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A Dangerous Precedent :Bush Doctrine of Pre-emptive/ Preventive Aggression- PDF Print E-mail
Peace News
Saturday, 12 July 2008 00:17
 

PEJ News - Joan Russow - Global Compliance Research Project.

In 1947, Article 9, the ³no-war² clause of the Japanese Constitution was passed, but in 2008 it is under threat. This unique clause emulates the fundamental objective of the Charter of the United Nations: to prevent the scourge of war. In contrast, the Bush Doctrine of preemptive/preventive aggression violates this fundamental objective and has been a dangerous precedent. Rather than Japan being pressured to change its Constitution, all states should emulate Article 9 in their constitutions and move towards the de-legitimization of war. Also, to end further pre-emptive/preventive US aggression, the global community must try the Bush regime at an international tribunal set up under article 22 of the UN Charter, by the United Nations General Assembly.

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ARTICLE 9 OF THE CONSTITUTION OF JAPAN

"ARTICLE 9. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.
(2) In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized."

On May 4-5 there was the Article 9 Global Peace Conference in Makuhari; on the http://thepeacewalk.com/ the Conference and Peace Walk are described:
"The Walk is officially over. Eleven of us walked over 1,600 Kilometers, a total of over 7,000 people came out to walk in support of Article 9, and many more people put in countless hours organizing and preparing support for the peacewalkers. We want to thank you all for the work you put in to make this Walk possible.

The Article 9 Global Peace Conference in Makuhari sold out; the event held 15,000 people, and we heard that there were another 2,000 people outside waiting to get in. This shows the dedication that the people in Japan have for peace."
Hopefully, Japan will be able to resist the pressure, from the United States, to change Article 9. (Reported in a PBS documentary).

The serious irreversible human, environmental, health, psychological, economic and social consequences of war support the contention that under no conditions or circumstances is war legal or just, and that war must be de-legitimized as an option or even as a last resort. Article 9 should become the model for all states.

JAPANESE DOUBLE SPEAK; NO MILITARY BUT A ³SELF-DEFENCE FORCE²
The Government of Japan, however, has for some time now claimed that it does not have a ³military² but it has a ³self-defence force². While claiming to not strike first, Japan has been participating in Iraq as part of the ³Coalition of the Willing² in what has definitely been a belligerent operation. David Fouse, in his 2007 paper entitled ³Japan¹s Dispatch of the Ground Self-Defense Force: A New Kind of Operation² :
On December 9, 2003 the Japanese Diet passed the Humanitarian Relief and Iraqi Reconstruction Special Measures Law, allowing the government to send the Self-Defense Forces (SDF) to Iraq. Although some critics felt the dispatch violated Article 9 of the Japanese Constitution, the Japanese government justified the operation through reference to UN Resolutions 1483 and 1511, which sanctioned the contribution of humanitarian and reconstructive assistance to Iraq. The Ground Self-Defense Force (GSDF) ordered its 2nd Division in Ashikawa, Hokkaido to begin selecting personnel to be dispatched, and the first troops arrived at the Dutch military base in Samawah on January 19, 2004. From that moment until their redeployment in June 2006, the GSDFand the entire Japanese foreign policy apparatus faced a number of unprecedented challenges in carrying out their mission to conduct medical support, water supply and restoration and reconstruction of schools and other public facilities in the Iraqi province of Muthana.

Although the Iraq deployment was legitimized by the Japanese government under UN resolutions, the GSDF would carry out their mission within the ³coalition of the willing², organized by the United States and without the type of UN guidelines that Japanese peacekeeping forces had previously operated under. This meant that the mission was much more open-ended, with less general guidance than the GSDF had been accustomed to in previous overseas deployments. Much of the planning had to be carried out on a day-to-day basis through liaison with the Iraqi public and coalition forces. Although this posed unique challenges, Japan gained valuable experience, participating in a true multilateral operation for the first time, working closely with the Dutch, Australians and the British. Through discussions with its coalition partners, Japan learned to integrate its diplomatic and military resources in a process that was quite different from previous UN-organized deployments. The uniting principle among the various Japanese agencies and services involved was that the key issue was to complete the mission safely. Implications for the future role of the SDF were at stake.

