hiphop
Rock n' Roll Doggie ALL ACCESS
I?ve done some research on attack and self-defense, and it seems that US policy-makers are trying to define the term self-defense newly for the upcoming attack on Iraq.
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senrs.com/first_punch.htm
"Can the United States attack Iraq out of self-defense even before Iraq fires a single shot? The answer could rewrite the rule book for the rest of the world.
Anticipatory self-defense sounds like a political oxymoron and reads like ancient riddle: Can a person hit back before the first punch is thrown? In military terms, if a first strike is meant to defend, is it really a first strike?
These are just the questions the White House has to answer ? and not just for itself, but for the rest of the world.
While the United States looks for evidence that could link the al Qaeda terrorist network to Saddam Hussein, President Bush is demanding a "regime change" in Iraq and mulling the means to accomplish it.
The option championed by U.S. allies ? including, as of last week, Britain ? would be to reinstate U.N. weapons inspectors and oust Saddam through stronger sanctions.
But several scenarios for an invasion by U.S. forces have been reported in the last two months and on Monday the White House's lawyers made clear that Bush would not need Congress' approval to send in troops. Also on Monday, Vice President Dick Cheney told a gathering hosted in Nashville, Tenn., by the Veterans of Foreign Wars that Iraq's action and hostility created "an imperative for pre-emptive attack."
Legal scholars say the United States could attack Iraq out of self-defense, even before Iraq fires a single shot at U.S. troops, citing a pre-Civil War military definition that's found a second life in the war on terrorism.
"What we must not do is in the face of a mortal threat is to give in to wishful thinking or willful blindness," Cheney said. "We will not simply look away, hope for the best and leave the matter for some future administration to resolve."
Instant and Overwhelming
Famed American politician Daniel Webster defined "anticipatory self-defense" more than 150 years ago when he wrote that self-defense before an attack was justified if the danger was "instant, overwhelming, leaving no choice of means and no moment of deliberation."
Webster's words followed a 1837 naval skirmish called the Caroline incident, in which a U.S. ship called the Caroline was attacked by the British, just above Niagara Falls. The British said the ship's passengers supported a rebellion in Canada. Webster responded with a letter that laid out his definition. Webster's words were later reaffirmed after World War II during the Nuremberg Trials.
Though untested, scholars say there is room for Caroline decisions in the U.N. Charter, the treaty that still lays the largest groundwork for stability between states. The 1951 charter holds that one military can only fight another in self-defense against "an armed attack."
However, scholars point out that Webster's definition leaves several loopholes. The United States has been contemplating an attack on Iraq since Sept. 11, and in some ways for more than a decade, so there's been plenty of "deliberation."
Instead, the White House has used the term "pre-emptive" rather than "anticipatory." The difference is slight, but some say significant: Scholars argue it could blur the point where a threat of attack is considered "overwhelming."
The Point of No Return
At a West Point graduation ceremony in June, Bush talked directly about how the United States would approach enemies in the war on terror, which now could include Iraq: "The war on terror will not be won on the defensive. We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge."
Bush's speech signaled a shift in the doctrine of U.S. military intervention. Troops were sent into Afghanistan after Sept. 11 to prevent another attack on the United States. In 1991, the U.S. military fought Iraq on behalf of Kuwait with the support of Congress and the U.N. Security Council. An invasion of Iraq ? conceivably with only the White House's approval ? could violate the international laws that the United States has championed since World War II.
Critics warn that the evidence the United States needs to attack ? the point of no return ? has not been clearly defined, and has no precedent. Would the United States wait to invade until there was proof Iraq had built a chemical, biological or nuclear weapon? Or would Bush send in troops as soon as Iraq had all the components?
"The standards for invasion now are pretty cut-and-dry: If you're attacked, you can respond," said Sean Murphy, a professor of international law at George Washington University, "But if you make anticipatory self-defense the standard, you open an enormous Pandora's Box."
