A Sleeping Giant Awakens:  The United States Preemptive War

by Angela Shand

The possibility for round two of the America Iraqi saga seem almost inevitable, in the same way that American protest and opposition to the war against Iraq seem futile.  September 11, 2001 marked the beginning of war, war against terrorism; war against aggressors. The American Government has named Saddam Hussein the world's most perilous aggressor whom they believe poses a threat to the safety of America and the rest of the world. The President has said he believes that the Iraqi government has manufactured nuclear and biological weapons since the United Nations inspectors were ousted from Iraq in 1998 and in effect has declared war against Iraq.   However in 1961 when the United Nations passed a resolution declaring that the use of nuclear weapons was illegal, the United States did not concur with this resolution.   Despite America's decision to oppose the treaty that declared the possession of nuclear weapons by some countries illegal, they loathe other countries to produce or have nuclear weapons in their possession. America is ready to go to war with Iraq to eradicate suspected nuclear weapons, while they consider the manufacturing of nuclear weapons quite legal. Is not this hypocritical? On the other hand if Iraq does have nuclear weapons and is allowed to continue building an arsenal of such weapons of mass destruction, this could mean total annihilation of mankind.

'Yet this is the Ultimatum presented to us: Secure the conditions whereby men will entrust their security to a larger entity, or risk annihilation; persuade men that their salvation rests in the subordination of national and local interest to the interest of humanity, or endanger man 's future. ' Michael Harrison's address to the United Nations appealed to the members to protect mankind from annihilation by nuclear weapons was very compelling, but mankind's nature will not simply elect to giving up any evil intent.  Therefore, securing the peace with military action, if it becomes necessary, is absolutely important.

Mankind has evolved from the beginning of time to become a civilized society and throughout the years has discovered, and developed several new capabilities to the point of being capable of self-destruction.   According to Freud (Civilization and Its Discontent) in primitive times, men tried to find a purpose in life; hence, the birth of religion. The teachings of Christendom told men that their purpose was to serve a higher being ' their creator - and to obey his rules. Survival against the many influences of nature and the serving of their creator became men's relevance or purpose in life.  The teachings of Christendom also informed men that failure to follow the rules of their creator would cause them to suffer severe punishment. Men soon felt purposeless, they had to find other things to do; simply obeying and surviving were not enough; men started discovering, inventing and creating new things. After several discoveries were made, pain and suffering continued to haunt men, therefore, they continued on the quest for relief, and continued to seek pleasure to erase the suffering (unhappiness). Pleasure principles were applied to combat suffering. Men decided that there must be other purposes in life that would deter pain and give pleasure. The beginning and advancement of civilization brought about several more discoveries, and men's curiosity gave rise to invention after invention.  Several much needed devices, machinery and technological equipment necessary for a growing civilized society were created and is still evolving, but unfortunately the advent of nuclear, and biological weapons also became a part of these inventions.

Civilization's furtherance not only forced men to start journeying beyond their local communities in search of fresh endeavors, but also brought about the start of communication with other countries in foreign regions.  This increase in international interaction facilitated the increase in travel, finance and trade. International law became necessary to control and ensure equitable transaction between states.  Originally, elements of ancient Jewish, Greek and Roman practice combined with newer Christian concepts were use as a base for the formation of international law.   However the awareness of our ability to self-destruct and destroy our environment led to more rigid treaties among states, to be used in the event of conflicts.   So, international law became a necessary measure to govern and ensure equitable transaction between states.  Some important theorist also helped in the formation of international law. One such person was the Dutch native; Hugo Grotius (1583-1645) who was known as the father of international law. OHis most recognized work which gave him this title was his 1625 masterpiece - De Jure Belle ac Pacis:  On the Law of War and Peace.  Some very intensive work was done on the formation of internation law, but to date there are countries and world leaders who simply do not operate within the law.  Aristotle in The Politics states that "For as man is the best of all animals when he has reached his full development, so he is worst of all when divorced from law and justice."

Why can 't we all just get along? This is a valid question, but unfortunately it is not practical if we again consider Freud 's theory about men (mankind). Will mankind ever prefer to totally indulge themselves in the more positive aspects of life versus the negative?   If Freud 's analysis about the id holds true, then it is almost impossible for mankind not to one day annihilate or extinct themselves from existence.  Mankind's good versus evil nature has been a global today. Freud described the id as the appetite or desire for material gain, the raw, irrational state of men's being and the cause of mankin's habitually malignant behavior - the natural instinct.   That natural instinct I refer to as the killer instinct.  According to Freud all men are born with this id, which is by the ego; the works more rationally ' it thinks things true before an act is committed. This ego works as the control mechanism for the id.  The super-ego, the conscience, he also describe has another control mechanism for the id.  Now, if we should consider Freud's findings on a much larger scale - a worldwide scale, it would bring us to question:  Do some countries consider themselves playing the role of the ego and the super ego in relation to other states (the id)?  How do we govern the id that fails to adhere to the law and treaties of international law?

