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The use of force is a controversial, fascinating and critical topic within international law. One of its central precepts, established by Charter of the United Nations, is that disputes between states should be solved by peaceful means. This is exemplified in a general prohibition against the use of force. This principle is constantly being defied by the aggressive behaviour of states, as well as non-state actors, who choose violence to achieve their goals. The invasion of Iraq in 2003 is a significant chapter of this ongoing challenge. A full-scale invasion of a nation is not an event that should be viewed lightly in this context. It demands full analysis. The place of the United States of America (the US) in the invasion is a leading one, and deserves particular attention because it is the most powerful and influential country in the world. Its behaviour will have an important effect on how other nations see the law.
Iraq's behaviour has been a key ingredient in this conflict. Iraq has been a bane of the international community for many years, and its aggression and human rights abuses are notorious. The US has had its own tribulations, experiencing firsthand the trauma and disbelief that result from acts of ruthless, highly organised terrorists. Both these factors contribute to aspects of the rationale driving the US course of action. An analysis of the main justifications given by the US provide a unique understanding of exactly why the US believed Iraq was such a threat, and why such strong action should be taken against it. These justifications included such aspects as Iraq's breaches of its United Nations obligations, and its attempts to gain forbidden weaponry. They loosely fit under several categories. To gain some legitimacy, the US had to base reasons for the invasion on the exceptions to the prohibition on the use of force. Initially, the most heavily relied on arguments related to one of the two exceptions, that of self-defence. Closer to the invasion, equal emphasis began to be given to the other exception, authority from the United Nations Security Council (the UNSC). What leaps out, however, is the US approach taken to self-defence.
Self-defence is an understandably complex area of law, because it is the only remaining recourse that states have to the use of force, outside of the collective security system of the Charter. It is a crucial matter to focus on for this very reason. Study of this subject reveals that it is of a nebulous nature, and its boundaries are not readily agreed upon. What is apparent about self-defence is that the right is triggered not by mere will alone. This is to distinguish between reliance in times of real need, as opposed to violence propagated for other purposes. It is currently highly debatable exactly what kind of circumstances or action will ensue a right to react in self-defence, whether that be an armed attack or an attack that is about to be made. But there must be basic thresholds met before counteraction can be taken, reflecting the very essence of the concept of self-defence.
The US has formulated a doctrine of pre-emptive self-defence to help solve its defence issues. This doctrine effectively revises and widens the grounds against which a state may legitimately respond in self-defence. Pre-emptive force reformulates the definition of a threat- from one where an attack has occurred or is imminent, to one where an attack might occur. It is founded upon fears that dwell on worst-case scenarios. The US has made a sustained effort to sell this doctrine on the basis of the instantaneous nature of modern weaponry, and Iraqi belligerence. The US pre-emptive doctrine is unsatisfactory, for it undermines the ban on recourse to force and widens its availability exponentially. Its legality is certainly questionable under current international law.
The problem posed by Iraq encapsulates a number of defence issues faced by states, which inevitably must be addressed. The invasion presents an opportunity for the international community to face these issues and work to resolve them. But exactly how the invasion, or the pre-emptive doctrine behind it, will contribute to international law will likely depend on how the US chooses to act from here.
Article 2(4) of the Charter of the United Nations (UNC) states that:
All member states should refrain in their international relations from 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.[1]
This prohibition, which makes no distinction between war and force and embraces both threats and acts of violence, is widely accepted by the international community and in international law.[2] Some debate and discussion surrounds the prohibition's exact scope.[3] Examples of some issues include whether the type of force prohibited is military only, or if it can include political or economic pressure (as argued by developing, non-Western states),[4] or whether the force must be intentionally aimed only at undermining the territorial integrity or political independence of a state to be censurable.
Overall, it is maintained that the purpose of the Charter, to maintain peace and security and an accompanying emphasis on pacific methods to achieve this aim, supports a wider interpretation so that force for any purpose (unless falling under the limited exceptions to the prohibition) is thereby disallowed.[5] The assertion is further made that states have generally agreed and view the prohibition in this less restrictive way, as even those who have breached the prohibition argue that their acts are lawful, as opposed to arguing that the prohibition has a more permissive and relaxed interpretation.[6] Broadly, it appears that states do behave on the basis that the prohibition is of wide effect.
Overwhelmingly the consensus is that the prohibition of the use of force has become a principle of customary international law, jus cogens, a basic norm binding all states.[7] The International Court of Justice (ICJ) in the Nicaragua case approved this position.[8]
The invasion of Iraq in March 2003 was undertaken by a 'coalition of the willing' driven largely by the United States of America and the United Kingdom.[9] The context of events is very relevant to an analysis of the invasion, including certain background facts about Iraq. The leading role played by the United States is of particular interest in the field of international law. As a powerful actor on the world stage its treatment of international law and its institutions may have deeper implications than would the actions of other states.[10] This particular focus on the US position begins with discussing the response to the devastating terrorist attacks on September 11, 2001, as these events play a part in the US case for invasion. Assessment of the US arguments and justifications are based on a study of the statements by President George W Bush and senior members of his administration to UN organs, the President's 'address to the nation' speeches and some general remarks made to the media. The US justifications fall into a number of broad categories, but the most important and well-emphasised arguments are those that relate back to the exceptions found in the UNC. The Charter stipulates two exceptions to the broad prohibition on the use of force. Article 42 allows for military action endorsed by the Security Council in order to restore peace and security, and Article 51 provides that states may individually or collectively exercise the right of self-defence against an armed attack.[11] This latter category stands out because of the unique and quite radical way the US framed the terms of the Iraqi threat that it believed triggered the right of self-defence.
Saddam Hussein, the infamous leader of the Ba'ath party, came to presidential power in Iraq in July 1979. Under Hussein's leadership several major military manoeuvres were undertaken, including a devastating war with Iran from 1980 to 1988, and the invasion of Kuwait on August 2, 1990. The Kuwaiti invasion attracted the almost unanimous condemnation of the world through the United Nations. The Security Council acted swiftly in adopting Resolution 660 condemning the invasion and demanding Iraq's withdrawal.[12] An American-led coalition acting under UNSC resolutions, of which resolution 678 authorised force, began the Gulf War on January 17, 1991, and had expelled Iraq from Kuwait by February 1991. Iraq accepted the terms of a ceasefire on March 3. Resolution 687 was the primary ceasefire resolution adopted in April which called for Iraq to allow the removal or destruction of chemical and biological weapons, and ballistic missiles, and provided for the formation of a special committee to inspect Iraq's biological, chemical and missile capabilities (UNSCOM).[13] Since the end of the Gulf War Iraq resisted meeting its obligations under the terms of the ceasefire, especially in relation to UN initiatives directed at disarmament, and was consistently uncooperative with weapons inspectors. The UNSC issued numerous resolutions repeatedly deploring Iraq's stance,[14] which in turn were to all intents and purposes repeatedly ignored. Military action was taken against Iraq late in 1998 by the United States and the United Kingdom because of Iraq's obstructions to disarmament and flagrant failure to comply with UNSC resolutions.[15] Weapons inspections by UNSCOM were effectively abandoned from 1998. In 1999 UNSCOM was replaced with the United Nations Monitoring Verification and Inspection Commission (UNMOVIC).[16] Iraq allowed the unconditional return of inspectors in September 2002.[17]
It is also relevant to consider certain events which had maj or repercussions for US national security issues up to the time of the invasion. The horrific events of September 11, 2001 (S11) continue to have a far-reaching effect, not only on the United States, but also on the international community at large. The initial US response to S11, named Operation Enduring Freedom, began less than one month after the attacks and was based on a claim of its inherent right of individual and collective self-defence.[18] The US and coalition forces launched substantial military initiatives against Afghanistan, where the identified terrorist aggressors al Qaeda were based and where the Taliban governmental regime had aided its network. The short-term objectives were to destroy terrorist camps and infrastructure within Afghanistan, capture al Qaeda leaders and end terrorist activities within the country. By mid-March 2002 the al Qaeda network had been disrupted and the Taliban removed from power.[19] Enduring Freedom was the first part of the American initiative after S1 1 known as the 'war on terror'.[20] Iraq soon appeared on the United States' war on terror landscape, in an atmosphere of heightened sensitivity towards security issues. From the time of inauguration in January 2001 the President initially showed relatively little interest in Iraq, although the presence of senior figures in the new administration that had been 'architects' of the 1991 Gulf War, signalled that this might change.[21] Anew level of political focus did become apparent when Iraq was first associated with the war on terror rhetoric, in the State of the Union speech by President Bush on January 29, 2002.[22] Bush identified that one goal of the US was to prevent 'regimes that sponsor terror' from threatening the US with weapons of mass destruction (WMD). Iraq constituted, together with other states, an 'axis of evil'. The US President asserted that '[t]he United States of America will not permit the world's most dangerous regimes to threaten us with the world's most destructive weapons.'[23] Bush here made a connection between the war on terror, a significant aspect of which included forceful action against Afghanistan, and states that sponsor terrorism, one of which is Iraq.[24] It became clearer as 2002 went on that the intention to go to war was becoming more concrete, and Iraq's place in the war on terror had been secured.
