Legal Experts:  Pre-emptive War Illegal 

by Christopher Bollyn 

December 4, 2002

Bush's policy of "preemptive action" opens the door to global gangsterism. Through its words and deeds the administration of President Bush has shown its intent to disregard international law and pursue a criminal policy of "preemptive action," having adopted the Israeli term for what is otherwise known as "war of aggression."

"The president, of course, supports preemptive action," White House spokesman Ari Fleischer said on Dec. 2. "The president has said that is part of America's doctrine because of the different nature of terrorism."

Fleischer was responding to a reporter who had misquoted John Howard, the Australian prime minister, by saying: "Australia intended to take preemptive military action to fight terrorists in the wake of the Bali attack."  The reporter then asked: "Does the president support the preemptive military action against terrorists in Asia?"

Howard's contentious remarks about preemptive action were taken out of context and resulted in a flurry of protest from a host of Asian states.  Howard had said that the UN charter on self defense needed to be amended to allow states to use preemptive action against threats of terrorism.

The UN Charter is a treaty binding upon the United and other member states.  The UN Charter prohibits the use of force by a state that is not subject to an armed attack. Article 2 stipulates the states renounce "the threat or use of force against the territorial integrity or political independence of any state."

Speaking about "non-state terrorism," Howard said:  "All I'm saying - I think many people are saying - is that maybe the body of international law has to catch up with the new reality."

I asked Francis Boyle, professor of international law at the University of Illinois, about the legal questions.  Boyle said: "Howard said that the UN charter has to be amended to allow for preemptive strikes to be legal."

Calls to the White House were not returned.

As the judgment of the International Military Tribunal at Nuremberg in 1945 noted, "resort to a war of aggression is not merely illegal, but is criminal."

"To initiate a war of aggression," the tribunal declared in its judgment, "is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

UN Security Resolution1441, which sent the weapons inspectors back to Iraq, does not authorize any use of force against Iraq, Boyle said.  Secretary of State Colin Powell tried, and failed to get language into the resolution allowing the use of force, Boyle said.