Although a horrid reality of life, war is at times the only available option available for controlling the reign of tyrants (the id).  Thus, the question of preemptive strike or anticipatory self-defense is a practical prospect in the 'real world '  and it is recognized by international law. Therefore, there is no questioning the legality of such an endeavor, but instead, defining when and how to utilize it so it is not used negatively or with malicious intent.  For instance in 1986, on April 14 when American President Ronald Reagan employed an air strike against Libya, he justified the action under article 51 of the United Nations Charter which states that, '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. '

President Reagan claimed he used his inherent right of self-defense.  It could be argued at the time that the President chose this line of action out of malicious intent or as a form of aggression, seeing that it was not until three hours before the aircrafts were over Libyan territory that he actually informed congress of the air strike.   But considering that on April 6, 1986, only eight days prior to the air strike, about 50 United States military personnel were injured and one killed in a West Berlin nightclub bombing, which United States intelligence sources later attributed to the libyans, the retaliation seemed understandable.  Whether the intelligence reports were true or not, they were used as fuel to sanction the air strike.   The US claimed self - defense under Article 51 of the UN Charter as a deterrent of any future Libyan attacks.

March 24, 1986 almost two weeks before the air strikes marked another clash between Libyan and US forces.  Libya attacked US naval forces operating lawfully in the Gulf of Sidra n a military exercise.  Though the US defeated the Libyans, it could have been said that the president acted out of malice against Libyan leader Muammar el Qaddafi because of previous and ongoing conflicts at a time when it was said that Qaddafi was using terrorism as a resistance mechanism against western countries' intrusion into the middle east's political and civil customs.  Besides, the United States later (January 1989 revealed its possession of evidence proving that Libya was preparing to produce chemical weapons.  the US however, did not use the option of preemptive strike as expected by the international community, although they had little difficult convincing the world that Libya posed a possible threat to the US and the world.

An anticipatory or preemptive strike should only be used by a state if it is absolutely positive that the opposing state poses a threat to its citizens. Aggressors may make false accusation against their foe in order to misuse the United Nation's Charter on the allowance for preemptive strike. How can we say for sure what is in a person mind? We cannot. Yes, a state may have weapons of mass destruction like any other state; yes, they may not get along very well with some of their neighbor.  But how can one be sure of their aim? It is impossible to completely know their intentions. We can only speculate, but again, law is not an exact science. President Reagan ordered the attack against Libya without consulting Congress. Despite what was said and what the United States did or did not do or what Libya did or did not do, the case was based upon pure conjecture.

Article 38 (1) of the Statute of the International Court of Justice states the sources of international law treaties and conventions, customs, general principles of law, and judicial decisions and teachings. Treaties and conventions are usually the first source that the court turns to in settle dispute. As we already know treaties are agreements between states to settle dispute, handle human rights issues, foreign aid, navigation and the settlement of disputes. States sometimes break treaties or refuse to adhere to treaties and left other states with no other recourse but war. 'I would like to mention briefly today two particular issues which are of deep concern to all men: Disarmament and the establishment of true equality among men. Disarmament has become the urgent imperative of our time. I do not say this because I equate the absence of arms to peace or because I believe that bringing an end to the nuclear arms race automatically guarantees the peace, or because the elimination of nuclear warheads from the arsenals of the world will bring in its wake that change in attitude requisite to the peaceful settlement of disputes between nations. Disarmament is vital today, quite simple, because of the immense destructive capacity of which men dispose. ' Michael Harrison 's (War Speech) States sometimes disagree with each other over the presence or production of nuclear weapons, and though there may be no treaties between them regarding this matter, a breakdown in communication can evolve which my ensue in war. Disarmament does indeed prevent future attack from the states that have been disarmed; this also can be seen as a form of self-defense.

The Constitution of the United States empowered the President as the commander and chief of the Armed forces and has executive power to declare war. As commander and chief of the armed force, the President has the power to use his inherent right of self-defense. The constitution provision for war making goes as follows: 'Acts of war pursuant to a congressional declaration of war; acts of war authorized by statute; and acts of war pursuant to the President 's self-defense power under the commander in chief clause and the executive power clause of article II of the UN Charter. With the approval of congress the president can declare war, but if the threat is immediate and certain, the president can make the decision without congressional approval. Preemptive strike to protect the peace and defend a state and its citizens as deemed necessary is certainly permitted. Chapter VII of the UN Charter states that the Security Council shall determine the existence of any threat to the peace, breach of the peace or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with articles 41 to maintain or restore international peace and security. This is an empowering tool to the UN to deal with aggressors.

