Indeed, on a conceptual level, Harvard University law professor Alan Dershowitz, who spoke to 200 people at the Westin Philadelphia on Feb. 7, wondered out loud when pre-emption is appropriate in military conflict and when it should not be used.
"I am neither for pre-emption or against it as an abstract principle," said Dershowitz, author of the recent Preemption: A Knife That Cuts Both Ways. "I am trying to analyze it, describe it, and build a jurisprudence that suggests when it's appropriate to employ prevention and pre-emption, and when it's not."
At the event, which was co-sponsored by the Foreign Policy Research Institute and the World Affairs Council of Philadelphia, Dershowitz noted that pre-emptive strikes present the difficulties of not knowing exactly how history would have played out without them. To illustrate the point, he discussed the case of British Prime Minister Winston Churchill, who back in 1935 proposed going to war against the Nazi regime in Germany.
If that had actually happened, he queried, then "what history would remember is an attack by an aggressive, bullying England and France that had just won the first World War."
According to rules of the United Nations, he said, countries may make an armed response only if armed force has already been used against them. Still, he acknowledged, "there isn't a nation on the face of the earth that would abide by that principle."
To Kill or Not to Kill?
As far as the Mideast is concerned, Israel took matters into its own hands, the professor noted, in the 1967 campaign against Syria and Egypt – an attack that he said was justified.
"The virtue of pre-emption is that you don't have to kill civilians; you kill only military operatives," said Dershowitz.
Another reason not to wait until a nation commits a crime – and then punish the offender in order to deter others – is that some countries simply cannot be deterred, asserted Dershowitz.
Take, for example, the use of human bombs in the Palestinian campaign against Israel in the second intifada, a tactic that immediately was put to use in Iraq.
Typical military strategies, he said, simply don't work with suicide bombers: "You cannot persuade a suicide bomber not to kill by threatening to kill them."
But Dershowitz did identify one way of dissuading internal enemies who don't care if they live or die: Threaten to kill their families, a tactic used by Nazi Germany, the Soviet Union, and numerous other Asian and African countries.
Nonetheless, "the U.S. can't do that. Israel can't do that. England can't do that," he relayed. "Democracies [can] only threaten to punish actual perpetrators – and suicide bombers are not going to be deterred."
Dershowitz said pre-emption is a growing trend, and pointed out that the previous day's issue of The New York Times ran six separate articles in which preventative measures are mentioned in relation to crime-fighting and military-positioning.
The author also argued that one country that could fall into a pre-emptive rubric would be Iran, which he contended must be prevented from building nuclear weapons: "Iran today is the only country in the world that will probably get a bomb – and use it." Then again, he conceded, uncovering and destroying Iranian nuclear sites "would require one of the most complicated military acts in history."
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