Preemptive strikes under Pax Americana

I started the year seeking to understand the concerns that have guided Presidents since Jimmy Carter to craft our foreign policy with respect to Iran. My basic hypothesis was that Presidents did not have much leeway in this regard, being stuck between a profound commitment to Israel on the one hand, and a persistently anti-American Ayatollah on the other. My research began under the climate of repeated threats by Israeli Prime Minister Netanyahu to strike Iran’s nuclear facilities if Iran did not stop its nuclear program.

In October, my mentor pointed me to an article that appeared in the Guardian about the UK declining to provide the US with strategic vantage points from which to strike Iran if the need were to arise–because, the UK representative argued, such a preemptive strike would be premature. 

This then led me, as a first year law school student, to wonder what the international standards for allowing preemptive strikes are. My research has since then focused on 1) the history of international law surrounding preemptive strikes, 2) the actions that past US Presidents have taken in regard to these conventions and their result, and 3) suggesting any implications this might have for dealing with Iran.

International legal scholars cite Article 38 of the International Court of Justice as the authoritative enumeration of the sources of international law. These include three principal sources: 1) treaties and international conventions, 2) custom, and 3) general principles of law.  Treaties between two or more nations create law between them much the same way contracts create law for individuals. Custom is more elusive, and can become the de facto law merely if states engage in a practice over a period of time and perceive this practice to be law. Finally, the most contested source comes from general principles of law, which include: 1) basic legal principles common in most domestic legal systems, such as res judicata and estoppel, 2) various a priori principles that states have come to accept when they engage the international community, such as being bound by a treaty they signed, and 3) higher principles of equity and humanity, similar to natural law.

Article 2, section 4 of the United Nations Charter prohibits the “threat or use of force against the territorial integrity or political independence of any state or in any manner inconsistent with the Purposes of the United Nations.” Article 51 of the United Nations Charter allows self-defense as an exception to Article 2(4), but is ambiguous as to the right to a preemptive strike in self-defense. A literal reading indicates that self-defense is inherently acceptable “if an armed attack occurs against a Member,” which would seem to rule out a preemptive strike. Restrictionist scholars take this approach. However, in what Arend and Beck call the “counter-restrictionist view,” this enumeration of a scenario where self-defense would be acceptable is not exclusive, and leaves room for preemptive actions.

My paper addresses several critical developments in the international community, such as the 1962 Cuban Missile Crisis, the Middle East War of 1967, and the 1981 Israeli strike on Iraq’s Osarik nuclear reactor, to discover whether the restrictionists or counter-restrictionists have won the argument.

The conclusion seems to be that although the UN Charter does not explicitly allow preemptive strikes, the custom has been to allow them as long as they display the necessary elements of self-defense: necessity and proportionality. The next steps in the paper for policy purposes would be to get a sense for how recent Presidents have dealt with international requirements with regard to preemptive strikes, whether they mattered, and what the ramifications for our policy vis-à-vis Iran are.

I’m looking forward to our meeting next week and learning some more from you all!

About The Panhumanist

I have a B.A. in Religious Studies, a Master's in Public Policy, and a Juris Doctor.
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