In the developments towards the invasion in March 2003 and soon afterwards, the United States government put forward certain key arguments to establish its case against Iraq in the international sphere. From about mid-2002 right up until the invasion, the US asserted that Iraq's intractable behaviour meant it posed a serious threat to US security. It pointed to Iraq's flagrant and continuous breaches of UNSC resolutions and its refusal to cooperate with the international body. These breaches had ensured that the true nature of Iraq's weaponry had been hidden, making a successful pursuit of weapons of mass destruction very possible. Its aggression had been explicit. The US believed that the nature of such a threat, after the terrorist attacks of S11, meant that complacency was no longer possible. It pressed that the UN was failing in its role to uphold international peace and security by not ensuring that force be used against Iraq. This failure was couched in terms of a kind of moral duty or obligation on leaders to act. Humanitarian issues were also mentioned.
The first detailed presentation of the US arguments was on September 12, 2002, when President Bush addressed the United Nations General Assembly.[25] The President constructed the nature of the Iraqi threat in his speech around the relationship between weapons of mass destruction (WMD), terrorism and S1 1, and Iraq's 'rogue' character. Bush summed up this connection:
In the attacks on America one year ago, we saw the destructive intentions of our enemies... [Our] greatest fear is that terrorists will find a shortcut to their mad ambitions when an outlaw regime supplies them with technologies to kill on a massive scale.... In one place- in one regime- we find all these dangers, in their most legal and aggressive forms, exactly the kind of aggressive threat the United Nations was born to confront.[26]
The President singles out Iraq as this very regime. It continued to shelter and support terrorist organisations. The deceptions it had practiced meant that Iraq likely had a massive stockpile of biological weapons, had produced thousands of tons of chemical agents, and was working towards the capacity to build a nuclear weapon. Bush said that there was only one conclusion to make regarding Hussein: that he had not stopped pursuing WMD, and to believe otherwise was a 'risk we must not take'. Bush concluded by mentioning that if Iraq supplied weapons to terrorists, then 'the attacks of September the 1 1th would be a prelude to far greater horrors'. [27] In October 2002 President Bush made a speech to a military academy in Cincinnati.[28] These remarks followed similar lines to the General Assembly address. Bush pointed out that America felt its vulnerability since S11. Now, the nation had 'resolved... to confront every threat, from any source, that could bring sudden terror and suffering to America' .[29] The threat from Iraq was unique because the most serious dangers were in one place - a tyrant who had already used chemical weapons, had struck other nations without warning and was particularly hostile to the US.[30] A connection between al Qaeda and Iraq was strongly alluded to.[31] The risk was simply too great that Saddam Hussein, who 'is harbouring terrorists and the instruments of terror, the instruments of mass death and destruction', would use these weapons or provide them to others. The evidence indicated that Iraq was 'reconstituting its nuclear weapons programme'. Knowing the realities of what could happen, now that S11 had occurred, America must 'not ignore the threat gathering against us', this 'clear evidence of peril'. The old approaches towards such threats had failed.[32]
The US maintained these grounds in parallel with diplomatic efforts to obtain official endorsement through the UNSC. By September 2002 these efforts had secured resolution 1441, which decided that Iraq was in material breach of its obligations under the various previous resolutions, and gave Iraq its 'final opportunity to comply' or else face 'serious consequences'.[33] This was a significant diplomatic achievement. However, after the resolution was agreed, President Bush maintained that action of unilateral force, based on self-defence, was still available to the US. He stated that '[t]he United States has agreed to discuss any material breach with the Security Council, but without jeopardising our freedom of action to defend our country'.[34] He also reiterated the basis of the threat to US defence; 'a uniquely dangerous regime ... [that] can supply terrorists with weapons of mass destruction ...' Supporting this defence-based view, the representative of the United States to the UN also commented after the resolution that 'while primary responsibility rested with the Council for the disarmament of Iraq, nothing in the resolution constrained any Member State from acting to defend itself against the threat posed by that country ...'[35] On February 5, 2003, US Secretary of State Colin Powell called a meeting of the Security Council to provide the Council with additional information held by the US, about Iraq's WMD and involvement with terrorism.[36] The presentation by Powell demonstrated efforts to produce WMD while concealing this from the UN, and went into considerable detail. Powell was confident that ' [t]here can be no doubt that Saddam Hussein has biological weapons and the capability to rapidly produce more, many more. And he has the ability to dispense these ... in ways that can cause massive death and destruction'.[37] He also stated that the US made a 'conservative estimate ... that Iraq has a stockpile of between 100 and 500 tons of chemical weapons agent'.[38] Saddam was also determined to 'get his hands on a nuclear bomb' .[39] Iraq had programmes intended to produce ballistic missiles capable of flying over 1,000 kilometres.[40] Of equal concern was where these weapons might ultimately end up. There was a connection between Iraq and al Qaeda such that 'al Qaeda affiliates operate freely in Baghdad'.[41] Given all this evidence and record of past behaviour, Powell concluded by saying that the US could not run the risk that Saddam Hussein would someday use WMD.[42] Leaving him in charge of such weapons was not an option in a post-S11 world.[43]
Further meetings of the Security Council were held on February 14 and March 7, 2003, where briefings on the progress of inspections were given.[44] These reports did not satisfy Powell's obvious sense of unease at the situation. He heard nothing to suggest that Iraq was going to cooperate fully.[45] Powell urged Council members to not let the Iraqi regime 'get away with it again'; the serious consequences of the kind intended by resolution 1441 must be faced, because of the terrible weapons involved, weapons that could kill tens of thousands in the wrong hands.[46]
Blatant and numerous broken obligations to the UN were another reason the US believed firmer action should be taken.[47] President Bush saw Iraq as a threat to the authority of the UN, indeed, in his view, ' [b]y breaking every pledge [to the United Nations] ... Saddam Hussein has made the case against himself’ .[48] In his speech to the General Assembly, the President outlines Iraq's turbulent history. It had not ended terrorist activity in its territory, or destroyed and stopped developing all WMD, but deceived and evaded UN inspectors, and ignored innumerable Security Council demands for compliance and cooperation. The President sternly insisted that if the Iraqi regime defies the Security Council again, the world must 'move deliberately, decisively to hold Iraq to account.' Bush indicated what form of action he believed would work against Saddam by saying, 'for the sake of peace, we will lead a coalition to disarm him' .[49] At the Security Council meeting on February 5, 2003, Colin Powell also called the meeting of the Security Council for the purposes of supporting the assessments made by key figures in the disarmament process since the adoption of Resolution 1441.[50] These assessments were that Iraq had not accepted the disarmament measures required of it, and that essentially it had provided no new relevant information. Powell reminded the Council that a central purpose of resolution 1441 had been to disarm Iraq of its WMD; Iraq had already been found guilty of material breach of its obligations stretching back over 16 previous resolutions and 12 years. Iraq was an offender who had been 'repeatedly convicted'.[51] It was a given of his report that followed, which identified covert and deceptive activities that the Iraqi regime had been undertaking, that it was in breach of its obligations to the UN. There had been an 'active and systematic effort' by the regime to hinder inspectors, and prevent disarmament.[52] Indeed, as a result of these findings, Powell believed Iraq to be in further material breach of its obligations, placing 'itself in danger of the serious consequences called for in resolution 1441'.[53]