Rewriting the Rules
Because Webster's ruling has widely defined anticipatory self-defense, if the United States reinterprets its own standard, it could set a new precedent for the rest of the world.
"International law is largely based on custom, and those customs can change with time and circumstance," said Frederick Kirgis, a professor at Washington and Lee University. "It's all whether you can get other nations to acquiesce to your assertions."
The major precedent for pre-emptive military action is Israel's Six-Day War in 1967, fought against Egypt, Syria, Jordan and Iraq. Israel invaded its neighbors, citing the need to pre-empt an enemy invasion, but never provided full evidence or rationale for its actions.
The rest of the world ? led by the United Nations ? largely condemned Israel for the attacks. Israel faced criticism again in 1981 ? including from the United States ? when it destroyed an Iraqi nuclear facility, claiming it needed to defend itself from the plant's capabilities.
If the United States was to invade Iraq without a first strike, legal experts said the global community would expect a formal reason.
The White House is expected to lay out a larger definition of pre-emptive self-defense ? as well as several other defense initiatives ? in its annual National Security Strategy, which will be published and presented to Congress in September, according to National Security Council spokesman Michael Anton."
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"What Prevents U.S. Attack on Iraq
Dave Eberhart, NewsMax.com
Wednesday, Jan. 9, 2002
When Deputy Defense Secretary Paul Wolfowitz indicated to the New York Times this week that the U.S.-led War on Terrorism would bypass Iraq and concentrate on outlaw sanctuaries in Somalia, Yemen, Indonesia and the Philippines, he did not surprise students of international law.
The dilemma of what to do about Iraq has always sounded in the vagaries of what is recognized by the United Nations? Charter and international law as acceptable means of self-defense. At the heart of the conundrum are the nettlesome buzzwords "pre-emptory attack,? or "anticipatory self-defense.?
And as soon as these watchwords appear in the mix, the "Caroline standard? is never far behind.
In 1837 British subjects destroyed an American vessel, the Caroline, in a U.S. port, justifying the act because the ship had been used in past American raids into Canadian territory.
The British claimed self-defense, but ultimately the dispute was decided in favor of the Americans, thanks to the statesmanship of no less a figure than Daniel Webster.
Secretary of State Webster offered the British a definition of "self-defense? that they could not reasonably refuse:
"There must be a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation. [The means of self-defense may involve] nothing unreasonable or excessive; since the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it.?
This has been a recognized rule in international law ever since ? a fact not lost on Secretary of State Colin Powell and the Bush administration.
Intrinsic in the rule: The more time that passes between the attack and the military response, the less it appears to be self-defense.
The most often-cited example of "anticipatory self-defense? and the application of the Caroline standard was Israel?s strike against an Iraqi nuclear reactor in 1981. Israel?s justification: Eventually, the materials and science developed at the reactor could have led to a nuclear-armed Iraq.
The U.N. Security Council condemned the attack because the threat to Israel, albeit foreseeable, was not "imminent.?
Despite the U.N. position, the matter was still gray enough to get mixed reviews from scholars of international law. A minority of experts maintained at the time and in hindsight that Israel indeed met the Caroline standard, because destroying the reactor may have been Israel?s last clear chance to avoid a nuclear attack.
Also complicating the Iraq equation is the recognition by Powell and the administration that the U.N. resolution announced in the wake of Sept. 11 did not give a green light to any means the U.S. chooses to take in ferreting out and destroying terrorists."
------------------------------------------------------------------------------------
august1.com/lectures/pil/lect-101/notes101.htm
3. Self-Defense
a. The UN Charter (Art. 51) allows states to use force for their own self-defense.
b. Definition of self-defense.
1) Not defined in the Charter.
2) The now generally accepted definition was first set out in the Caroline Case. It requires that a state claiming self-defense must show three things:
a) There must be "a necessity of self-defense": the action taken must be in response to some provocation and thusly justified.
1] UN Charter Art. 51 suggests that the right to self- defense may only be exercised after "an armed attack occurs."
2] The right to use self-defense in anticipation of another state?s attack has been claimed by some states.
