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Pre-emption – the knife that cuts both ways June 16, 2006

Posted by WorldbyStorm in Iraq.

The Guardian had an intriguing book review last weekend by Louise Christian (who has acted as lawyer to Guantánamo Bay detainees) of Preemption: A Knife That Cuts Both Ways by Alan M. Dershowitz, Harvard law professor, and neo-con bien-pensant which you can read here. Not unexpectedly she gave the Dershowitz thesis (of the justification of pre-emptive action which he contemplates as being of a piece with that taken by the Israeli state against Hamas and others) short shrift, but most interesting are the comments she makes at the end of the review. Here one sees the outlines of an impressively nuanced approach to future international law and state led pre-emptive actions.

She notes that "Most good international lawyers (such as Philippe Sands, the author of the excellent Lawless World) would agree that there is a legitimate debate to be had about the legal justification for pre-emptive wars, although most would want it to buttress, not to dismiss (as Dershowitz does), the authority of the UN". But even more pointedly notes one of the central paradoxes at the heart of the contemporary debate about pre-emption and intervention "that while "hawks" want preemptive wars to justify preventive strikes against states with WMDs, "doves" want humanitaritan intervention to stop genocide".

And this is a real conundrum. She metaphorically lashes Dershowitz, noting 'the real agenda of those to whom [he] is a cheerleader. There are a lot of hawks in this book and little sign of the doves'.

There is more than a little something in what she says. One doesn't need to have had doubts about the wisdom of the Iraq war, in it's execution if not it's stated objective, to believe that there is an unsatisfactory aspect to the contemporary framework of international law. This framework appears to reinforce sovereignty as a means of imprisoning some populations under authoritarian leaders, or permit monstrous crimes against groups within national borders.

The Security Council of the United Nations is a blunt instrument, too caught up in the competing demands of the constituent elements to operate as a clear means of determining what and where demands international action. However, the UN has, in the form of the "In Larger Freedom: Towards Development, Security and Human Rights for All" report begun to work towards this very goal. One annex of that report is very interesting indeed, and here it is…

(h) Request the Security Council to adopt a resolution on the use of force that sets out principles for the use of force and expresses its intention to be guided by them when deciding whether to authorize or mandate the use of force; such principles should include: a reaffirmation of the provisions of the Charter of the United Nations with respect to the use of force, including those of Article 51; a reaffirmation of the central role of the Security Council in the area of peace and security; a reaffirmation of the right of the Security Council to use military force, including preventively, to preserve international peace and security, including in cases of genocide, ethnic cleansing and other such crimes against humanity; and the need to consider — when contemplating whether to authorize or endorse the use of force — the seriousness of the threat, the proper purpose of the proposed military action, whether means short of the use of force might reasonably succeed in stopping the threat, whether the military option is proportional to the threat at hand and whether there is a reasonable chance of success; (full document here)

The last part is perhaps atypically pragmatic, but it will be telling to note how long it takes for the Security Council to come to terms with this concept because this paragraph distills all the core elements that were fought over on the path to the Iraq war. Whether this actually flies is a different issue. And herein is the core problem. Much of the Security Council, heck, much of the UN General Assembly, doesn't want to see the bar on intervention or pre-emption lowered. There are too many little domestic problems in certain states that given any due consideration would fall within the definition of cases of 'ethnic cleansing and other such crimes against humanity'. Whether the members would ultimately agree with such conditions is questionable, and it's difficult to envisage what sort of quid pro quo might tempt them to agree. And perhaps this is pure cynicism, but would the US be entirely comfortable with a system which might trammel it in some fashion, or worse, demand it commit military assets to global conflicts far beyond it's regional or security concerns?

And yet, one notable shift in US foreign policy relations in the last month or so has been an unusual willingness to engage diplomatically on the Iran issue. With the likely Presidential candidates from both Republican and Democrat side likely to be somewhat more cautious in their dealings with the international community it seems that there is a window of opportunity for a reworked UN mandate for dealing with the broad array of issues described in the annex. The differing concerns of hawks and doves could potentially be addressed to some extent. Whether that extent will be sufficient, or even close to sufficient, when applied to real world issues remains to be seen. But if the best is not always to be the enemy of the better then even slight movement towards a more truly global agreed security system would be a start.

The knife that cut's both ways…indeed it does…


1. lancelot - January 25, 2007

with posts like this how long before we give up the newspaper?!!


2. When an army shoots its own… Burma, sovereignty and the left… « The Cedar Lounge Revolution - October 1, 2007

[…] be done? I’ve mentioned before that the United Nations is in the process of considering these issues in the context of the ‘Larger Freedoms’ report although considering the urgency of […]


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