Another less obvious but still apparent justification given for the US action was that it had a moral duty to act against Iraq, as a champion for the common good. The language coined was often phrased as an 'urgent duty' to protect lives, a debt that was morally owed to the common public;[54] in reference to Iraq, Bush stated late in 2002 that '[w]e owe it to future generations to deal with this problem'.[55] The US maintained it held the best interests at heart of not only its own public, but the global community also. After resolution 1441 had been adopted, Bush commented that "if action becomes necessary, we will act in the interests of the world'.[56] Colin Powell expanded on this belief in his address to the Security Council on February 5, 2003. He explained ' [w]e have an obligation to our citizens ... to see that our resolutions are complied with. ... We must not fail in our duty and our responsibility to the citizens of the countries that are represented by this body'.[57]
Human rights concerns figured in the US arguments, although to a significantly less extent that the other aspects. President Bush noted in his speech to the General Assembly that Iraq continued 'to commit extremely grave violations of human rights' and repress its people.[58] Towards the end of his speech he assured his audience that the US 'has no quarrel with the Iraqi people. ... Liberty for [them] is a great moral cause, and a great strategic goal'. And in conclusion, he asserted that 'if we fail to act in the face of danger, the people of Iraq will continue to live in brutal submission. ... If we meet our responsibilities ... we can arrive at a very different future. The people of Iraq can shake off their captivity'.[59] Human rights violations were mentioned in passing during the majority of the President's Cincinnati speech.[60] Towards the end of the address President Bush stated that 'America believes that all people are entitled to hope and human rights ... America is a friend to the people of Iraq. Our demands are directed only at the regime ... When these demands are met, the first and greatest benefit will come to Iraqi men, women and children.'[61] Colin Powell referred briefly to violations of human rights in Iraq in the Security Council meeting of February 5, 2003[62] He drew attention to the use of mustard and nerve gases against the Kurds in 1988, where 5000 civilians were killed, and to the list of other vile human rights abuses that had occurred in the country.[63] On March 7, 2003 he encouraged the Security Council members to 'not forget the horrors still going on in Iraq' where people are 'being beaten, brutalised and robbed by Saddam and his regime'.[64]
Further intensive diplomatic work stalled during the months after resolution 1441. The intentions of the US were then laid out in plain terms in an address to the nation made by President Bush on March 17, 2003.[65] A coalition was preparing to 'enforce the just demands of the world'.[66] The President referred to all the arguments already described above: the threat to security, the defiance against the Security Council, the terror of the regime's grip over Iraqi citizens. He also stated that nations needed to recognise 'new and undeniable realities', that 'responding to such enemies [as terrorists] only after they have struck first is not self-defence, it is suicide.'[67]
As the inevitability of war became obvious, greater emphasis was placed on another justification for military action. On making military strikes against Iraq in 1998, the US and the United Kingdom had used the argument that UNSC Resolution 678, which authorised 'all necessary means' be taken to expel Iraq from Kuwait, continued to provide authority to punish Iraq for ceasefire violations.[68] Other Security Council members disputed this reasoning. Since UNSC resolution 1441, Colin Powell had attracted considerable controversy by suggesting that the Security Council members knew 'serious consequences' meant the use of force, and as Iraq had not fully complied with that resolution, another resolution explicitly authorising force was not required.[69] In the address of March 17 the President made direct reference to this form of implied authority argument. He said that previous resolutions made by the Security Council, resolutions 678 and 687 (regarding disarmament obligations) were still in effect and under those authorisations the US and its allies were authorised to use force to rid Iraq of WMD.[70] On March 20 (Iraq time) the US began its military action.[71] In a letter addressed to the President of the Security Council dated March 21, the US Permanent Representative to the UN John Negroponte outlined the basis for the military action.[72] This was that action was necessary because of Iraq's continued material breaches of its disarmament obligations, under relevant Security Council resolutions, including resolution 1441. The action was authorised under existing Security Council resolutions, including 678 and 687. The letter went on to state that' [i]t has been long recognised and understood that a material breach of these obligations removes the basis of the ceasefire and revives the authority to use force under resolution 678'. Additional violations had been committed by Iraq since resolution 1441 provided its final opportunity to comply, which constituted material breaches, reviving authority.[73] Implied authority was not, however, the only basis for the action in this statement. Critically, Negroponte also asserted that '[coalition forces' actions] are necessary steps to defend the United States and the international community from the threat posed by Iraq and to restore international peace and security in the area'.[74]
Negroponte made similar claims at the meeting of the Security Council on March 27, 2003, that the coalition response was legitimate because of the 'understanding' mentioned above.[75] He also noted that the US was acting to compel compliance with these resolutions because 'the risk of inaction is too great to tolerate'.[76]
President Bush neatly summarised the motivations and arguments for the US action discussed above when he said:
Saddam Hussein has gassed his own people. Saddam Hussein has got weapons of mass destruction. Saddam Hussein has... defied the United Nations. Saddam Hussein is providing links to terrorists. Saddam Hussein is a threat to America. And we will deal with him.[77]
On an analysis of these justifications, it is submitted that leading up to the invasion in 2003, the US relied substantially on self-defence as justification for its action. It is evident that the United States' main concerns were that Iraq would use WMD or supply them to terrorists who would do so. Any uncertainty as to whether Iraq had weapons or an adequate military capacity to make them was no longer an acceptable risk after S11; references were couched in terms of Iraq being a specific threat to the defence of the United States because of this uncertainty. This specific threat was emphasised by efforts to link al Qaeda and Iraq and allude to either a sympathetic collusion between the two, or at least equate their motivations and goals. The inference was that S11, or even worse, was likely to happen if action was not taken. To the US, all these elements combined provided a convincing level of evidence that was sufficient to justify military action in the current international climate.
As time went on and after resolution 1441 was adopted, discussion began to include reference to implied authorisation under previous UNSC resolutions. The continued breaches of resolutions by Iraq were included within this argument. The circumstances allow for ample debate under both grounds. Whether the coalition of the willing had implied authority from the Security Council to enforce previous Security Council resolutions has been the focus of numerous academic and governmental discussions around the world. In comparison to the US, the United Kingdom action has more strongly been predicated on this aspect.[78] Similarly, debate has been heated over whether self-defence was available to the US against Iraq, according to the nature of the 'threat'.
