States have the right to make
pre-emptive strikes on others

Far from ‘striking at the heart of international law’ as some have claimed, pre-emption has for centuries been a part of it, says Des Moore

The Canberra Times, 6th December 2002.

Widespread apoplexy  - a malady arresting the powers of sense  - has been the weird result of John Howard's perfectly reasonable expression of any prime minister's duty and right.

The apoplectic, here and abroad, have taken leave of their senses in characterising what he said about pre-emption as "a recipe for anarchy" and "an unfriendly act" to South-east Asian countries, inviting their banning Australian trade and tourists.

People who should have known better  - and perhaps once did  - say that pre-emption "strikes at the very heart of international law".  But it doesn't; for pre-emption has for centuries been part of international law.

True, the word is not to be found in the UN Charter.  But, as the Charter recognises, every country has "the inherent right" of self-defence  - a right which "nothing in the present Charter shall impair", a right which was not given by the Charter but which long pre-dated it.  And that right has equally long been recognised as including pre-emption.

The reason is obvious:  it would be unjust as well as unrealistic to expect a state to sit idly by with its thumb in its mouth, waiting resignedly to be struck by another.  Getting one's retaliation in first is widely regarded as whimsical.  Rather is it realistic  - and lawful.

International law is unlike municipal law in that its rules can be made and changed not alone by specific decree or agreement but by a history of state practice.  Pre-emption is a notable instance of that.

For example, Britain and Australia went twice to war against Germany last century without anybody shouting "anarchy", even though Germany had attacked neither of us, and indeed both times had made great efforts to convince that it had no intention of attacking.  Likewise, when the United States declared war on Germany in 1917, no evidence existed of an imminent attack on the USA.

Imminence  - a clear and present danger  - of attack is indeed a precondition of pre-emption.  But how imminent, and how clear, is not, because it cannot be, laid down in stone; it must each time depend on the circumstances  - for example, what Germany would have done had it been left to win all Europe.

So pre-emption is in principle lawful as against another state which in Howard's words is "going to launch an attack against your country...of a conventional kind".  But what if the impending attack, in his words again, is "of a terrorist kind"?

His answer was that he would if necessary, and if he could, pre-empt that too.  But by also saying that terrorism was not dealt with in the UN Charter, which therefore needed amendment, he left himself vulnerable. That was a bad Howard mistake, for two reasons:  the Charter is not the only  source of international law;  and that law does not allow a state to rid itself of responsibility by the device of claiming that an impending terrorist attack was not being organised by it but by an NGO.  (A parallel example is China's disclaiming responsibility for its intervention in the Korean war on the ground that the Chinese soldiers were all "volunteers".)

That is why states have the right to take pre-emptive action against other states, or anyway on their territory, not only if those states are themselves organising international terrorist attacks but also if they are actively encouraging such attacks, or by inaction are enabling them.  This is why the USA speaks of the possibility of taking action against states "harbouring" terrorist groups.

What if terrorist groups are making use of the territory of a harbouring state not with the government's permission but because the government is too  weak and disorganised to bring its will to bear against them, and yet refuses outside help to disrupt an impending terrorist attack against another?  It stands to reason that in that case too the threatened states cannot be expected to do nothing to save itself from doom.

Finally, those in Australia and abroad who chose to interpret Howard's remarks as amounting to a new doctrine of aggressive unilateralism have ignored both his actual words and reality. 

For his stated preconditions for taking action against impending terrorist attack from outside included "if...there was no alternative".  And the first obvious alternative, which would certainly be taken by any Australian government, would be to ask for action by the state whose territory was being made use of by the terrorists.

Only if that action were not forthcoming, and any offer of Australian help were refused, would Australia act to save itself.  To suppose otherwise is simply evidence of irremediable apoplexy.

Des Moore is Director of the Institute for Private Enterprise and Councilor at the Australian Strategic Policy Institute.