With no question about the legality of preemptive strike this takes us to the question of its effectiveness in judging who is an aggressor or who is actually acting out of self-defense. If it is deemed necessary for a state to defend itself, such state should exercise its inherent right of self-defense. Unequivocally, I endorse article 51 of the UN Charter and agree with preemptive strike as long as it is justified. In masking aggression preemptive strike can also be used. International law is not as strict as our local judicial system and sometimes leaders in the international political system are allowed to operate while their people live under oppressions and neighboring states live in fear. It is up to the member of the United Nations, the Internal Court of Justice, other member states to prevent such aggressors from manipulate the system of law.

Chapter 1 and Article 2 of the UN Charter states that 'All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice are not endangered. ' Peace-loving states have several options available to maintain peace and security. To elaborate further and quote Chapter VI of the UN Charter 'The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their own choice. ' These suggested means of dispute settlement are absolutely adequate. If a state really wish to maintain peace, it can endeavor to adhere to these suggestion and or other means which may seem more appropriate to its and the opposing state's needs.


Because we are aware of our ability to destroy the environment and ourselves and as well as causing serious suffering to others, lawmaking treaties are necessary to prevent and alleviate genocide, illigal testing of nuclear weapons, misuse of the oceans and to uphold laws governing human rights.  Although morality is not given a chapter in the science of international law, it is an imperative consideration if treaties are to function effectively.  In the movie, 'The Gladiator, ' Caesar Marcus Aurelius told his general, Maximus, that he would like him to lead Rome when he passed away, to which Maximus asked why not his Commodus -Cesar son, and Caesar replied that his son is not a moral man. Though this is only a Hollywood film, it portrays true principles we expect of our leaders.  A Leader who lacks sound moral judgment should not be given the responsibility of making just decisions on behalf of his people, because there will be no guarantee that his subjects and other states will be free of abuse.  neither should an immoral leader have any influence over the formation of treaties, this could interfere with the virtue oof any agreement between other leaders or states. 

As international law evolves western dominance impacts the way the law is set based on these dominant state's culture, moral standing and belief.  While this is happening there is more resistance from less developed countries to reject these laws because they feel they had no say or were not considered in the decision of these laws, which most times affect them adversely and are beneficial to the states that help to make the law. Imposition of powerful states over less developed countries has been a growing issue in international law. Western countries like the United States and European Dominance has been accused by less developed nations like Africa, Asians, Latin Americans and other non-westerners are disrupting their cultures.  These nations are apt to reject the laws set by the westerners.  Naturally the Western countries are more more apt to obey the laws more than these countries, because they are the ones who helped to enact these laws.  Martine Luther King spoke about just laws and unjust laws (Letter from Birmingham Jail) and made reference to the Holocaust where it was considered legal to prosecute Jews and illegal to offer assistance. Socrates also tried to define justice while his colleagues had many version or definitions to define this one thing that should be so naturally simple (The Republic of Plato).  Thrasymachus, in the same book, gave an interesting definition of justice. 'Just accordingly means what is for the interest of the stronger, ruling party, ' He believes that justice is achieved when an individual outdoes his opponent and benefits from his victory whether in money dealings or otherwise ' without any moral consideration.


'And let it here be noted that men are either to be kindly treated, or utterly crushed, since they can revenge lighter injuries, but not graver. Wherefore the injury we do to a man should be of a sort to leave no fear of reprisals. ' (Machievelli 's The Prince - page 4) Kindly treated would be good if mankind had the universal love that says love thy neighbor as I love myself as Freud wrote (Civilization and Its Discontent ' pg 68) 'Men are not gentle creatures who want to be loved, and who at the most can defend themselves if they are attacked; they are on the contrary creatures among whose instinctual endowments is to be reckoned a powerful share of aggressiveness. ' Freud explains that that neighbor that we are told to love merely because he or she is an inhabitant of this earth may detest us and loathe us, because that is men 's instinct to harm each other. Should mankind ensure their safety like Machiavelli states, by injuring our enemy to an extent that would any eliminate all possibilities of reprisals?   Preemptive strike works in this effect, if the opponent is given the opportunity to attack first; the other leaders should be or will be aiming for the same objective ' to eliminate the possibility of reprisals. Because laws are very complicated in international political system and enemy states can rise against each other and attack out of petty differences, it boils down to the fittest of the fittest surviving with the complicated guidance of the United Nations Charter, The International Court of Justice, Treaties, and though not a part of the law ' Morality.