Both of these topics require substantial analysis. For the purposes of this paper, it is submitted that self-defence stands out as the most provocative justification for this conflict. This is because the circumstances that the US relied on under self-defence have far-reaching implications. Reference to the two exceptions to the prohibition of force reveals why. The number of times that the Security Council has authorised force under Chapter VII, with subsequent resolutions that identify 'material breaches', are relatively few. The number of states that could pose a threat to the US, or other nations, with similar key identifying features as Iraq, is considerably more numerous. Also, there is a degree of self-discretion in the right to self-defence. The US terms of an acceptable reach of self-defence emphasise a very high level of discretion. This is perceived to be possibly inconsistent with the collective security foundation of the Charter system. Self-defence and the implications of the US action for its terms will be explored in Part III.
A broad review of the general area of current self-defence, undertaken to understand the full implications of US formulations, reveals that commentators' opinions differ greatly and state practice is largely inconclusive as to its confined boundaries. States could be moving towards a less restrictive view. The formal US policy that underlies the reasoning for war with Iraq seeks to pre-empt acute new threats before they have properly emerged, but responds weakly to an application of the most recognised form of self-defence, Article 51, as well as more permissive tests. The events of S11, its aftermath and associated international developments have been used to add credibility to US decision-making, but not altogether successfully. Differences between the Afghanistan and Iraqi actions reveal why; unlike Afghanistan, there was a lack of convincing evidence of the need to invade Iraq, an essential aspect for legitimate self-defence.
By way of its justifications for the invasion, the US has raised critical issues regarding how to defend against modern threats such as WMD, rogue states and terrorism. That pre-emption offers the solution to these issues seems doubtful, because its basis for action is too wide, and it threatens to undermine the prohibition on force if made available as a general principle. The established Charter system can offer the framework for facing modern challenges. It is understood that the US is in a powerful position to affect possible outcomes in this respect, and opinions differ whether the US should continue to work under the established collective security regime. The extent of worldwide problems and the benefits of multilateralism seem to outweigh an isolationist stance.
Self-defence under international law is one of the most problematic and highly disputed topics within the use of force, an already controversial and difficult area. An understanding of self-defence is vitally important because it stands as the only exception to the prohibition on the use of force where states may still act unilaterally. It is invoked in regard to almost every use of military force,[79] and yet is notoriously ill defined.
The starting point for discussion is Article 51 of the UNC, one of only two exceptions to the general prohibition on the use of force, which states:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures to maintain international peace and security.[80]
The simple wording of Article 51 establishes that a state that is the victim of an armed attack may use force to defend itself, and others may join in the collective self-defence of that victim, until the Security Council takes action. The ambiguities of this provision are instantly apparent: what is the nature of the 'inherent right' referred to? What defines an 'armed attack' and when does this action begin? Such questions reveal immediately why disputes arise over its precise ambit.
Much of the academic disagreement over self-defence springs from an assessment of whether the essential components of customary international law and the UNC are closely comparable. The International Court of Justice made some significant statements about self-defence in this regard in the Nicaragua case.[81] There the United States of America had argued it was justified in exercising collective self-defence against Nicaragua by providing assistance to El Salvador, on the basis that Nicaragua's armed attack consisted of providing weapons and other support to rebels seeking to overthrow the Salvadorian government.[82] The Court emphasised that customary international law continues to exist alongside the UNC. The two sources 'do not overlap exactly, and ... do not have the same content'.[83]
The existence of the right of self-defence under customary international law was referred to in Article 51, but the Charter itself did not regulate directly 'all aspects of its content'. For example, the rule in customary international law that self-defence measures must be proportional to the armed attack and necessary to respond to it, were not contained in the provision.[84] These continue to be applicable to cases of self-defence.[85] The Court did not go on to discuss any other rights for the use of force that may exist under customary international law. Importantly, a majority of the Court did not reach agreement that customary international law principles granted wider freedom of action in this area than the UNC.[86] With no definitive judgment on the issue, two main interpretative views have arisen regarding the differences or similarities between the provisions of the Charter and customary international law.
This wide or permissive position upholds the existence of customary international law on considerably broader terms than Article 51. This is often based on the belief that the word 'inherent' in Article 51 preserves the existing customary international law as at 1945.[87] Discussion often centres on arguing for the existence of anticipatory self-defence,[88] which as the name suggests, is the use of force by a state for attacks which are on the brink of launch and have not yet begun,[89] thus the action is in anticipation of rather than a reaction against obvious aggression. Permissive jurists frequently claim that, as customary international law recognised anticipatory self-defence at the time of the inception of the Charter, it is still available today. Anticipatory self-defence in customary international law rests on the basis of the Caroline case, which involved a use of force by Britain against the US.[90] During the course of diplomatic communications, US Secretary of State Daniel Webster outlined that the essential elements of self-defence meant a state would have to show that the 'necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment of deliberation.'[91] Modern anticipatory self-defence is founded on these elements, and is arguably available where there is a reasonable belief that an attack is imminent,[92] and the use of force is necessary and proportionate to the threat.[93] The ICJ in Nicaragua deliberately avoided the issue of the legality of anticipatory self-defence.[94] It stated that the parties relied 'only on the right of self-defence in the case of an armed attack which has already occurred, and the issue of the lawfulness of a response to the imminent threat of an armed attack has not been raised. Accordingly the Court expresses no view on that issue.'[95] However, in the following paragraph the Court stated that in the case of individual (and collective) self-defence, the exercise of the right is subject to the state having been victim of an armed attack.[96] Some commentators equate this statement as a rejection of a right to self-defence against anything other than an armed attack,[97] despite the decision of the Court to limit its decision to facts where an armed attack had already allegedly occurred.[98] The two statements basically conflict, so it is difficult to determine if the Court meant to restrict self-defence as a response to an armed attack alone, and the question generally remains open.
