Skip to main content

Sign up for our newsletter.

Quality journalism. Progressive values. Direct to your inbox.

South Korean protesters carry a banner showing a caricature of US President Donald Trump during an anti-US rally demanding peace in the Korean Peninsula in Seoul on August 15. (Photo: AFP)

The Spectre of 'Pre-Emptive' War

The US could be heading for another 'pre-emptive' war and another overwhelming disaster.

Larry Beinhart

 by Al-Jazeera English

US President Donald Trump proclaims apocalypse. "They will be met with fire, fury and frankly power the likes of which this world has never seen before." At his New Jersey golf club, he proclaimed again, "If anything, maybe that statement wasn't tough enough."

In doing so, he raises the spectre of war.

His casus belli is way over on the vague side. "They've been doing this to our country for a long time, for many years, it's about time somebody stuck up for the people of this country ..." What is "this"? And what is it doing to the United States? Has the US suffered from North Korean incursions? Have we missed them?

Trump's warmongering rhetoric raises the question: would a war be legal?

There are many people who may think that debate is academic. Trump - and America - can, and will, do what they want, and no lawyer will stop them. However, the rules are worth knowing for their own sake and an examination of their history reveals a great deal about the nature of war.

As a general rule, aggressive war is illegal. In almost the same way, that a physical assault by an individual on another person is illegal. Technically, it was outlawed in 1928 by the Kellogg-Briand Pact. Most of the participants in the second world war were signatories, so it became the legal foundation for the prosecutions at Nuremberg where the underlying principle was reiterated:

"War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

The Kellogg-Briand pact remains in effect. The UN Charter also outlaws aggressive war. It's effectively a treaty and the US is a signatory.  

The fundamental exception - as in criminal law - is self-defence. Any nation that's physically attacked has the absolute right to fight back.

Additionally analogous, the UN envisions the idea of a police force with the right to employ violence with proper authorisation. The Korean War and the Gulf War were both UN-sanctioned wars.

The idea of self-defence is sometimes stretched to validate "preventive" and "pre-emptive" war, words and concepts that are very easily confused and conflated.

The first "case" of preventive war was in 1837. A minor rebellion was taking place in Canada. The rebel base was on an island in the Niagara River. They had a steamboat, called the Caroline, which they used to ferry their forces (terrorists?) and their arms (weapons of individual destruction). To protect it, they kept it moored in a foreign country, the United States. Despite that, the British crossed over one night and set it on fire, killing one American in the process.

It was, without doubt, an invasion. It seemed as if it would be the casus belli of another war between England and the US.

The interesting thing is that it was not the aggressors, it was the "victim" that came up with the legalistic notion of "preventive" war. It was precisely and narrowly defined. "The necessity of that self-defense is instant, overwhelming, and leaving no choice of means and moment for deliberation." It could not be an excuse for all-out war. It had to be limited to fixing a limited problem: "Nothing unreasonable or excessive; since the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it."  

"Pre-emptive" war is very different. Countries go to war based on the conviction that the other guy is going to attack them and the only thing to do is be first to the battlefield.

The best pre-emptive wars are imaginary: if England had struck Germany in 1936; if the Soviet Union had struck Germany in 1941; if the US had struck Japan before Pearl Harbor.

Here are some examples of real pre-emptive wars: Germany's attack on the Soviet Union in 1941; Japan's attack on the US in 1942; the Confederate States against the Union in 1861; and China's entry into the Korean War in 1950.

However militaristic the US has been, ideologically it had always rejected the idea of pre-emptive war. Until it was re-packaged as "Bush Doctrine".

"… as a matter of common sense and self-defense, America will act against emerging threats before they are fully formed.

"… rogue states and terrorists … rely on acts of terror and, potentially, the use of weapons of mass destruction … the greater the threat, the greater is the risk of inaction - and the more compelling the case for taking anticipatory action to defend ourselves."

That gave the world the second war in Iraq, which was a disaster.

A very strong argument can be made that the disaster was due to the moral dimension of war. When a country, or a people, is attacked it creates a level of moral outrage that is almost bottomless. When a country is the aggressor, especially when it was a war of choice - possibly with perceived necessity, but not real necessity - it does not win. They may not lose, as Germany and Japan did in World War II, but they fail to "win," like Russia in Finland, China in Korea, and the US in Iraq.

Laws, at their base, are an attempt to bring reality under control by codifying it. War is damaging, destructive, "the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole." Laws about war might seem academic, but they're not. They're an excellent guide to avoiding destruction and failure.


© 2021 Al-Jazeera English

This is the world we live in. This is the world we cover.

Because of people like you, another world is possible. There are many battles to be won, but we will battle them together—all of us. Common Dreams is not your normal news site. We don't survive on clicks. We don't want advertising dollars. We want the world to be a better place. But we can't do it alone. It doesn't work that way. We need you. If you can help today—because every gift of every size matters—please do. Without Your Support We Simply Don't Exist.

'End the Filibuster': GOP Ready to Tank Even Manchin's Compromise Voting Rights Bill

"Sen. Manchin searched for 10 Republicans to support voting rights legislation, but Republican senators willing to break with Sen. McConnell and stand on the right side of history simply don't exist."

Jessica Corbett ·


Chicago Groups Unite With Message to US Senate: 'Reject Rahm'

"Emanuel was more concerned with his own reelection than he was with justice for a child murdered on his watch. This is a complete slap in the face to Black America."

Brett Wilkins ·


Africa's Disappearing Glaciers Signal 'Irreversible' Threat to Earth System: Report

The authors of a U.N. report urge greater investment in climate adaptation and weather services on the continent.

Julia Conley ·


As Corporate Dems Belly-Ache Over Social Investments, Senate Panel Approves Extra $29 Billion for Pentagon

The Senate committee vote included $10 billion more than requested. "That's $100 billion over 10 years—or half the cost of universal pre-K, which we're told we can't afford," said one critic.

Kenny Stancil ·


'What Republicans Want to Do Everywhere': Outcry Over New Voting Maps in Texas

"The new redistricting plans are an unlawful attempt to thwart the changing Texas electorate and should be struck down."

Andrea Germanos ·

Support our work.

We are independent, non-profit, advertising-free and 100% reader supported.

Subscribe to our newsletter.

Quality journalism. Progressive values.
Direct to your inbox.

Subscribe to our Newsletter.


Common Dreams, Inc. Founded 1997. Registered 501(c3) Non-Profit | Privacy Policy
Common Dreams Logo