.”
Reading the precise language in all of the relevant articles in the U.N. Charter is essential, in the same way we must read the precise language of the First and Fourth and all the Amendments to the U.S. Constitution in light of the so-called Patriot Act and Bush Administration actions against “terrorists.”
The U.N. Charter is a treaty ratified by the U.S. and therefore is part of “the supreme law of the land” under the U.S. Constitution, Art. VI, clause 2. By ratifying the Charter, the United States made certain commitments to all other member nations to obey the law set forth in the Charter.
In teaching international law and human rights, I find that the law becomes much clearer when I require the students to read the Charter language. I have used it in my law practice, in my organizational work, and have heard other international lawyers discuss the language at meetings of the International Association of Democratic Lawyers in Capetown, Cambridge, Buenos Aires, Havana, etc.
Art. 2.3: All nations shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
Art. 2.4: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
The International Court of Justice (ICJ) spelled out exactly what no nation can legally do in light of its commitments to uphold the U.N. Charter: “Thus it would be illegal for a state to threaten force to secure territory from another State, or to cause it to follow or not follow certain political or economic paths.”
Chomsky and FCNL did not quote or discuss U.N. Charter articles 33-50 in Chapter VI and VII. They are relevant – critical – to spelling out the relevant international law on preemptive and preventive war.
Art. 33: The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, will, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
The U.S. used Art. 33 when it sued Iran in the International Court of Justice (World Court), and won, and injured U.S. citizens collected damages from the government of Iran.
If all else fails, any nation may use a second strike against an attacking nation, not a first strike, and not a third strike:
Art. 51: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. …
So, if the United States fears an attack by any of the nations the Bush Administration has listed as the Axis of Evil – Iran or Syria or North Korea or … – it may NOT make a first strike, whether this is called “preemptive” or “preventive.” It has made a commitment to all other members of the U.N. that it “will, first of all, seek a solution … by peaceful means ….” (Art. 33) The U.S. could, should, MUST instead live up to its word and sue that nation in the International Court of Justice.
This has many advantages. The world will learn the charges the U.S. Government is making of violations of law by the other country, and why the U.S. fears an attack. And the world will know what the response of the other nation is. There will be a chance for negotiations to take place, as happened when Nicaragua sued the U.N. in the International Court of Justice, Nicaragua won, the U.S. said it would not obey the decision, and then the new government withdrew the case from the Court, making some agreements with the U.S. as to future friendly relations.
It is no answer for the U.S. to say the World Court has no power to enforce its decisions. Neither does the U.S. Supreme Court have any power to enforce its decisions, including, e.g., Brown v. Board of Education. The Court states the law; the people must use the mobilization of shame to cause their governments to enforce that law, as many of us did in the struggle to desegregate the schools, and as we are now doing in the trial courts to defend the First Amendment’s absolute language.
The fact is: the United Nations Charter is like the U.S. Constitution and Bill of Rights: a remarkable document that could only have been written and ratified after the most devastating war in human history. It is not perfect. It spells out the actual power politics of 1945. But it had to include human rights (Articles 55 and 56) and the right to peace (articles mentioned above). It is time the people of the United States started to use the actual words of the Charter as many of us finally learned to use the First Amendment in the Truman/McCarthy period, only 50 years ago. The people of South Africa can assure us that we will find this useful, as they did in their struggles against apartheid, using the International Court of Justice, General Assembly, Economic & Social Council, and many U.N. agencies.
 “Imperial Ambition: Noam Chomsky interviewed by David Barsamian” in Monthly Review May 2003.
 Human Rights and Peace Law in the U.S. and Introduction to Global Peace Studies at San Francisco State University.
 As Executive Director of Meiklejohn Civil Liberties Institute filing amicus briefs in cases to prevent the closing of public schools for lack of funding, supporting affirmative action, etc.
 E.g., as a member of the Disarmament Subcommittee of the American Friends Service Committee.
 Paragraph 47, Legality of the Threat or Use of Nuclear Weapons, Int’l. Ct. of Justice, Year 1996, 8 July, General List No. 95; and see discussion in Ginger, “Nuclear Weapons Are Illegal: The Historic Opinion of the World Court and How It Will Be Enforced”
 ICJ Reports 1980, May 24.
 ICJ Reports, 1986. This case has been misread by many as proof that the ICJ has no power to enforce its opinions. In fact, the U.S. won the case at the ballot box when the Sandinista government that had filed the lawsuit lost to the Chamorro government. But the ICJ was prepared to proceed to decide how much damages should be paid to Nicaragua, just as the ICJ had proceeded to figure out how much damages should be paid to the U.S. in U.S. v. Iran until the Chamorro government withdrew the case from the Court. Otherwise it would have remained on the agenda of the Court until the U.S. obeyed the ruling, as France did, 15 years after the ICJ had ruled that its testing of nuclear weapons in Australia and New Zealand was illegal.