The Caroline case is frequently quoted as outlining the criteria that must be met to establish a lawful exercise of self-defence under customary international law,[99] and has attained the quality of a somewhat 'mythical authority'.[100] Academics and states alike have almost universally agreed that necessity and proportionality are basic elements of any exercise of self-defence. This was one aspect that was confirmed in the Nicaragua case, where the ICJ said self-defence would warrant 'only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law.'[101]
In stark opposition to the above, the restrictive or conservative position views Article 51 as a reflection of customary international law, implying that its exact terms must be met before the lawful exercise of self-defence can be undertaken. Self-defence is seen as a strictly limited and narrowly interpreted exception to the general prohibition.[102] Sir Ian Brownlie has presented the definitive arguments for this position.[103] The whole object of the UNC was to render force subject to the control of the UN. To argue that wider rights are still available outside Article 51 renders this object meaningless, and ignores the principle of effectiveness; the permission provided by Article 51 was, he believed, exceptional in the context of the Charter and exclusive of any customary right of self-defence.[104] Also, Brownlie has more recently argued against the Caroline case as a basis for claiming anticipatory self-defence.[105] To do so meant relying on the belief that relevant customary international law was formed in an exchange of correspondence from 1838-1842. It was more appropriate to examine the content of customary law in 1945 rather than this period. In his view, the Kellogg-Briand Pact, which broadly outlawed war, was a central aspect of state practice between 1928 and 1945. This was the customary international law, as it existed in 1945 and post-developments, that the ICJ in Nicaragua was referring to.[106] Brownlie had previously made similar arguments in his book that state practice from about WWI establishes that the right of self-defence was an emerging notion from the wider self-help doctrine, and was associated with a reaction againstthe use of force.[107] Action against other kinds of threats would be reverting and relying on selective aspects of old doctrines that had been left behind in the evolution of self-defence and States' attitudes towards it.[108] The general acceptance by states of the boundaries of self-defence has seen the content of customary international law develop to become identical with the right expressed in Article 51.[109]
Article 51 reads that the right of self-defence is permitted when 'an armed attack occurs'. This is a specific requirement, but there is no further explanation anywhere in the UNC, resulting in disagreements over its definition.[110] The concept was central inNicaragua, where the alleged armed attack was assistance to rebels by way of the provision of weapons or logistical or other support. The Court held these circumstances did not amount to an armed attack.[111] A restrictive view would assert that the choice of these words in drafting Article 51 were deliberately limiting so that only a 'special form of aggression' that amounted to an armed attack justified self-defence under Article 51.[112] Michael Bothe contends that the word 'occurs' implies that an attack is actually meant to have already happened, and one that is merely likely to happen will not fulfil the provision.[113] Further, the right of a state to respond to behaviour not amounting to an armed attack is beneath the threshold of lawful self-defence, a reading which is consistent with the object and purpose of the UNC which directs the Security Council to decide on such matters.[114] A purely literal interpretation assists restrictive commentators to reject a right to anticipatory self-defence. An important caveat needs to be made on this rejection. While Brownlie may not agree, some restrictive jurists accept that a state need not wait to suffer the actual blow before defending itself, so long as it is certain the blow is coming.[115] Bothe has offered the proposition that where a threat is so direct and overwhelming the victim state faces the equivalent of an armed attack, but this is the limit of any kind of anticipatory self-defence that is currently justifiable.[116] It seems to be a fine distinction then, between requiring an armed attack as the terms of Article 51 dictate and rejecting anticipatory self-defence, but allowing relief where the blow is posed.[117] The anxiety here is about keeping the doctrine contained in accordance with the objects of the prohibition while still being pragmatic, and an implicit concession seems to be made that much will depend on the circumstances in every case.
State practice seems to be used to support either side of the debate surrounding anticipatory self-defence. Anthony Clark Arend, for example, recently examined three incidents; the Cuban Missile Crisis in 1962, the Six Day War between Israel and the United Arab Republic in 1967, and the 1981 attack by Israel on the Osirak reactor in Iraq.[118] Arend considered that Israel claimed a right of anticipatory self-defence in these final two examples.[119] He maintained that there was no clear consensus in debates in the Security Council at the time, that such a right was rejected or supported. He surmised that it was difficult to conclude that customary international law prohibited 'the pre-emptive use of force when undertaken in anticipatory self-defence.'[120] Others have also cited the strike by Israel on the United Arab Republic in 1967 as an example of anticipatory self-defence in action.[121]
In contrast, Christine Grey believes that the majority of states reject anticipatory self-defence; the clear preference is for states to rely on the terms of Article 51 and the occurrence of an armed attack if possible. A large majority of states have rejected a wider right to self-defence since 1945, and she saw this alone as a clear indication of the doubtful status of anticipatory self-defence.[122] Even when relying on a wide right of self-defence in the absence of armed attack, states still invoke Article 51, particularly since the Nicaragua case was decided.[123] Grey acknowledged that when states rely on Article 51 even when the action defies a strict reading of its terms, it might be an unspoken suggestion that Article 51 does allow for a wider customary right including anticipatory self-defence.[124] It is difficult to know as states very rarely provide in-depth doctrinal justifications for their actions.[125] Ultimately, Grey points out, arguments usually concentrate on the facts of specific incidents. States will focus on the established aspects of self-defence, necessity and proportionality, and even those which support a wide view of self-defence often reject these kinds of claims made by other states by arguing that the force was not necessary or proportionate on the particular facts.[126]
Some suggest that, so far, state practice has prevented the narrow reading of the right of self-defence laid down in Article 51 from becoming established in customary international law.[127] Simma puts the situation in these terms: the international community views anticipatory self-defence as normally unlawful, but not necessarily unlawful in all circumstances.[128] In sum, there does appear to be no certain indication that states outright reject anticipatory self-defence; it depends if more weight is given to how states actually behave (Arend's position), or to what states say (Grey's position), both in explanation for their own behaviour or in reaction to other states' conduct.
The US invasion of Iraq in 2003 was buttressed by a potent representation of self-defence principles in formal US policy. This policy is radically formulated when considering the state of self-defence law described above. The pre-emptive doctrine it advances may not be altogether new but its repackaging as a readily available option seems to be.
The US Secretary of Defence, Donald Rumsfeld, described some of the lessons learned from Afghanistan and other recent events in the Department of State's Annual Report to the President and Congress of 2002. In the Chapter 'Fighting the War on Terror' he stated that:
[D]efending the United States requires prevention and sometimes pre-emption. It is not possible to defend against every threat, in every place, at every conceivable time. The only defence ... is to take the war to the enemy. The best defence is a good offence.[129]
The formalised embrace of a widely framed defence tactic by the United States towards international security issues, which has become known as the Bush Doctrine, was unveiled in its National Security Strategy (NSS), released 17 September 2002. In its introduction, the NSS noted that US enemies strove to possess weapons of mass destruction. Part of the strategy against this danger, was 'as a matter of common sense and self-defence ... [to] act against such emerging threats before they are fully formed.... The only path to peace and security is the path of action.[130] Chapter 5 expands further on the strategy. Its aim is to prevent threats from WMD.[131] The strategy placed importance on the US stopping 'rogue states and their terrorist clients' from threatening the use of such weapons. The goals of such enemies meant a reactive posture could no longer be taken; put bluntly,' [w]e cannot let our enemies strike first' because of the immediacy and magnitude of the harm. A positional change was deemed necessary because traditional deterrence was no longer effective. The NSS goes on to state:
For centuries, international law recognised that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack.... We must adapt the concept ot imminent threat to the capabilities of today's adversaries.... The United States has long maintained the option of pre-emptive actions to counter a sufficient threat to our national security. The gretaer the threat, the greater is the risk of inaction- and the more compelling the reason for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively.[132]
These statements echo many of the fears and justifications expressed by President Bush, Secretary of State Colin Powell and others in referring to the alleged Iraqi threat.[133] Here, future action is supposedly based on existing international law of which anticipatory self-defence is a part, as if it were a well-recognised right (albeit adapted to meet the security needs of the US). This has been criticised as a presentation of the law that is far from the correct position.[134] It is submitted that this criticism is well founded. As pointed out above,[135] historically self-defence was subsumed in the wider doctrine of self-help before WWI, which itself may have been recognised for 'centuries', but hardly can be said to exist in the same form today. There is not necessarily a consensus that international law recognises self-defence against even an imminent attack.
Other criticism asserts that the policy view enunciated in the NSS goes well beyond a permissive view of Article 51.[136] This also seems valid. Considering that anticipatory self-defence is based on a credible claim that there is a palpable and imminent threat,[137] the US is claiming a right to pre-emptive self-defence where there is 'uncertainty' about the time or place of the attack. Pre-emption relies on a possible, contingent threat, a possible event seized and fixated on from a range of conceivable future events. The Bush Doctrine takes a step beyond even the already controversial doctrine of anticipatory self-defence, taking the element of an imminent threat, an urgent need, and transforming it into a feasible outcome.
