Preemption and Unilateral Engagement

by Wayne McCormack

The hard-liners in Iran appear determined to provoke a first strike either from Israel or its Western allies. Fortunately, Dr. Hassan Rouhani, a more moderate candidate, secured a stunning victory with talk of rebuilding relations with the West and the U.S. in particular. It remains to be seen whether he can follow through on these aspirations in the face of the hard-liners, particularly among the ruling clerics, or whether he will be shut down as was Mohammad Khatami after he won the 1997 election.

Meanwhile, civil war rages in Syria with horrid levels of death and displacement. Secretary Kerry visited a refugee camp in Jordan and was asked “what is the U.S. waiting for,” as if there were some clear path through which we could intervene to reach a military solution. The political response to Syria thus far seems to have been just that Americans are tired of war and don’t want to engage in another, whether in Syria, Egypt, Mali, or any number of other potentially hotspots.

The Iranian foolhardy hard-liner attitude is reminiscent of Saddam Hussein’s provocations that prompted the U.S. into invasion of Iraq. Some of the actions of military and militants in Syria and Egypt, and now Libya again are likewise resulting in pressure on the U.S. for intervention. It may be helpful to rehearse why there are rules about going to war and how those rules tend to forestall foolhardy actions. For one thing, the perceptions of those who are personally involved in a dispute are highly likely to be flawed – that is why we refer disputes to neutral decision makers such as judges. For another, it is difficult for one nation to run another nation’s affairs, even with extraordinary military power at our disposal because people fighting for their homeland are not easy to govern.

But there is an even better reason why unilateral intervention in another nation’s problems is unwise, violence is subject to something like the multiplier effect in economics. Imagine this scenario on Poplar Street in Harvest Valley. Hanson down the street is a rather ill-tempered nasty sort of person. He was observed bringing home a bag of fertilizer on Saturday and then on Monday a container that could have been diesel fuel. Blare next door has heard Hanson talk admiringly about a gang known as the Baboons. Moreover, the neighborhood generally is aware that Hanson has been visited by social workers concerned about whether Hanson is abusing his children. With all this evidence, Blare believes that Hanson has the capability of building weapons of mass destruction, that he could lend material support to a gang that is likely to be involved in violence somewhere nearby, and besides he is a brutal dictator to his own people. Blare decides that Hanson should be eliminated as the head of household across the street and invades with a variety of weapons to secure the premises and bring peace to the Hanson family. Unfortunately, it turns out that, although some of the Hansons are delighted to have the old man out of the way, others are not at all happy with having their home invaded and start fighting back. Members of the Baboons, who had a trade deal with Hanson, sneak in to support the Hanson dissidents with clandestine violence. With all the violence that is now breaking out around the neighborhood, Poplar Street has become a very scary place.

To forestall this kind of unilateral intervention, we have developed rules in which Blare can file a complaint with the police, who will investigate with the sanction of a search warrant issued by a court, and eventually can make an arrest if it turns out that Hanson really is a threat. In this fashion, we have neutral disinterested observers making the decisions rather than relying on the likely flawed perceptions of those involved.

For nearly 6000 years, military leaders have understood that the deployment of military forces, or what is often called resort to the means of organized violence, should be occasioned only by self-defense and only to the extent necessary to accomplish a justified military objective. Of course, political and military leaders have disobeyed this understanding on innumerable occasions, but the concept has not changed dramatically. One very strong reason for at least paying lip service to these strictures has been self-interest: don’t do unto others what you would not want them to do unto you.

Is there ever occasion for the use of “preemptive action?” As set out by an exchange of correspondence between US and British authorities in 1832, which is generally regarded as the definitive statement on the subject, preemptive action into another nation’s territory can be justified when a threat from the other side is “instant, overwhelming, leaving no choice of means, and no moment of deliberation.” The problem in today’s world is that waiting until a nuclear threat is imminent may mean that you never have the chance to respond because the other guy’s first strike was lethal to your society. Of course, there remains the question of what Iran thinks it might do with a nuclear weapon. Surely, even the most irrational militarists must realize that any use of such a weapon would render their nation an instant wasteland from retaliatory strikes.

The United Nations was formed in 1948 with the avowed purpose of preventing future armed conflict except as it might be absolutely necessary. The significance of Security Council action is the collective judgment of the only organization that can speak for all the nations of the world. Flawed it may be, but in theory no nation can invade another nation without the authority of the UN Security Council. Any doctrine that attempts to justify unilateral preemptive action without an immediate threat is extremely dangerous, not just to global stability and security, but to the peace and security of our own nation.

Wayne McCormack is the E. W. Thode Professor of Law at the University of Utah S.J. Quinney College of Law. Professor McCormack teaches Constitutional Law, Counter-Terrorism, International Criminal Law, Torts, and Civil Procedure.