Case 10-5. THE ENTEBBE INCIDENT
b) The provocation must have been "instant, overwhelming, leaving no choice of means, and no moment for deliberation."
1] A state claiming a right to self-defense must respond "promptly" to an armed attack.
Case 10-6. THE FALKLAND ISLANDS WAR
c) The action taken must be "proportionate to the seriousness of the circumstances: it must be "limited by that necessity, and kept clearly within it."
1] The principal of proportionality was succinctly defined in a 1927 report presented to the League of Nations: "Legitimate defense implies the adoption of measures proportionate to the seriousness of the attack and justified by the seriousness of the danger."
------------------------------------------------------------------------------------
www.atimes.com/atimes/Middle_East/DJ09Ak02.html
The case against preemption
By Peter Mark
The Bush administration threatens a preemptive attack on Iraq. It is important to ask what affect such an attack might have on the relationship of the United States to the rest of the international community. Almost without exception, America's closest allies have voiced opposition to a military attack against Iraq.
What might their response be if the US actually carries out its threats? In the light of widespread international opposition to the use of military force against Saddam Hussein's government, it is important for American citizens to ask: can such a preemptive use of military force against another nation be justified by international law?
Here, succinctly, are some elements of international law that relate to the situation between the United States and Iraq.
An important principle of international law is the avoidance of armed force. Article 2-4 of the United Nations Charter prohibits all recourse to military force, including war. The US is a signatory member of the United Nations and must therefore respect the charter.
Article 2 of the UN Charter: The Organization and its members, in pursuit of the purposes stated in Article 1, shall act in accordance with the following principles ... 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.
Would the use of armed force against Iraq be compatible with the aims of the United Nation? Article 51 of the charter authorizes the use of armed force for legitimate self-defense, but this right is applicable only if a member of the United Nations is the object of an armed aggression.
Article 51 of the United Nation Charter:
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. Measures taken by members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
Armed intervention is justified under the following conditions:
1. The existence of armed aggression (the definition adopted by the UN General Assembly, Resolution 3314 of 1974): Aggression is defined as the use of armed force by one state, against the sovereignty, territorial integrity or political independence of another state.
2. The absence of necessary measures by the UN Security Council to maintain peace. Once the Security Council has taken these measures, the right to armed self-defense ceases. A state that takes measures of legitimate self-defense is obligated to inform the Security Council.
3. Legitimate defense only justifies "those measures proportional to the armed aggression that has occurred, and that are necessary for ending that aggression." (International Court of Justice, June 27, 1986 in re Nicaragua).
Self-defense only warrants "measures which are proportional to the armed attack and necessary to respond to it". It implies that the victim of aggression must not occupy the aggressor state's territory, unless strictly necessary.
The use of armed force may on occasion be justified as part of humanitarian assistance, but only in order to prevent human suffering and "to protect life and health and to ensure the respect of persons" (International Court of Justice, June 27, 1986 in re Nicaragua). Such intervention must not be discriminatory.
In each of these cases, it is clear that the United States does not have the right to intervene without the approval of the Security Council. Nevertheless, on several occasions the US has used the argument of Article 51 of the UN charter to justify attacks that do not fall within the domain of legitimate defense:
- In 1986 against Libya (to justify an attack that caused the death of 37 people, mostly civilians) in reprisal for the bombing of a Berlin disco that caused the death of an American soldier.
- In 1993 against Iraq (purportedly to prevent an assassination attempt against the US president orchestrated by Iraq).
The rationale of anticipatory self-defense has been invoked by Israel to justify attacks against Palestinian camps in Lebanon in 1975. Subsequently, UN Security Council resolutions have condemned this attack while contesting the idea of self-defense where there has been no armed intervention by the "aggressor".
The thesis of anticipatory self-defense is thus not an acceptable principle of international law today, because it is prone to arbitrary interpretation. A preemptive attack on another sovereign nation is counter to established and universally accepted standards of international law. This may help to explain the vehemence of opposition to a preemptive attack, among even our staunchest European allies.