The claim that the US has upheld the availability of pre-emptive actions is of interest. National Security Adviser Condoleezza Rice, commenting on the NSS, said that the US 'has long affirmed the right to anticipatory self-defence — from the Cuban Missile Crisis in 1962 to the crisis on the Korean Peninsula in 1994.'[138] Note that again anticipatory self-defence and pre-emption are closely associated by the Bush administration in references to policy. This is deceptive because there are substantial differences between the two doctrines.[139] Anticipatory self-defence has greater recognition in theory than pre-emption.[140] Whether the US itself has used anticipatory self-defence in the past is open to debate,[141] and pre-emption has a historical basis from the Cold War period,[142] as well as periodic claims made to its use.[143] Michael Reisman claims that the issue with the Bush Doctrine is not whether pre-emption has been a theoretical option before, but the explicitness with which the claim to pre-emption has been made.[144] This does seem to be the heart of the matter; pre-emption may have been a viable option in the past, but the elevation of the doctrine now to open and explicit national policy is to a great extent why it is so controversial.[145]
The US decided that Iraq surpassed the threshold of an imminent threat, under the terms of its own pre-emptive doctrine described above. It is asserted that the US view pushes the current parameters of self-defence to their limit and beyond, and raises worthwhile questions about whether the invasion and the policy behind it can withstand an application of the current law. Under a purely restrictive application of Article 51 there is a resounding failure by the US to meet its requirements. There was no armed attack, on any definition, by Iraq against the US. Perhaps because of this perceived failure, US justifications attempted to rely more on the availability of an expansive form anticipatory self-defence instead. As already illustrated, this doctrine is highly contested. It is of interest to note that despite the bold statements by the Bush administration that it reserved the right to use preemptive self-defence, it also made efforts to legitimise its own actions within the UN framework. After the war had begun, the argument for implied authority appeared more frequently and the pre-emptive self-defence aspect was played down. William Taft IV[146] and Todd Buchwald[147] took such a position in July 2003.[148] They maintained that 'each use of force must find legitimacy in the facts and circumstances that the state believes have made it necessary', judged not on abstract concepts but on particular events.[149] This is not an unreasonable assessment of state practice in the past. In the view of Taft and Buchwald there had been an 'essentially ongoing conflict' after the invasion of Kuwait.[150] The specific context of Operation Enduring Freedom made the action lawful, and the invasion was authorised because of breaches of certain essential conditions of previous Security Council resolutions. Their conclusion was that the conflict might not appear as an example of a pre-emptive use of force when seen as the final episode in a twelve-year conflict, although pre-emption of Iraq's pursuit and possession of WMD was a principle objective of the US. Pre-emptive force is certainly lawful, they assert, where it 'represents an episode in an ongoing broader conflict' and where it is consistent with the resolutions of the Security Council.[151]
The 'ongoing conflict' position is problematic. Was there an ongoing struggle between Iraq and the UN in effecting compliance with UNSC resolutions? Undoubtedly. But what of US involvement? It took a significant part in the initial eviction of Iraq from Kuwait under Security Council authorisation. It also took forceful action against Iraq after the attempted assassination of President Bush Snr in 1993, and in concert with the United Kingdom in 1998 on the basis of Iraq's transgressions. The latter was also undertaken on the argument of implied authorisation under previous Security Council resolutions.[152] Whether a handful of strikes by the US against Iraq, over a twelve-year period, can be called an ongoing conflict seems doubtful, at least in terms of self-defence. Unlike the situation with Afghanistan, which has also been labelled an 'ongoing conflict',[153] there had been no attack and continued state-supported terrorism blatantly aimed at the US. Taft and Buchwald's arguments do not make a convincing case for justifying military action under the banner of self-defence. The ongoing conflict was in fact an issue of compliance with the UN, not between the US and Iraq. Academics have focused on the more provocative aspects and implications of the Bush Doctrine and the recent events in Iraq within the self-defence context. Questions have focused on deciding if the Iraqi state of affairs met the threshold tests of imminence, necessity and proportionality as required by an anticipatory self-defence doctrine. Arguments against the legality of the invasion criticise the lack of evidence to establish a case even under this basis. Imminence, in any plausible form, is allegedly difficult to find in the circumstances existing at the time of the invasion.[154] This is correct, and not at all surprising when considering the underlying US policy focuses on possibilities rather than the actualities of imminence.
What kinds of approach do those who support the invasion use? Some provide support within anticipatory self-defence boundaries, although sometimes only in duality with an argument for implied authority under existing Security Council resolutions.[155] This could be a good indication that the legal nature of the invasion under the more established grounds within self-defence is perceived as tenuous. Other scholars go further and seek to revise the categories of imminence, necessity and proportionality, as previously understood under the Caroline case. These arguably should no longer apply in a 'narrow, mechanical approach.'[156] Abraham Sofaer and John Yoo use a similar strategy and reassess the existing principles to allow for a more wide-ranging assessment of the facts. These include the likelihood of the threat being realised if action is not taken; the nature and level of the harm involved, and the availability and practicality of alternative measures.[157] Christopher Greenwood proposes that all states have the right of self-defence against an armed attack, actual or imminent, and that imminence is to be determined according to the gravity of the threat and means by which it might materialise, such that imminence will vary from case to case.[158]
What has become particularly evident from this whole episode is that jurists are struggling with the issue of how best to adapt the notion of a 'threat', as it has been traditionally understood since WWII, to be more alive to modern realities. There are indicia that developments in self-defence are emerging, because of new kinds of threats and dangers faced by states today. In particular this is due to the reaction to the terrorist attacks of S11. The horror at the unprecedented level of destruction and the strategic targeting of civilians on the American homeland by terrorists provoked an immediate and strong display of support by the Security Council for the US. UNSC Resolution 1368, adopted the day after the attacks, referred explicitly to the right of inherent self-defence .[159] It condemned the terrorist actions and expressed its readiness to take all necessary steps to respond to them, and combat all forms of terrorism. Resolution 1373 was more extensive, adopted on 28 September. It reaffirmed self-defence as reiterated in Resolution 1368.[160]
These resolutions, while not Security Council authorisation for the use of force, provided a form of legitimacy for US actions.[161] There was widespread international support for Operation Enduring Freedom,[162] although some debate about the implications for state responsibility, and proportionality issues.[163] It could be argued that now self-defence can be legitimately exercised against a state which has a clearly evidenced, close relationship with terrorists who have already made armed attacks against a victim state and will likely do so again.[164] O'Connell sees Operation Enduring Freedom in this way, as an example of anticipatory self-defence which is justified on the basis of 'ongoing attacks.'[165] Operating Enduring Freedom and the associated war on terror rhetoric has undoubtedly been used by the US to lend credence to the action against Iraq. However, there were profound differences between the campaigns against Iraq and Afghanistan, and this is most aptly demonstrated by the international reaction to the military action against Iraq, both before and after. There was a far greater level of criticism and anxiety shown by the global community towards the Iraqi invasion,[166] and for good reason. There was reasonably clear and compelling evidence that the Afghani Taliban supported al Qaeda in its terrorist efforts,[167] and that such action could and would likely continue.[168] Hence the Security Council support for the US claim to self-defence; in Resolution 1390 it condemned the Taliban for allowing Afghanistan to be used as a base for terrorists training and activities, including the export of terrorism by the al Qaeda network.[169] By contrast, prior to the invasion, there had been no previous Iraq-based launch of a terrorist attack. Links with terrorists did not go beyond unconfirmed associations between al Qaeda and Iraq, and of course the possibility that Iraq may supply weapons to anti-American groups sometime in the future. These associations between Al Qaeda and Iraq have never been substantiated satisfactorily.[170] What can be distilled from these comparisons is a statement about the need for convincing evidence to back up claims; a lack of evidence makes others suspicious about true motives.
