HOW WOULD THE BUSH ADMINISTRATION'S CLAIMS OF SELF-DEFENSE, USED AS JUSTIFICATIONS FOR WAR AGAINST IRAQ, FARE UNDER DOMESTIC RULES OF SELF-DEFENSE?

By GEORGE P. FLETCHER
Tuesday, Sep. 10, 2002

Self-defense is the most banal of arguments. It comes readily to the lips of the paranoid as well to the aid of those who reasonably defend themselves against imminent attack. Violence is rarely conceded to be aggression pure and simple, but rather action in defense of life, liberty, or some other important value.

Timothy McVeigh--convicted of murdering 268 people in Oklahoma City--thought of himself as defending the Constitution against the encroachments of an expansive federal government. Even the Unabomber Ted Kaczynski could - however self-deceptively - claim that he was defending traditional values against the dangers of technology.

The recourse to the rhetoric of self-defense comes to the fore in international as well as domestic legal debates. When Israel attacked an Iraqi nuclear reactor in 1981, it allegedly acted in self-defense. If the reactor had been converted to military use, they argued, it could have generated a deadly menace to Israeli cities. Similarly, Palestinian suicide bombers argue that their homicidal violence is necessary to protect their land against the aggressive Israeli "settlers."

Meanwhile, the defenders of Al Qaeda aggression argue that attacking American targets is necessary to defend Dar el Islam- the sacred homeland- against the encroaching presence of American military forces.

With almost any aggressor able to at least claim self-defense - especially now, when many claim pre-emptive action can be self-defense, too - how can we tell which of these claims have merit, and which are meritless?

For instance, how does our domestic criminal law define self-defense, and can that definition be applied in the international as well as the domestic sphere?

The "Imminent Unlawful Attack" Requirement: Should It Apply in International Law?

The general rule, as far as domestic law is concerned, is that self-defense is permissible only against an imminent unlawful attack. A defendant won't win if he kills a loanshark who threatened to kill him in two weeks unless he paid up - but he may win if he kills a loanshark who showed up at his house, pointed a gun at him, and told him to say his prayers.

Consider how the distinction might apply in a few real-life examples. In my view, the Egyptian threat against Israel in 1967 - massing troops on the border, threatening total destruction - constituted an imminent attack. In contrast, the nuclear reactor in Iraq that the Israelis attacked represented a potential threat, well below the threshold of an imminent attack.

"Battered Women's Syndrome": Criminal Convictions Without Imminent Threat

Advocates of women's rights have urged relaxation of the imminence standard in cases of battered victims. A battered woman should be able to claim self-defense, they argue, even if her husband or boyfriend was not abusing her the moment she struck back - or even was asleep at the time.

In support of their argument, advocates for the defense have pointed to an alternative legal standard that, if applied, would let battered women, in some cases, go free. The Model Penal Code standard permits defensive force when it is "immediately necessary. . .on the present occasion." (The Model Penal Code is a proposed criminal statute adopted by many states, with some modifications.).

For a battered woman, the danger posed by the violence-prone, sleeping husband is not imminent but the response might be "immediately necessary." Suppose, for instance, that the husband, drunk, began to beat her to within an inch of her life, but later fell asleep. She fears he will kill her when he awakens, but also fears leaving the house because she thinks he may then victimize her children instead. If she doesn't kill him, she is sure he'll attack eventually, and fears she'll have no way to defend against him.

On these facts, a self-defense claim seems at least arguably plausible, despite the lack of imminent threat.

The Bush Administration's Claim A War Against Iraq Will Be Self-Defense

Now let us consider the position of the Bush administration that it should use force to counteract the threat that Saddam Hussein will acquire and use weapons of mass destruction - in particular, long-range nuclear missiles.

First, what is the applicable international law on the matter? Article 51 of the United Nations Charter requires, in pertinent part, not merely an imminent unlawful attack but an actual attack: "the inherent right of individual or collective self-defense" applies only "if an armed attack occurs."

Obviously, the Bush Administration's plan would not fit the Charter's standard. Even if Iraq could be decisively shown to be behind the September 11 attacks by Al Qaeda, as some have suggested, that attack is no longer underway and if the Administration responded to it in self-defense, it was in Afghanistan.

Moreover, the Administration has not even argued that an attack is somehow ongoing. Rather, members of the Administration have said that they fear that at some time in the future Saddam or a successor might use weapons of mass destruction.

For similar reasons, the Bush Administration's reasons, by its own terms, also fail under the "imminent attack" standard described above. The Administration is admittedly thinking of the long-range, not of the near future.

But what about the Model Penal Code standard, which allows violence in self-defense if it is "immediately necessary . . . on the present occasion"?

The Model Penal Code Standard and the Bush Administration's Argument for War

If we applied the Model Penal Code standard, the case for the American use of force begins to look more persuasive. Arguably, the potential danger posed by Iraqi possession of nuclear weapons is so great that an attack might be regarded as "immediately necessary" on this "present occasion" broadly understood.

Indeed, if the United States presents itself as a victim "traumatized" on 9/11, then it might, in theory, be able to respond with as much latitude as advocates are willing to accord to battered women - though this aspect of domestic self-defense law is highly unlikely ever to be accepted in the international context.

There are some problems with applying the Model Penal Code Standard internationally, and it has yet to be recognized in international law. But defenders of the Bush policy might retort that the problem is with international law, not with their position: The law has not yet caught up to the modern world, where terrorism and weapons of mass destruction make prevention and even pre-emption the only game in town.

In support of this contention, defenders of the Administration could point out that the U.N. Charter cannot possibly be serious in restricting self-defense to actual "armed attacks." An "actual attack" standard is insane - forcing a nation to wait until a foreign soldier puts a toe over the border to strike back.

And for a nuclear attack, timing may not matter - the mere fact that it is probable that it will happen sometime in our lifetimes may be considered to be enough.

The U.S. Fails To Make International Law Arguments, Even When One Can Be Made

The problem with American policy toward Iraq is not that no legal arguments are available to support it. It is rather that the government does not even try to make a legal argument. If it did try, it could make a strong case that the Charter's standards simply do not work in an age of terrorism and weapons of mass destruction.

Yet in touting a future war against Iraq, the U.S. acts with the same kind of indifference toward international law as it shows toward the International Criminal Court - a political body it suspects of thriving on anti-American persecution. The other nations that have refused to join the Court include some notorious "outlaw states," and the U.S. should think about whether it is also willing to adopt the status of outlaw to avoid international jurisdiction.

The real danger of unilateral action against Saddam Hussein is not that the mission will fail (though it might, and might fail catastrophically). Rather, it is that such action it will signal the end of the law's influence in setting the limits of U.S. military policy. The White House's unwillingness to resort to legal arguments is only lending credence to Nelson Mandela's recent charge that the President is putting himself above the law.

The way the White House talks about its projected use of force is as critical to the rule of law as what it actually does. And it would be well advised to honor the law at least to the extent of invoking the "banal" argument of self-defense. The Bush Administration should pay more attention to the diverse criteria for legitimating the use of force, and couch its argument in the rhetoric of self-defense "immediately necessary" under the circumstances.


George P. Fletcher is Cardozo Professor of Jurisprudence at Columbia University and the author of the forthcoming Romantics at War: Glory and Guilt in the Age of Terrorism

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