------------------------------------------------------------------------------------
senrs.com/first_punch.htm
"Can the United States attack Iraq out of self-defense even before Iraq fires a single shot? The answer could rewrite the rule book for the rest of the world.
Anticipatory self-defense sounds like a political oxymoron and reads like ancient riddle: Can a person hit back before the first punch is thrown? In military terms, if a first strike is meant to defend, is it really a first strike?
These are just the questions the White House has to answer ? and not just for itself, but for the rest of the world.
While the United States looks for evidence that could link the al Qaeda terrorist network to Saddam Hussein, President Bush is demanding a "regime change" in Iraq and mulling the means to accomplish it.
The option championed by U.S. allies ? including, as of last week, Britain ? would be to reinstate U.N. weapons inspectors and oust Saddam through stronger sanctions.
But several scenarios for an invasion by U.S. forces have been reported in the last two months and on Monday the White House's lawyers made clear that Bush would not need Congress' approval to send in troops. Also on Monday, Vice President Dick Cheney told a gathering hosted in Nashville, Tenn., by the Veterans of Foreign Wars that Iraq's action and hostility created "an imperative for pre-emptive attack."
Legal scholars say the United States could attack Iraq out of self-defense, even before Iraq fires a single shot at U.S. troops, citing a pre-Civil War military definition that's found a second life in the war on terrorism.
"What we must not do is in the face of a mortal threat is to give in to wishful thinking or willful blindness," Cheney said. "We will not simply look away, hope for the best and leave the matter for some future administration to resolve."
Instant and Overwhelming
Famed American politician Daniel Webster defined "anticipatory self-defense" more than 150 years ago when he wrote that self-defense before an attack was justified if the danger was "instant, overwhelming, leaving no choice of means and no moment of deliberation."
Webster's words followed a 1837 naval skirmish called the Caroline incident, in which a U.S. ship called the Caroline was attacked by the British, just above Niagara Falls. The British said the ship's passengers supported a rebellion in Canada. Webster responded with a letter that laid out his definition. Webster's words were later reaffirmed after World War II during the Nuremberg Trials.
Though untested, scholars say there is room for Caroline decisions in the U.N. Charter, the treaty that still lays the largest groundwork for stability between states. The 1951 charter holds that one military can only fight another in self-defense against "an armed attack."
However, scholars point out that Webster's definition leaves several loopholes. The United States has been contemplating an attack on Iraq since Sept. 11, and in some ways for more than a decade, so there's been plenty of "deliberation."
Instead, the White House has used the term "pre-emptive" rather than "anticipatory." The difference is slight, but some say significant: Scholars argue it could blur the point where a threat of attack is considered "overwhelming."
The Point of No Return
At a West Point graduation ceremony in June, Bush talked directly about how the United States would approach enemies in the war on terror, which now could include Iraq: "The war on terror will not be won on the defensive. We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge."
Bush's speech signaled a shift in the doctrine of U.S. military intervention. Troops were sent into Afghanistan after Sept. 11 to prevent another attack on the United States. In 1991, the U.S. military fought Iraq on behalf of Kuwait with the support of Congress and the U.N. Security Council. An invasion of Iraq ? conceivably with only the White House's approval ? could violate the international laws that the United States has championed since World War II.
Critics warn that the evidence the United States needs to attack ? the point of no return ? has not been clearly defined, and has no precedent. Would the United States wait to invade until there was proof Iraq had built a chemical, biological or nuclear weapon? Or would Bush send in troops as soon as Iraq had all the components?
"The standards for invasion now are pretty cut-and-dry: If you're attacked, you can respond," said Sean Murphy, a professor of international law at George Washington University, "But if you make anticipatory self-defense the standard, you open an enormous Pandora's Box."
Rewriting the Rules
Because Webster's ruling has widely defined anticipatory self-defense, if the United States reinterprets its own standard, it could set a new precedent for the rest of the world.