O'Connell has made a pertinent summation about the need for evidence, which relates directly to the Iraqi invasion.
Rule violations much be confirmed by some objective evidence of wrong-doing... The United Nations Charter states clearly that armed force may only be used in self-defence. Force may not be used to punish, send a message, display power etc. The implication of these rules is that where a question might be raised, evidence is required to prove that the state is acting in self-defence and not acting to punish or wreak revenge.[171]
It is submitted that this pinpoints the crux of the problem with US justifications for invading Iraq. The case fails an application of self-defence under current international law exactly because the US has provided no evidence, then or now, that Iraq was a real, credible threat to its national security, despite the most earnest attempts.[172] Arguably it was doomed in this undertaking because its conception of self-defence in the circumstances, pre-emption, intrinsically conflicts with even the permissive view, that is, anticipatory self-defence. It is submitted that even reworking the criteria of anticipatory self-defence as Sofaer and Yoo do does not help the US case. Evidence still needs to be produced to fulfil the elements of imminence, necessity and proportionality no matter how they are described, or else they become worthless.[173] Evidence cannot be produced for a pre-emptive claim because it is a doctrine that takes as its basis events that have not yet, and may never, occur.
It is necessary to address some of the troubling issues that have been highlighted by the US actions and policy position, and its clash with most interpretations of current international law. Perhaps the most disturbing facet of the invasion is the United States' willingness to shrug off the necessity of justifying its actions under the Charter regime, at least in regard to the self-defence aspects of its argument, and substitute its own doctrinal validations, saying the law must be adapted. The question then becomes whether the current system can respond to the anxieties raised by the Bush Doctrine; is pre-emption the best way to deal with the defence issues that face states today? If not, options for the future should be explored, as well as what may lie ahead if the US continues to stride forward along the pre-emptive path.
The Bush doctrine is the US solution to defend against two grim blights of the modern age - terrorism and weapons of mass destruction (WMD). Although these are not new problems, the events of S11 have underscored their real and terrifying potential. The implications have been widely agreed;[174]
WMD have enormous destructive capabilities against both populations and entire habitats. Combine this capability with extremist terrorist groups, with a propensity to strike an 'enemy' at any time or place without warning, and the result can be catastrophic. Terrorists have no moral disincentive to avoid using WMD, for attacking civilians is usually a central tenet of their philosophy, nor do they fear retribution.
Criticisms suggest that the UNC use of force regime is inadequate and out of date in the face of modern technology and non-state actors such as terrorists. Arend is one such critic, who identifies two main potential areas of weakness.[175] First, the Charter is a 'pre-atomic' document, drafted on the basis of traditional conflicts where states use armies that act overtly aggressive. States no longer behave in these traditional ways.[176] Second, extensive challenges are provided by so-called 'rogue' states, defined as 'perennial violators' of international rules.[177] These states engage in behaviour that also does not easily fall under the rules of self-defence; rather than armed attacks, they engage in covert action, support of rebels and terrorism.[178] The issue of WMD adds to their potential threat. Arend points out that the world community becomes deeply concerned when a state that already refuses to adhere to acceptable norms of international behaviour, attempts to develop such weapons.[179] Arend commends the innovative response of the Security Council to S1 1, in allowing for a less restrictive interpretation of an armed attack in the inherent right of self-defence, and further for the condemnation of the Taliban in Resolution 1390.[180] He concludes that the strict test of necessity no longer is appropriate in the face of WMD, and that no clear alternative has emerged, but offers no solution.[181]
These are legitimate and well-founded concerns, all of which were raised by the pre-emptive actions by the US against Iraq.[182] As a starting point for considering how the Charter system might be reinterpreted or reformed to address these concerns, it is useful to consider the options presented by the US policy of pre-emptive self-defence.
There are a number of significant policy difficulties with applying pre-emptive force to remedy these problems. A restrictive view of Article 51 that requires an actual armed attack, or a permissive view that requires signals of imminent action, are both logical when considering the broad prohibition itself. Each affords a right of defence only where there is a real, distinctive and evincible event that supports a defensive action, distinguishing self-defence from other motives for aggression.[183] In the right factual circumstances, the international community may be willing to accept an argument for anticipatory self-defence where such evidence is produced. However, pre-emptive self-defence removes any legitimising elements of anticipatory self-defence and replaces a tangible threat with a statistical possibility. The US based its justifications on the fact that an openly belligerent state may make use of WMD, of which it may or may not have, or supply them to subversives. The task is to find what aspect makes Iraq a legally distinctive threat in its relationship to the US, as opposed to the relations that many other states around the world have with each other.[184] On the basis of mere hostile intent, pre-emption would justify action by Arab countries against Israel, by China against Taiwan, by India against Pakistan, and so on.[185] The Security Council rejected the argument that a state's attempts to develop WMD could be a prerequisite for another state to use self-defence, when Israel argued this line of reasoning after attacking Iraq's Osirak reactor in 1981.[186] This seems sensible because it would also leave too many questions open - what level of development would need to be required? Actual possession of WMD could not be a sufficient threshold either, for this would allow states to openly target the US, Britain, France, China, and Russia.[187] It has been pointed out that a pre-emptive action against these modern nuclear states would be unlikely because of the risk of nuclear war, indicating that it is viable only against pre-nuclear states, therefore encouraging rather than curbing the development of nuclear weapons.[188] It appears true that a state would not openly use WMD against a modern nuclear state because of self-destruction. That is why terrorists and their greater anonymity are so useful; pre-emption may well encourage smaller states to develop WMD, and while not able to use them themselves, strengthen links with terrorists who can do their 'dirty work' against those for whom they feel hostility. Yet this is the very evil the US tries to eliminate.
This elastic and malleable definition of a threat justifying forceful self-defence opens the door to obvious abuse, because it places reliance entirely on the subjective perception of the 'victim'. It is claimed that there is no limiting principle, no yardstick by which other states may judge the action as reasonable, and which can be applied consistently to all states.[189] This criticism must be correct. Pre-emptive force removes any element of objectivity, because under its auspices it allows a state to make its own determination of whether it considers another state a threat based on abstract potential. Feelings of insecurity or areas of instability could colour one State's perception of the facts. This position is further undermined by a state that may be unwilling to give evidence of why it believes another state to be a serious threat because of national security intelligence issues.[190] States, on information only they are privy to, may be tempted to shoot first and answer questions later. This state of affairs has been equated to a reversion to nineteenth century order, when fears of others' military strength and possible hostility openly fuelled attacks.[191] It is not difficult to see how the evasive components of pre-emptive self-defence could rapidly erode the established constraints of the use of force.
Pre-emption highlights all the problems of when force becomes unhindered by substantive rules. One logically returns to the answer already provided by states such as the US, Britain, France and Russia in response to such problems - the Charter of the United Nations, and its system of collective security under the Security Council.
Some say that the invasion of Iraq has produced a climacteric moment for the Charter. Others see it is irrefutable evidence that the Charter's use-of-force regime is already defunct. Part of the reason for concentrating on the US reasons for the invasion is because of the United States' current 'hyperpower' status.[192] How the pre-emptive doctrine will affect international law in general and the Charter in particular will likely depend on how the US acts from here, and much of the analysis of the invasion and its future implications discusses this point.