DISTINCTION BETWEEN PREEMPTIVE AND PREVENTIVE AGGRESSION

The US already has misused Article 51 - self-defence - of the Charter of the United Nations (see section below) in justifying the invasion of Afghanistan. Although this misuse of the self-defence clause appeared to be accepted by most of the citizens of the US, generally there was serious international concern about its misuse. Prior to the invasion of Iraq, this misuse of justification of ³self-defence² was extended even further in the Bush Administration adoption of the Doctrine of Preemptive/Preventive Aggression.

On September 20, 2002, the Bush Administration unveiled its new National Security Doctrine, which confounded the two terms preemptive and preventive. On October 7, 2002, while Senator Ted Kennedy appeared to not oppose the notion of preemptive, he did make the following distinction between preemptive and preventive aggression in his speech to Congress:

"the Administration often uses the terms "preemptive" and "preventive" interchangeably. In the realm of international relations, these two terms have long had very different meanings.

Traditionally, "preemptive" action refers to times when states react to an imminent threat of attack. For example, when Egyptian and Syrian forces mobilized on Israel's borders in 1967, the threat was obvious and immediate, and Israel felt justified in preemptively attacking those forces. The global community is generally tolerant of such actions, since no nation should have to suffer a certain first strike before it has the legitimacy to respond.
By contrast, "preventive" military action refers to strikes that target a country before it has developed a capability that could someday become threatening. Preventive attacks have generally been condemned. For example, the 1941 sneak attack on Pearl Harbor was regarded as a preventive strike by Japan, because the Japanese were seeking to block a planned military buildup by the United States in the Pacific."


BOTH PREEMPTIVE AND PREVENTIVE AGRESSION MUST BE PROHIBITED: THE DE-LEGITIMIZATION OF WAR

Sadly, the United Nations has been equated with the UN Security Council, (UNSC) which is deemed to be able to bestow legality under Article VII of the Charter of the United Nations, on an invasion of another state. The UN Security Council violates a fundamental principle in the Charter of the United Nations: the principle of sovereign equality and, by being given the power to bestow legitimacy on an act of war, violates the fundamental purpose of the Charter of the United Nations- to prevent the scourge of war. The UN Security Council should be abolished and the UNGA should be strengthened.

The seeds for de-legitimizing war have been planted through the Charter of the United Nations, and through over 60 years of UN instruments. For years, member states have incurred obligations under the charter, treaties, conventions, and covenants, made commitments under conference action plans, and created expectations through UN General Assembly Resolutions and Declarations that would, if implemented and enforced, give substance to the de-legitimization of war. From these instruments, peremptory norms which further the rule of international law can be extracted.

Under the Preamble of the Charter of the United Nations the fundamental purposes of the Charter are delineated:
-to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind [humanity];
-to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and
- to promote social progress and better standards of life in larger freedom.

Chapter VII, of the Charter of the United Nations contravenes the purpose of the Charter: to prevent the scourge of war. Unfortunately, under international law, an invasion of another state is deemed to be legal if the UN Security Council, under Chapter VII, deems that the necessary conditions required for a war to be "legal" have been met. Also under Article 5- self-defence has been used to justify so-called preemptive/preventive aggression.

Chapter VI, entitled "peaceful solutions of disputes", of the Charter of the United Nations, however, does conform to and uphold the fundamental purposes of the Charter of the United Nations, advances the de-legitimization of war, and promotes respect for the rule of international law through the International Court of Justice.

Under Chapter VI of the Charter of the United Nations, a number of provisions have been established to bring about the peaceful settlement of disputes:

(i) The first provision is to counter conflict of interest in decision-making related to peaceful solutions of disputes.
Decisions under Chapter VI are constrained by Article 27, which reads that a party to a dispute shall abstain from voting. This provision, which is present in Chapter VI, is absent in Chapter VII, and is consistently violated by the UN Security Council.

(ii) The second provision to bring about peaceful settlement of disputes is recourse, under Article 36, to the rule of international law, through the International Court of Justice:
Article 36 reads: "legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court".

