- The Washington Times - Monday, December 1, 2003

On Oct, 25, 1984, then Secretary of State George Shultz laid out what came to be known as the “Shultz Doctrine”:

“We must reach a consensus in this country that our responses should go beyond passive defense to consider means of active prevention, pre-emption and retaliation. Our goal must be to prevent and deter future terrorist acts, and experience has taught us over the years that one of the best deterrents to terrorism is the certainty that swift and sure measures will be taken against those who engage in it. We should take steps toward carrying out such measures.”

Never was such a consensus more needed than it is today 20 years later. In the shadow of September 11, 2001, pre-emption should now be No. 1 on today’s agenda. Legal justification for such military action against the metastasis of terrorism must be considered as an integral part of the right of self-defense outlined by the United Nations charter. Let it not be forgotten that when President Reagan invaded Grenada Oct. 25, 1983, and ousted another Castro-controlled Caribbean regime, he was acting pre-emptively. Should President Reagan have waited for another Cuba to appear?

To Mr. Shultz’s words, let me add those of an earlier American statesman, Thomas Jefferson:

“A strict observance of the laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence of written law, would be to lose the law itself, with life, liberty, property of all those who are enjoying them with us.”

The history of the 20th century is full of examples where pre-emption might have saved millions of lives. Who could have believed that on that Saturday morning of March 7, 1936, when Nazi troops reoccupied the demilitarized Rhineland in violation of the Versailles and Locarno treaties that some 31/2 years later World War II would begin? Had the British and French armies acted pre-emptively against Adolf Hitler’s Rhineland coup, how many million lives might have been saved?

Israel, for example, now faces a problem of life and death. This small country of some 6 million people, could be wiped out in a nanosecond because of the rocket development by Iran, and allied terror groups. According to the Israeli daily, Ha’aretz, Iran has reportedly expanded the range of its short- and medium-range rockets that could be shipped to south Lebanon where Hezbollah, the Iran-supported terrorist cabal, is headquartered.

Hezbollah’s current arsenal reportedly contains rockets with a range of some 50 miles and warheads weighing 440 pounds. If fired from Israel’s northern border, they could hit targets as distant as Haifa and Hadera.

Hamas, another terrorist gang, has tested a new model of the Qassam rocket that can penetrate Israel’s coastline. Let’s assume this information is solid. Is pre-emption an option to be exercised as it was in 1981 when Israeli F-15s and F-16s bombed into rubble Iraq’s Osirak nuclear reactor? Iran itself last July, according to the Associated Press, test-fired the Shahab- 3 ballistic missile, a medium-range 800-mile weapon,capable of flying at 4,320 miles an hour with a 1-ton warhead.

Abraham Sofaer, adviser to the U.S. State Department from 1985 to 1990, has argued that “properly applied, pre-emption is an aspect of a state’s legitimate defense authority.” Writing in the European Journal of International Law, Judge Sofaer said:

“The power to act in self-defense after an attack is based on the need to prevent further attacks, not on any right to exact revenge. … Pre-emption must be considered responsibly, on a case-by-case basis, but it remains one aspect of every government’s duty to protect its people. Weapons of mass destruction can now be fashioned by many states, and delivered in many ways. When such weapons are likely to be used by a state, and all reasonable means short of force have been exhausted, it is reasonable to expect target states to consider pre-emption. When such circumstances exist, pre-emption is necessary, and should therefore properly be regarded as part of the ‘inherent right’ of self-defense.”

The U.N. Charter recognized a world of nation-states. It gave a certain legitimacy to anticolonial and irredentist movements but legitimate actors on the world stage were and remained nation-states, at least as far as the U.N. Security Council was concerned.

There was then no al Qaeda or subordinate freelance groups and their allies capable of projecting terrorist power against the industrial democracies. Yet these terrorist groups are operating on the soil of a nation-state that has granted them immunity from attack. Without a state’s support — safe houses, passports, transfer of funds, communications, intelligence, transportation — Hezbollah, Hamas, al Qaeda couldn’t operate.

Pre-emption in the day of stateless terrorism needs an expanded legal rationale. Without such a rationale, the democracies are doomed to flounder in a swamp of indecision and confusion.

Arnold Beichman, a Hoover Institution research fellow, is a columnist for The Washington Times.


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