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World: Does A Defense Of Preemptive Strikes Open A Global Pandora's Box?

  • Jeremy Bransten

Australian Prime Minister John Howard has raised a storm of criticism in Asia, in the wake of his assertion that Australia has the right to take preemptive military action abroad if it believes it is threatened by an imminent terrorist attack. Howard went one step further than the United States in laying out his national-security doctrine, saying Canberra favors amending the United Nations Charter to clearly reflect the right of countries to "anticipatory self-defense." Does Howard's proposal open a Pandora's box undermining the foundation of modern international relations, or does it reflect new realities and merit serious consideration?

Prague, 3 December 2002 (RFE/RL) -- Australian Prime Minister John Howard earned support from the United States for his claim that Australia has the right to launch preemptive strikes against terrorist groups harbored in foreign countries, should it feel under threat of attack. Howard first spoke on the issue on 1 December. He has reaffirmed his position in subsequent days. "It stands to reason that if you believed that somebody was going to launch an attack against your country, either of the conventional kind or the terrorist kind, and you had a capacity to stop it and there was no alternative other than to use that capacity, then, of course, you would have to use it," Howard said.

Howard added that he was making a declaration of principle and did not envision any immediate use of force. But his remarks touched off a storm of protest in nearby Asian countries with ripples as far away as Beijing, where visiting Russian President Vladimir Putin today condemned the unilateral use of force as a means of resolving international disputes.

Malaysian Defense Minister Rajib Razak, speaking yesterday at a news conference in Kuala Lumpur, was even more blunt. He warned the Australian and other foreign militaries to stay out of his country. "We don't require the assistance or the intervention of foreign troops, whether from Australia or from any other country, in our fight against terror, against terrorists in Malaysia. Because, first of all, we have the means. We have the capability. We have the resources to deal with any form of terrorist threat in Malaysia," Razak said.

What makes the new Australian doctrine such a focus of attention is not only that it aligns itself with the United States' current foreign policy but that it takes that policy one step further. The country's defense minister, Robert Hill, in a speech republished as an editorial in yesterday's "International Herald Tribune," called for reinterpreting or even amending the 1945 United Nations Charter to clearly enshrine the right of all countries to "anticipatory self-defense" in view of the threats posed by international terrorist groups operating from foreign countries.

Currently, Article 51 of the UN Charter grants countries the right to individual or collective self-defense if they find themselves "under armed attack," until the UN Security Council has taken measures "necessary to maintain international peace and security." That wording is already being interpreted by some countries, such as the United States in the wake of 11 September 2001, as legitimizing preemptive strikes as part of a strategy of self-defense.

Christopher Greenwood, professor of international law at the London School of Economics, told RFE/RL he supports this view. "I think the right of self-defense under international law encompasses the right of anticipatory self-defense where a state is faced with an imminent threat of armed attack," Greenwood said.

But there is no universal agreement on this point, and many take issue with that interpretation.

Among them is Hans Koechler, chairman of the Department of Philosophy at the University of Innsbruck and author of a forthcoming book on the application of international law. Koechler said that in his view, Article 51 does not justify first strikes against terrorists, as an attack has to occur first in order for self-defense to be legitimized. "I am skeptical about this possibility, because the wording of Article 51 of the [UN] Charter, in my interpretation, relates to attacks post factum. I do not see how one might interpret Article 51 in a way as to justify preventive war or preventive strikes," Koechler said.

But because of Article 51's perceived ambiguity, Koechler said he would welcome an unequivocal ruling by a UN body, as requested by Australia. "I would say it makes sense for the United Nations member states to ask for an advisory opinion on this issue from the International Court of Justice. That is what has been done on other issues, and that could help in this matter," Koechler said.

Whether the current UN Charter can be interpreted to allow preemptive strikes against terrorists is one question. The charter may even, in time, be changed if Australia can win over the current five permanent members of the Security Council to its position. A more important question, Koechler said, is who decides when a threat is "imminent." He said that leaving the decision of when to launch preemptive strikes up to individual countries, as Australia is proposing, could invite chaos, or worse. "As far as the formulation of Article 51 is concerned -- the right of individual and collective self-defense -- I could imagine that a kind of precision might be added to that article in regards to preventive action. But if any such precision or addendum is made, it should leave it up to the responsibility of the Security Council to decide on such potential threats. If the decision is entirely left to individual states, I'm afraid that such an additional clause might be abused just for the purposes of power politics," Koechler said.