Chapter XIV complements Chapter VI in outlining the role of the International Court of Justice.
Under Chapter XIV, Article 92 states that the International Court of Justice shall be the principal judicial organ of the United Nations...and under Article 93 all members of the UN are ipso facto parties to the statute of the International Court of Justice, and under Article 94, each member of the United Nations undertakes to comply with the decision of the International Court of Justice in a case to which it is a party, and under Article 96 there is the provision for the UN General Assembly, UN Security Council and other organs of the UN to request the International Court of Justice to give an advisory opinion on any legal question.

Under the Charter of the United Nations there is an important principle ­ the principle of sovereign equality; this principle is violated by the UN Security Council but respected by the UN General Assembly. The permanent members of the UN Security Council continually attempt to invoke Chapter VII of the Charter of the United Nations.

To prevent the scourge of war and to remove the conditions which are claimed to support the legality of war, the global community must definitively concur that the conditions that have been used to declare war to be legal must be abandoned.

- Chapter VII which condones conditional legitimization of war in contravention of the purpose of the UN Charter itself must be struck.

- Chapter VI of the Charter of United Nations must be strengthened and, in particular, the instituting of the mandatory requirement for states to appear before the International Court of Justice, to accept its jurisdiction and to act on its decisions, and for the panel to support the rephrasing of Article 36 to read "legal disputes 'shall' rather than 'should as a general rule', be referred by the parties to the International Court of Justice..."


THE CENTRAL ROLE OF THE UN GENERAL ASSEMBLY: UNITING FOR PEACE RESOLUTION

In 1951, when the UN Security Council was unable to come to an agreement, Resolution 377 (V), entitled "Uniting for Peace", was passed by the UN General Assembly. The purpose of the Resolution was to recognize the responsibility of the UN General Assembly to prevent the scourge of war. In the Preamble of the Resolution is the following expression of the role to the UN General Assembly:

"if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security. If not in session at the time, the General Assembly may meet in emergency special session within twenty-four hours of the request therefor. Such emergency special session shall be called if requested by the Security Council on the vote of any seven members, or
by a majority of the Members of the United Nations."

ADDITIONAL ROLE OF THE UN GENERAL ASSEMBLY: SETTING UP INTERNATIONAL TRIBUNALS

When the leader of any state, under any guise, including the misconstruing of Article 51- self-defence, demonstrates defiance of the fundamental principles and peremptory norms established through the UN system, the UN General Assembly must invoke Article 22, which would permit the UN General Assembly to set up an international tribunal to judge a leader for contributing to crimes against the peace.

EXTENDING PEACEFUL RESOLUTION OF DISPUTES TO ALSO APPLY TO THE PREVENTION OF CONFLICT IN MAINTAINING TRUE SECURITY

If there is to be peaceful resolution of disputes the larger spectrum, in preventing conflict, must be recognized and reflected in maintaining true global security through the compliance with international peremptory norms reflected in the years of international instruments; these norms can be derived from international instruments that have the following objectives:
€ to achieve a state of peace and disarmament; through reallocation of military expenses
€ to create a global structure that respects the rule of law and the International Court of Justice;
€ to enable socially equitable and environmentally sound employment, and ensure the right to development and social justice;
€ to promote and fully guarantee respect for human rights including labour rights, civil and political rights, social and cultural rights - right to food, right to housing, right to safe drinking water and sewage, right to education and right to universally accessible not-for-profit health care system;
€ to ensure the preservation and protection of the environment, the respect for the inherent worth of nature beyond human purpose, the reduction of the ecological footprint and move away from the current model of unsustainable and overconsumptive development.

For example, given the serious threat of climate change to peace and security, the UN Security Council Resolution must be extended to involve women in the prevention of conflict resulting from the dire consequences resulting from the conflict over the destabilising effects of climate change.


IN CONCLUSION, BOTH PREEMPTIVE AND PREVENTIVE AGRESSION MUST BE ENDED

To curb the US Doctrine of Preemptive/Preventive Aggression, the UN General Assembly must invoke this article and set up an international tribunal to try the Bush regime and prevent Bush from attacking Iran, and to prevent other states from emulating the combined doctrine of preemptive/preventive aggression.

 

Last Updated on Tuesday, 28 July 2015 07:14
 

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