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.