Koechler said the Australian government may have put the cart before the horse by advocating a change in the UN Charter before defining the nature of the threat posed by terrorism. The first step, he said, ought to be for the world body to agree to a precise definition of what constitutes "terrorism" and what constitutes a "terrorist organization." Only afterward should a debate be started on whether it is legitimate to strike first against such groups. "This is what I have been suggesting now for many years, in fact for more than 15 years. And I think that the proposal of the Australian defense minister could be much better advanced if there would be a comprehensive international convention of the United Nations on combating terrorism. This is what I recommended earlier this year in a speech at the Supreme Court of the Philippines. But such a comprehensive international convention requires, of course, as a first step, a consensus on a definition of the criteria of the term 'terrorism,'" Koechler said.

Reaching an internationally acceptable definition of terrorism could prove elusive. Often, one person's or country's "terrorist" is another's "freedom fighter," as illustrated by the Israeli-Palestinian confrontation and scores of other conflicts around the world. But Koechler said concentrating on the means rather than the goals could lead to a simple formulation. "The use of force, the deliberate use of force against civilians, whether in a situation of war, with which the Geneva conventions deal, or in other situations that may occur in the course of actions of 'liberation movements,' would always have to be qualified as illegitimate, as illegal, or terrorist," Koechler said.

Terrorism and the war on terrorism have become such buzzwords of late that governments around the world have felt the need to stake out positions on the issue. Australia, like the United States, has been affected in a special way, in the wake of October's Bali bombing, which claimed the lives of some 190 people, most of them Australians.

Matt Peacock, chief European correspondent for the Australian Broadcasting Corporation, told RFE/RL that the words of Prime Minister Howard and his defense minister must be understood within this context. "I think it is [principally] aimed at the domestic audience and certainly the government's also considering launching some kind of an advertising campaign, so I'm told from Canberra. It's a bit like [the World War II slogan,] 'Loose Lips Sink Ships,' only different -- a be-on-the-lookout-for-terrorists-kind of campaign. All of that you would expect to play to the domestic audience, as evidence that the government is standing firm against terrorism, so to speak," Peacock said.

Peacock said Howard has a record of making occasional comments that antagonize Australia's Asian neighbors, but having just won a re-election, he probably feels such statements will continue to score him points at home. "Mr. Howard in the past has never been overly concerned about offending Asian sensibilities. You might recall, at one stage, where he talked about being the '[deputy] sheriff to the United States,' and that got him into an awful lot of trouble in Asia. But if it came to a crunch, I think you'd have to say that he's more concerned about aligning himself closely with the United States than he is with Asia," Peacock said.

Peacock said that despite the sharp rhetoric from Canberra, he does not expect Australia to launch any type of preemptive military action on its own. "I don't think Australia would ever do anything, in the current climate, without certainly being very much in touch with the United States. It is conceivable, I suppose, that they may have some very specific intelligence of activity, for example, in a place like Indonesia, where the central government's control is not all that good in some of the outlying areas. It's conceivable, but I think that it's still unlikely, because the risks of Australia taking some preemptory action in another country, particularly a country with strong national pride, like Indonesia, would be just too great. And it would create so much antagonism that I think it would be absolutely the last resort," Peacock said.

But Koechler fears that statements such as those made by Australia's leaders take the world further down a slippery and dangerous slope. "This is the real danger which I see, that the development of international law is now being reversed in a certain sense. Up to now, progress in the field of international law meant that there were restrictions on the use of force and there was an elaborate set of rules defining the criteria for the use of force. But now, everything seems to be heading toward a kind of self-help system which is closer to anarchy than the international rule of law. And I see the danger that precedents may have been set by previous unilateral actions," Koechler said.

To date, the United States, Israel, Russia, and now Australia have declared their right to act unilaterally and preemptively to parry threats to their security. Will the list stop there?