Wednesday, October 30, 2002
Sense and nonsense about self-defence
GEORGE P FLETCHER
If patriotism is, as Samuel Johnson suggested, the last refuge of a scoundrel, then self-defence is the last refuge of an aggressor. The justification of self-defence comes readily to the lips of both paranoids and those who reasonably wish to defend themselves against imminent attack.
The argument for America’s putative invasion of Iraq is, of course, self-defence, that is, the need to shield itself and its allies against Saddam Hussein’s possible use of weapons of mass destruction.
But claims of “self-defence” also find less reputable invocations. Timothy McVeigh, the Oklahoma City bomber who murdered 168 people in 1995, thought he was defending the US Constitution against a predatory federal government. Yigal Amir thought he was defending Israel against a prime minister willing to surrender sacred land to the enemy when he assassinated Yitzak Rabin later in the same year.
Perpetrators of violent acts rarely concede that such acts are aggression pure and simple, rather than actions in defence of life, liberty, or some other important value.
Is there a sensible boundary between sense and nonsense in claiming self-defence? Lawyers must seek this distinction, for if we surrender to the rhetorical claims of statesmen and paranoids, the line between aggression and self-defence will disappear.
The UN has tried to delimit the scope of self-defence, but it goes too far by permitting states to resort to force only if “an armed attack occurs.” This makes little sense, because states must retain the right to defend themselves against impending attacks as well.
Imagine, say, the Japanese warplanes zeroing in on Pearl Harbour on 7 December, 1941. The United States Navy surely had the right to defend itself — if it could — before the bombs fell.
Or consider Nasser’s massing of Egyptian troops on Israel’s border in 1967, threatening to wipe it off the map. Is this not akin to a mugger pointing a gun at your head and threatening to shoot? If self-defence is not permissible in cases of manifest, imminent attack, then the doctrine can hardly appeal to ordinary moral intuitions.
But these clear examples quickly fade into an ambiguous and disputed range of cases, such as Israel’s fear of Iraq’s Osirak nuclear reactor in 1981. Building a nuclear reactor is a far cry from launching a nuclear missile.
Israel’s bombing of the Osirak reactor must, therefore, be regarded as a “pre-emptive” or a “preventive” strike — words meant to capture the shadow land of self-defence.
There is little point in struggling with the meaning of these elusive words, because both miss the point. Some say that the real point is the risk of attack and the destruction that might occur if weapons of mass destruction are deployed. They employ something like a cost/benefit analysis based on a subjective sense of danger.
But there is no way of making an objective assessment of fear, and even if it were possible, using cost/benefit analysis to invade the territory of another country would wreak havoc with the global system of national sovereignty and international law.
The better way to make sense of self-defence is to invoke two principles that underlie legal claims of justification in both domestic and international law. The first principle is reciprocity, which implies that if Israel had the right to attack the Osirak reactor, then Iraq had the right to bomb the Israeli nuclear facility at Dimona.
If America now has the right to attack Baghdad, then Iraq — which has made no public statements of aggressive intent toward the US — has the reciprocal right to attack Washington.
What is good for the goose must be good for the gander. There is no way for a state to claim as a matter of law: You are a “rogue” state and we are good guys, and therefore we operate under different rules. Admittedly, prior actions and intentions matter in making a judgement about whether to fear an attack.
In the relationship between Israel and Iraq, Saddam Hussein’s lobbing of scud missiles at Tel Aviv in 1991 has relevance in judging the dictator’s current intentions toward Israel. But there is no comparable evidence of Iraqi aggressive behaviour against US territory.
This brings into focus the second requirement of self-defence. Evidence of aggressive design must be public and visible to all. Publicity is a critical element in a legal culture.
Impending aggression cannot be documented in secret dossiers but only by events that can be filmed by CNN. The aggressor must do something that all can see as a dangerous threat by, for example, aiming a guided missile at a country and threatening to use it.
If we look back at irrational claims of individual self-defence — McVeigh, Amir, and others — we see that their fears were based on private evidence not shared by more than a small circle of friends and co-conspirators, at most. Insisting on public evidence provides some guarantee against paranoid self-defence by individuals and political manipulation by national leaders.
If the requirements of reciprocity and publicity are applied to the current plans to invade Iraq, the implications are clear. If they are not, President George W Bush risks engaging in unlawful aggression against a foreign country.
(The author is Cardozo Professor of Jurisprudence at Columbia Law School and the author, most recently, of “Romantics at War: Glory and Guilt in the Age of Terrorism.”)
(C): Project Syndicate, October 2002
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