The United Nations under resolution 1441 demanded from Iraq their full cooporation in allowing inspectors return to check for weapons of mass destruction.  Iraq has been accused of several act of aggression and non-compliance of the resolution over the years and as a result, the United States is in limbo waiting for a possible attack on Iraq. The United States President has belabored time and again the threat that Saddam posed to the United States and the rest of the world, therefore, article 51 or the UN Charter is the US's way to clarify its constant claim of imminent danger that Saddam posed to the US and the need for anticipatory self-defense. We have heard speculations about Saddam 's arsenal of weapons, but to date we have no proof of the current state of his weaponry.  If these accusations are true, and given Saddam's history on human rights and his Kuwait invasion in 1990, the Iraqi Kurds, and his fall out with the UN inspectors, then military action should not be spared.   America is not flawless either; it has been the center of several controversies concerning its unfair foreign policy practices with less developed nations.   These are less severe than the myriad acts of aggression that Iraq has been accused of, but nevertheless, unfair practices in the international political system.

After September11, 2001 attacks the US should be prepared take every precaution to protect its citizens and country. As Tony Blair questioned in his address to the United Nations, supposed he (Tony Blir) had come to them on September 10, 2001 and told them that there is an outlaw group by the name of al Qeada and gave them all the details about what they believed Al Qeada is planning to do, how would they have reacted?  A preemptive strike should be use if it can save lives and gives military advantage. Machiavelli said it is better to be feared than love. I say it is better to eliminate the fear. If a dictator exists and holds the world in fear with threat of biological and nuclear weapons, all effort must be made to eliminate that threat.  The victims of September 11, 2001 were civilians, they were not military personnel; an act of terrorism was committed against them.

'I never advocated war except as a means of peace. ' Ulysses S. Grant. Though peace may not be possible because of mankind instinct for killing and harming each other; sometimes war is necessary to facilitate at least temporary peace and minimize tyrany. Though aggressors may be able to concealed their aggression behind the UN charter as acting in self-defense, the UN and other states acting, as the ego and super ego should be acting as the protector of world peace, which is an impossible task. War can be minimized, however, complete peace is not pratical complete peace is not practical.  
"Injustice armed is hardest to deal with; and though man is born with weapons which he can use in the service of practical wisdom and virtue, it is all too easy for him to use them for the opposite purposes.  Hence man without virtue is the most savage, the most unrighteous..." Aristotle


I have had the opportunity to interview Lee Covino a Vietnam Veteran who was recently appointed by the mayor to sit on the City's Veterans Advisory Board along with four other advisor whose duty is to advise the mayor of veterans affairs on issues affecting New York City Veterans. 


Q.  What was it like to be in active duty during wartime?


A.   We had a draft; it was conscription, but I decided to volunteer, so I enlisted to fulfil my commitment before going to college.  I never had the opportunity to be really active or killing anybody or being shot at in any way.  I had to return home in less than two weeks after ariving in Vietnam, because I had a family emergency - my father was very sick.  I enlisted in the army in April 1970 and I served until December 1971.


Q.  Most people opposed war out of concern for the welfare of the soldiers, If you had the opportunity to be really active in war would you have volunteered?


A.  I opposed the war at the time and I felt that the best way to deal with that was to go in and opposed it from the inside.  In fact when I returned to the US, we (other soldiers) and myself started an underground newspaper called "Training Action" and distributed it in forth Dix, New Jersey.  This was our way of opposing the injustices we saw then.


Q.  You opposed the war in Vietnam; how do you feel now about te United States going to war with Iraq?


A.  War is something that I do not believe that anybody in government takes lightly.  Todays situation is much different than in vietnam where we kind of inherited the war from the French.  The French were there for at least a decade before the US; we were funding their war, and ultimately we took over from them.  The reasons there were very different from the reasons why we are looking at the middle east today.  The Middle East today is a herbage of islamic facism and the Islamic radicals has declared holy war on anybody who is not a Muslim.  They made this clear from their own mosque.  They are training children to bom innocent civilians.  New York City for the first time ever their's been an attack on the shores ot the United States against people going to work, who are not military targets, which to me makes it more critical than the Pearl harbor attack which we are looking at the anniversary tomorrow December 7th, which was a military target and was atttacked by military uniformed individuals.  So there is a lot of risk in those extremist countries to ones very existence and to our people.


Q.  The President is targeting Iraq right now, but don't you think that there are other countries out there, including the US that has nuclear weapons?


A.   Well, Iraq has had, and it was determined when the last inspection regimen was underway that they do have weapons of mass destruction and I'm sure that there's documentation from what I can understand of Iraq's involvement whith not only sheltering these fanatic Islamics, but also funding their efforts and there's a very long papertrail connection in those regards.  The reason I believe the president