US' pre-emptive self-defence justification fails

By ALEXANDER GILLESPIE *

Denis Dutton's comments on the "intellectual laziness" of the critics of the invasion of Iraq has all the makings of a popular television show: it omits pivotal historical milestones, it is selective in its examples and it is full of sound-bites that are better suited to commercials than to serious thinking.

There are things we agree on: first, that terrorism is a vast threat and must be combated forcefully; secondly, that terrorists are seeking to acquire weapons of mass destruction and this must be prevented at all costs; and finally that these are largely wars about values and not economic resources.

Now for what I disagree with.

The argument about pre-emptive self-defence with which apologists from the Prime Minister of Australia to professors at Canterbury are gleefully taunting their neighbours completely fails to understand why the United Nations charter did not adopt the right of pre-emptive self-defence in 1945.

The UN refused to endorse that approach because of the way Germany, in part, justified its attack on Belgium in World War I: it had to do it because it feared that if it did not, Britain would sweep through Belgium first and attack it.

In World War II the leaders of Japan justified their attack on Pearl Harbour as pre-emptive self-defence because of a fear that the United States was getting ready to attack them (and the American sanctions imposed on Japan for its invasion of China were a first step in this process).

And, finally, Hitler invaded Russia because he was convinced the Russians were building armed forces on his border and were going to attack him if he did not attack first.

All three instances have something in common - they were wrong. In time, they might have been correct but at the time that the nations acted individually and catapulted the world into world wars they were wrong. Paranoia and mistaken military intelligence got the better of them.

It was because of such failings that the UN came to place so much emphasis upon collective reactions to international threats, and the centrality of international law.

The topic of law is my second bone of contention with Mr Dutton. He is correct that freedom and democracy are values of the highest order which are worth protecting.

However, to look only at these two values completely misses the third leg of the stool. Without this third leg, despite the best attempts at balance, those who sit on it will fall over. The third leg is law: the values we should be protecting are democracy, freedom and law.

The importance of law - as in a system of justice by which all are equal, and rights and duties in a community are balanced - is essential for the first two values of democracy and freedom to mean anything at all. Without a system of law, the goals of freedom and democracy become meaningless for those without power.

Here is the nub of the issue: it is not just a domestic concern; it has to be an international one.

Unless international law governs all, and the actions of the weak and strong are channelled through it, the global community becomes nothing more than the rule of those with the biggest voice.

This is why the preparation for war, the fighting of it and the cleaning up afterwards should be done by the international community as a whole, not the unelected sheriff.

The war should have been justified by the Security Council, the troops should have been international, and those responsible for crimes against their own people or others should be dealt with by the International Criminal Court, not whisked off to secret bases in Cuba in contravention of conventions designed years earlier after World War II to stop exactly this type of abuse.

My last concern is Dr Dutton's statement that in the early 1990s we were unable to comprehend religious fanatics willing to kill themselves in furtherance of their goals.

This implies that religious violence is somehow a modern development. Unfortunately, history is littered with religious zealots willing to martyr themselves and others in the process.

As scholars of the Reformation know all too well, Islam does not have a monopoly on this. Or in a contemporary sense, the Aum Shinrikyo attacks on the Tokyo subway in 1995 using (fortunately) poorly prepared chemical weapons involved a sect that derived some of its original ideas from Buddhism.

However, it is wrong to suggest that religious fanatics are the only ones to watch. Timothy McVeigh, in the US, was not religious in any sense of the word.

My point is simple: terrorists are not only likely to be religiously motivated. Murderers of the innocent come in all flavours.

* Alexander Gillespie, an associate professor at Waikato University's law school, is responding to Denis Dutton's view that US foreign policy is a rational response to the horrors of September 11.

Herald Feature: Iraq