Spread of 'preemptive-ism' and Indonesia sovereignty

Spread of 'preemptive-ism' and Indonesia sovereignty

Mohamad Mova Al Afghani, Jakarta

Australian Prime Minister John Howard recently said he would
not hesitate to order preemptive strikes against terrorist bases
overseas. The statement was further clarified that such an attack
would not be directed against "able" countries such as Indonesia.

However, this statement would seem to require a serious
response, as this was not Howard's first concerning the issue.

The spread of "preemptive-ism" across the region is something
of concern, since a preemptive strike will likely raise distrust
among nations, provoke international anxieties and undermine the
UN's role in maintaining peace and security.

As a general rule, the threat or use of force is prohibited by
international law, as stated in Article 2.4 of the UN Charter.
The only possible exception to this rule is when an armed attack
occurs against a state. In such a case, the state in question may
launch the force necessary to alleviate or prevent the danger.

But this is permitted only temporarily, as the attacked state
must cease immediately to use force once the UN Security Council
has taken measures to restore the situation. The state must then
report its use of force to the Security Council, according to
Article 51 of the Charter.

The UN Charter excludes other measures of self-defense, in
reaction to the scourge of World War II. The general prohibition
on the use of force in Article 2.4 and the "temporary" nature of
the use of force under Article 51 indicate the UN's stance that
it prefers states to delegate armed conflicts under jurisdiction
of the UN Security Council. This institutionalization is an
advanced step toward a civilized world.

Preemptive strikes are considered an illegal use of force
under international law, as they fall outside the scope of
Article 51 of the UN Charter. The law requires that: one, an
actual armed attack occurs; two, the defensive measure is
temporary; and three, the use of force must be reported to the UN
Security Council.

Preemptive-ism suggests that it is acceptable for states to
launch an attack against other sovereign states prior to an
actual armed attack. In other words, the preemptive doctrine
presupposes that an actual attack would occur some time in the
future and that such an attack would jeopardize the target
state's national security.

However, there is no commonly accepted standard of what would
amount to an attack. For example, when a group of santri -- or
Islamic boarding school students -- in Pacitan bought one ton of
urea fertilizer, can this be categorized as a planned attack
against Australian interests? Or when a group of people of Arab
descent in Bogor learns how to fly a plane, can this be evidence
of a potential terrorist threat?

Preemptive measures have been used several times, mostly by
superpower governments. The most recent of this was the 2003
invasion and the later occupation of Iraq.

The plan for attack had, in fact, been contemplated since
September 2000 in the analysis of the Project for the New
American Century (PNAC), which urged the United States to take a
stronger military stance against the regime of Saddam Hussein.

Upon the election of George W. Bush as president, many hawkish
advocates of this policy were included in the new
administration's foreign policy circle. According to former
Treasury Secretary Paul O'Neill, the attack had been planned
since Bush's inauguration, and the first security council meeting
discussed the invasion plans.

One year later, on the day of the Sept. 11, 2001 terrorist
attack, Defense Secretary Donald Rumsfeld is reported to have
written in his notes: "Best info fast. Judge whether good enough
hit S.H. (Saddam Hussein) at same time. Not only UBL (Osama bin
Laden)."

Shortly thereafter, the George W. Bush administration
announced the war on terrorism, accompanied by a doctrine on
preemptive military action dubbed the "Bush Doctrine".

In 2002, the Iraq disarmament crisis arose primarily as a
diplomatic situation. In October that year, the U.S. Congress
granted President Bush the authority to wage war against Iraq.
Meanwhile, the UN Security Council issued Resolution 1441 to
resume weapons inspections. At the same time, the U.S. also began
a series of diplomatic, public relations and military
preparations for an invasion of Iraq.

The actual invasion began on March 19, 2003, when forces
belonging primarily to the U.S. and the United Kingdom invaded
Iraq.

The international community has condemned the U.S.-led
unilateral action against Iraq. Furthermore, no proof that Iraq
was supplying weapons of mass destruction (WMD) to terrorists has
been publicly disclosed. Peaceful means of resolving the WMD
dispute and the disarmament of Iraq had not been exhausted, and
UN weapons inspectors had not found any incriminating evidence
against that country.

In short, the situation at that time did not point in any way
to a necessary and urgent military invasion against Iraq.

While no strict prohibition is stipulated by international law
against preemptive strikes, developments in international
diplomacy is moving toward denouncing such measures.

In wars prior to 2003, we can see the preemptive doctrine was
used in a minor and temporary manner. Even in the 1963 blockade
of Cuba, the doctrine was exercised simply as a naval quarantine
against incoming ships alleged to be transporting nuclear
warheads. Not a single gun was fired then.

In contrast, the doctrine was implemented in 2003 on a massive
scale, involving the armed forces of six different nations.

In responding to recent trends in the spread of the preemptive
doctrine across the region -- as indicated by Howard's statement
-- it would be sensible for the Indonesian government to clarify
their position concerning the issue firmly.

From the political perspective, embracing or condoning such a
doctrine would be in no way advantageous, since the doctrine will
only benefit states with well-developed and modern armed forces
that have immediate strike capabilities -- a condition Indonesia
lacks.

From the legal perspective, it would be much safer to refer to
the textual interpretation of Articles 2.4 and 51 of the UN
Charter, which stipulate that self-defense may only be carried
out temporarily until the Security Council takes necessary
action.

In addition, the large number of states that oppose the
invasion of Iraq shows the growing international trend of
denouncing such measures. It is thus very possible that, under
the existing State Responsibility Rules, states implementing such
a doctrine could be brought before the International Court of
Justice and held responsible for violating international law.

The State Responsibility Rules stipulates that a state in
breach of international law may be liable to several penalties in
the form of restitution, compensation and/or satisfaction toward
injured states.

The writer is a lawyer at Lubis Ganie Surowidjojo.