"International law is largely based on custom, and those customs can change with time and circumstance," said Frederick Kirgis, a professor at Washington and Lee University. "It's all whether you can get other nations to acquiesce to your assertions."
The major precedent for pre-emptive military action is Israel's Six-Day War in 1967, fought against Egypt, Syria, Jordan and Iraq. Israel invaded its neighbors, citing the need to pre-empt an enemy invasion, but never provided full evidence or rationale for its actions.
The rest of the world ? led by the United Nations ? largely condemned Israel for the attacks. Israel faced criticism again in 1981 ? including from the United States ? when it destroyed an Iraqi nuclear facility, claiming it needed to defend itself from the plant's capabilities.
If the United States was to invade Iraq without a first strike, legal experts said the global community would expect a formal reason.
The White House is expected to lay out a larger definition of pre-emptive self-defense ? as well as several other defense initiatives ? in its annual National Security Strategy, which will be published and presented to Congress in September, according to National Security Council spokesman Michael Anton."
------------------------------------------------------------------------------------
"What Prevents U.S. Attack on Iraq
Dave Eberhart, NewsMax.com
Wednesday, Jan. 9, 2002
When Deputy Defense Secretary Paul Wolfowitz indicated to the New York Times this week that the U.S.-led War on Terrorism would bypass Iraq and concentrate on outlaw sanctuaries in Somalia, Yemen, Indonesia and the Philippines, he did not surprise students of international law.
The dilemma of what to do about Iraq has always sounded in the vagaries of what is recognized by the United Nations? Charter and international law as acceptable means of self-defense. At the heart of the conundrum are the nettlesome buzzwords "pre-emptory attack,? or "anticipatory self-defense.?
And as soon as these watchwords appear in the mix, the "Caroline standard? is never far behind.
In 1837 British subjects destroyed an American vessel, the Caroline, in a U.S. port, justifying the act because the ship had been used in past American raids into Canadian territory.
The British claimed self-defense, but ultimately the dispute was decided in favor of the Americans, thanks to the statesmanship of no less a figure than Daniel Webster.
Secretary of State Webster offered the British a definition of "self-defense? that they could not reasonably refuse:
"There must be a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation. [The means of self-defense may involve] nothing unreasonable or excessive; since the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it.?
This has been a recognized rule in international law ever since ? a fact not lost on Secretary of State Colin Powell and the Bush administration.
Intrinsic in the rule: The more time that passes between the attack and the military response, the less it appears to be self-defense.
The most often-cited example of "anticipatory self-defense? and the application of the Caroline standard was Israel?s strike against an Iraqi nuclear reactor in 1981. Israel?s justification: Eventually, the materials and science developed at the reactor could have led to a nuclear-armed Iraq.
The U.N. Security Council condemned the attack because the threat to Israel, albeit foreseeable, was not "imminent.?
Despite the U.N. position, the matter was still gray enough to get mixed reviews from scholars of international law. A minority of experts maintained at the time and in hindsight that Israel indeed met the Caroline standard, because destroying the reactor may have been Israel?s last clear chance to avoid a nuclear attack.
Also complicating the Iraq equation is the recognition by Powell and the administration that the U.N. resolution announced in the wake of Sept. 11 did not give a green light to any means the U.S. chooses to take in ferreting out and destroying terrorists."
------------------------------------------------------------------------------------
august1.com/lectures/pil/lect-101/notes101.htm
3. Self-Defense
a. The UN Charter (Art. 51) allows states to use force for their own self-defense.
b. Definition of self-defense.
1) Not defined in the Charter.
2) The now generally accepted definition was first set out in the Caroline Case. It requires that a state claiming self-defense must show three things:
a) There must be "a necessity of self-defense": the action taken must be in response to some provocation and thusly justified.
1] UN Charter Art. 51 suggests that the right to self- defense may only be exercised after "an armed attack occurs."
2] The right to use self-defense in anticipation of another state?s attack has been claimed by some states.
