THE BLOG

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors

Larry Beinhart Headshot

Judgment at Nuremberg Part III

Posted: Updated:

Self-Defense, Preemptive War, Preventive War and the Crime of Aggressive War

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.”

Iraq, the UN and the IAEA (International Atomic Energy Agency) sat down and came to terms for the inspections. The US said the terms weren’t tough enough.

At the same time, the US congress passed the authorization for President Bush to use force.

The actual wording has an “if” in it. It is to use force if peaceful means “will not adequately protect the national security of the United States …” Doubtless, there were many congresspersons and senators eager for war. But there were others who felt that the threat of force was a negotiating tool.

It worked. Saddam rolled over. He agreed to the new terms.

The inspectors went in. They began to inspect. They weren’t finding anything.

At some point, back in the eighties, Saddam did have WMDs. After Gulf War I, he agreed to destroy them. That’s what the inspectors had been there for in the first place. The conventional wisdom was that had somehow evaded the years of UN inspections and that some of those weapons were still there. He was now required to produce proof that they had been destroyed.

The rhetorical emphasis in the United States began to shift. It wouldn’t matter if the inspectors didn’t find weapons. Saddam would have to prove that he had destroyed them. Destroyed them all!

We should pause here. It is very important.

Because the sleight of hand has already happened.

If Saddam Hussein was a threat, it was only because he had WMDs. If the inspectors discovered there weren’t any, there was no threat. If they discovered that he did have them, and they were destroyed, then he would no longer be a threat. Self-defense would have been accomplished.

Either way – once the inspectors were in and doing their job effectively – it was over.

A brilliant preemptive, or preventive diplomatic action had been accomplished! Without a shot fired. Without a single life lost.

But what happened was that it stopped being about defense. It became about Saddam being bad. If it turned out that he had weapons, that would prove he had been bad, and Iraq could be invaded.

If weapons could not be found – well, that was a problem.

The standard had to be changed. Colin Powell announced that it didn’t matter if the inspectors didn’t find weapons …. it was up to Saddam to prove he had destroyed them.

He attempted to do so. Iraq submitted a 12,000 page report on how it had disposed of its weapons. Although some of it was in Arabic, it took the US only five days to say it was inadequate.

There were certain weapons that the West thought Iraq probably had - or must have had -back in the 90’s, that were not accounted for in the 12,000 pages. Also, some illegal munitions were found, like empty warheads that were capable of delivering chemical weapons. The Iraqis turned in some missiles that had a longer range than were allowed, then subsequently destroyed them. Bush, Powell, Rice, Tony Blair, et al, loudly proclaimed that each of these was evidence that Saddam was deceitful, tricky, not to be trusted and proof that diplomatic efforts were not working and that the UN was weak and inept.

But keeping track of things, even large things like weapons, is not as easy as it would seem. As a point of comparison, at about the same time, the US military, which was presumably better organized than Iraq’s, admitted it had lost track of 56 airplanes, 32 tanks and 36 Javelin missile systems of its own. Nor is keeping records as easy for an army as we might wish. Donald Rumsfeld said that his Defense Department had lost track of as much as $2.3 trillion in transactions.

In the meantime, the inspectors were getting in everywhere they wanted. When they met obstructions they complained and the obstructions were removed.

On February 22nd, Bush and Blair changed the rules. Not only did Saddam have to allow the inspectors in, which he had done, and disarm, which he was doing in the few cases where anything was found, now, he had to abdicate as well.

Saddam refused.

However, the inspectors were in Iraq. They had access. They felt they needed another few months to finish the job. If they found nothing, it presumably would have even been possible to impose permanent inspections on Iraq with a permanent presence.

Then, on March 16th, Bush and Blair gave Saddam Hussein 24 hours to disarm. And to leave Iraq.

The next day the inspectors were withdrawn. Three days after that, the war began.

Even if the question “Why?” does not arise, the question, “Why then? Why March 16?” certainly does. There was no defiance, no sudden discovery of weapons, no sudden appearance of a terrorist in Crawford, Texas with a canister of botulism stamped Made in Iraq. Nothing had changed.

The answer is: nobody likes to fight in the Iraqi desert in summer. Winter is quite the best. Early spring will do. But definitely not in summer.

Shock and Awe was designed to replicate the bombing of Hiroshima and Nagasaki without using nuclear weapons. It involved massive bombing of cities. Cities are filled mostly with civilians.

The most conservative estimate of civilian deaths caused by the war is around 27,000. An estimate based on an epidemiological study out of Johns Hopkins, puts the figure at 100,000.

That’s deaths. Not casualites. It doesn’t include children who lost a limb or an eye or their parents or their sanity.

The infrastructure of Iraq was deliberately destroyed – electricity, water, transportation. Everything but the oil wells. As a result there was hunger and disease and no medical facilities to deal with them.

In the aftermath of the war, Iraq devolved into chaos. It is a particularly violent chaos, in which private armies, murder, car bombings, suicide bombings, assault, kidnapping, rape, looting and robbery are all more normal than normality.

If the invasion of Iraq was a preemptive war or a preventive war, it achieved its objectives the day the inspectors began to inspect “without conditions.”

If “self defense” was effected, then what is an action beyond that?

Is it a “war of aggression?”

If civilians are killed in the course of a legitimate military operation, it is regrettable, but an unfortunate necessity. But if it is not a war of self-defense, if it is a war of aggression, then those deaths are among the multitude of evils that make aggressive war “the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”