Case 10-5. THE ENTEBBE INCIDENT
b) The provocation must have been "instant, overwhelming, leaving no choice of means, and no moment for deliberation."
1] A state claiming a right to self-defense must respond "promptly" to an armed attack.
Case 10-6. THE FALKLAND ISLANDS WAR
c) The action taken must be "proportionate to the seriousness of the circumstances: it must be "limited by that necessity, and kept clearly within it."
1] The principal of proportionality was succinctly defined in a 1927 report presented to the League of Nations: "Legitimate defense implies the adoption of measures proportionate to the seriousness of the attack and justified by the seriousness of the danger."
------------------------------------------------------------------------------------
www.atimes.com/atimes/Middle_East/DJ09Ak02.html
The case against preemption
By Peter Mark
The Bush administration threatens a preemptive attack on Iraq. It is important to ask what affect such an attack might have on the relationship of the United States to the rest of the international community. Almost without exception, America's closest allies have voiced opposition to a military attack against Iraq.
What might their response be if the US actually carries out its threats? In the light of widespread international opposition to the use of military force against Saddam Hussein's government, it is important for American citizens to ask: can such a preemptive use of military force against another nation be justified by international law?
Here, succinctly, are some elements of international law that relate to the situation between the United States and Iraq.
An important principle of international law is the avoidance of armed force. Article 2-4 of the United Nations Charter prohibits all recourse to military force, including war. The US is a signatory member of the United Nations and must therefore respect the charter.
Article 2 of the UN Charter: The Organization and its members, in pursuit of the purposes stated in Article 1, shall act in accordance with the following principles ... 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.
Would the use of armed force against Iraq be compatible with the aims of the United Nation? Article 51 of the charter authorizes the use of armed force for legitimate self-defense, but this right is applicable only if a member of the United Nations is the object of an armed aggression.
Article 51 of the United Nation Charter:
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. Measures taken by members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
Armed intervention is justified under the following conditions:
1. The existence of armed aggression (the definition adopted by the UN General Assembly, Resolution 3314 of 1974): Aggression is defined as the use of armed force by one state, against the sovereignty, territorial integrity or political independence of another state.
2. The absence of necessary measures by the UN Security Council to maintain peace. Once the Security Council has taken these measures, the right to armed self-defense ceases. A state that takes measures of legitimate self-defense is obligated to inform the Security Council.
3. Legitimate defense only justifies "those measures proportional to the armed aggression that has occurred, and that are necessary for ending that aggression." (International Court of Justice, June 27, 1986 in re Nicaragua).
Self-defense only warrants "measures which are proportional to the armed attack and necessary to respond to it". It implies that the victim of aggression must not occupy the aggressor state's territory, unless strictly necessary.
The use of armed force may on occasion be justified as part of humanitarian assistance, but only in order to prevent human suffering and "to protect life and health and to ensure the respect of persons" (International Court of Justice, June 27, 1986 in re Nicaragua). Such intervention must not be discriminatory.
In each of these cases, it is clear that the United States does not have the right to intervene without the approval of the Security Council. Nevertheless, on several occasions the US has used the argument of Article 51 of the UN charter to justify attacks that do not fall within the domain of legitimate defense:
- In 1986 against Libya (to justify an attack that caused the death of 37 people, mostly civilians) in reprisal for the bombing of a Berlin disco that caused the death of an American soldier.
- In 1993 against Iraq (purportedly to prevent an assassination attempt against the US president orchestrated by Iraq).
The rationale of anticipatory self-defense has been invoked by Israel to justify attacks against Palestinian camps in Lebanon in 1975. Subsequently, UN Security Council resolutions have condemned this attack while contesting the idea of self-defense where there has been no armed intervention by the "aggressor".
The thesis of anticipatory self-defense is thus not an acceptable principle of international law today, because it is prone to arbitrary interpretation. A preemptive attack on another sovereign nation is counter to established and universally accepted standards of international law. This may help to explain the vehemence of opposition to a preemptive attack, among even our staunchest European allies.