Those critical of the US often emphasise that working within the confines of the Charter system in the future will be more productive. Richard Falk argues that the tendency of the US to rely on military superiority, as the pre-emptive policy demonstrates, should be avoided because it encourages the formation of defensive alliances and arms races.[193] Where there is an opportunity for the Charter system to develop as the need arises, it can, he asserts, but this must be supported with factually and doctrinally persuasive explanation of why a particular instance of expanding and developing the rules is justified.[194] S11 is acase in point. Security Council resolution 1368 was a positive response generating optimism, that demonstrated the 'goodwill and collective wisdom of the Council as global decision making forum', and also that the Charter system could be flexible and adapt to new demands.[195] Terrorism was treated as a threat against which the use of force could be a legitimate and necessary response, and this must bode some optimism for the UN system.
More strikingly, some see the use of force as a blank slate on which the US may carve out its future. Michael Glennon recently reviewed the current law, concluding that so many states have used armed force in flagrant violation of the Charter that the regime under it has lapsed;[196] the US therefore could not have been acting unlawfully in invading Iraq because 'there was no international law governing the use of force'.[197] In his commentary, Glennon emphasises the political reality of the US' multi-faceted world power and suggests that expectations that the US should allow itself to be checked through the UN by other members of the Security Council are unrealistic, because those same states would act similarly in their own self-interest if in the same position.[198] He does admit that American hegemony will not endure forever, however, and suggests that it would be in the interests of the US to construct new international mechanisms, which should be capable of protecting or advancing US national interests when military power is unavailable or unsuitable.[199] What Glennon has in mind here is unknown.
Thomas Franck disagrees with the belief that 'anything goes' under current international law in regard to the use of force. He accepts that although the literal letter of the UNC may no longer be applied, state behaviour does not evidence that any unilateral, unauthorised use of force in the national interest is acceptable, northat states operate on the belief that there are no rules.[200] He questions whether the US has the pre-eminence that Glennon seems to extol in. To him, it is impossible for the US to confront essential issues all alone, such as achieving non-proliferation, controlling population growth, containing proliferating diseases, and fighting terrorism. This, if anything, should suggest that mechanisms for multilateral action should be nourished, not thrown aside.[201] The US has by its actions repudiated the central decision-making premise of the Charter system, in Franck's view.[202] He criticises the US for setting aside its obligations under the Charter so easily. The US needs other nations to have a stake in collective security to serve its own interests, such as battling terrorism. Repeated recourse to unilateral force will destroy the impetus for other states to join in such collective measures.[203] He asks astutely that if the US is ready to destroy the UN system because it cannot accept both its merits and its limitations, what will replace it?[204]
Franck's viewpoint strikes more resonance with common sense and the broader picture. States do accept there are rules with regard to force. It is in their interests to do so, especially many smaller states that have less military or political clout. Glennon may see collective security as illusionary because of its basis on equal sovereign states, but it has undeniable benefits when facing problems that require truly global cooperation. A multilateralist system, however, requires reciprocity, especially on the part of the larger actors whose participation is admittedly essential. It seems the US wants the benefits of a multilateral system without paying the political costs; it refers to the irrelevance of the UN in initiating action, yet expects the UN to support the massive effort necessary to clean up and build a democratic, post-war Iraq.[205] It is in the United States' best interests to work with the UN, if it wants the benefits that it has produced to continue. To its detriment, US pre-emptive force strikes at the heart of the UN system, just as Franck suggests. It substitutes disputed law for no law. It provides a disincentive for other states to participate in the system. Its wider implications mean war and aggression would escalate if established as a general principle. Glennon may suggest that as a hyperpower in a realm of supposed lawlessness, the US may do as it will, but the long-term consequences forewarn its choices. Fears have been expressed that an ethos of anti-Americanism will produce far more resentment, suicide bombers, and terrorists than even a sustained US pre-emptive strategy could handle.[206] Much depends on whether the US wants to present an image of American power that derives from strength but also perceived fidelity to universal values like the rule of law.[207] That fidelity is missing when the US takes Iraq to task partially because it scorned the will of the international community, but in doing so circumvents and undermines the expression of that same will.
What about the immediate precedent value of the Iraqi invasion? Iraq could be viewed as a special case, so that the US action could not readily be transformed into a principle of general application.[208] The elements of Iraq's case - its naked aggression witnessed by the Kuwaiti invasion, its horrid human rights abuses and despicable use of weaponry against its own citizens, its steadfast refusal to accept disarmament measures - in sum represent an atypical set of circumstances. One interpretation of the 2003 invasion is that the use offorce was illegal yet valid because of these combined factors, as well as Chapter VII related events, and on the basis of the beneficial impact to the global and local community.[209] The relegation of the Iraqi invasion to a special case could well occur if the US pre-emptive doctrine stops at Iraq. The likelihood of WMD being discovered in Iraq has almost been dismissed altogether, and currently serious and critical questions are being asked of US intelligence sources that suggested Iraq maintained significant stockpiles. This may strengthen internal and external criticism of US actions, and cause a scaling down of its war-dominated rhetoric. Also, the end of the Bush administration could result in a rejection of pre-emption as a formal policy.
Aside from speculations about the US, many see the invasion as a challenge, a crisis point for the Charter system. It is believed that if is not able to adapt to the changing nature of threats, it will indeed be reduced to irrelevance.[210] It is submitted that the Charter can respond to changing circumstances. Should anticipatory self-defence be considered as an option? A number of commentators have concluded cautiously that it should, because requiring an armed attack that may wreak catastrophic disaster to occur first is completely unrealistic. To have to wait to absorb a certain first attack, when the technology of modern warfare means that this could kill thousands or hundreds of thousands, does seem to defy logic. The threat, although not as clearly identifiable as traditional war-like aggression, must be such that it can still be 'identified credibly, specifically, and with a high degree of certainty'.[211] Emphasis has been on the traditional criteria for anticipatory self-defence, seeking the middle ground that lies between no action and pre-emptive action.[212] Some see the criteria taking a wide-ranging assessment of all the facts and circumstances.[213] This at least accords with the view that, on the basis of state practice, states may accept a right to anticipatory self-defence on appropriate and convincing grounds. The pivotal aspect must be evidence, in order to distinguish from force that is used for dubious reasons. Anticipatory self-defence may therefore be a tentative proposal for the problem of WMD.[214] But it is not the answer to terrorism. Karl Meessen asserts that the criteria of anticipatory self-defence will not be easily fulfilled in the case of terrorists.[215] He believes military action has been shown to be an ineffective tool to combat terrorism, therefore to convince other states that the singling out of a particular state is necessary would be difficult. The choice of the target state primarily would need to be determined by a deliberate and persistent failure to fulfil international obligations that required eradicating terrorist activities.[216] The case of Afghanistan supports this reasoning; the international community accepted that Operation Enduring Freedom was necessary on the evidence that terrorism was flourishing there, and that S1 1 had been a direct result of that situation. Aside from the circumstances such as Afghanistan, where state-supported terrorism and attacks were closely linked, it does appear that answering terrorism with violence is ineffective. What the best solution is to this complex and disturbing phenomenon remains to be seen.
A consideration of the evidence provided by the US, and the terms in which issues were framed, reveals that the US invasion of Iraq was based most strongly on the grounds of self-defence, at least in terms of the lead up to the invasion. President Bush and others argued self-defence fervently, trying to convince others of the danger posed by the Iraqi situation, and that forceful action was necessary. Their policy formulation of self-defence, pre-emption, seemed to be devised so as to permit such an invasion. But this formulation is problematic. Self-defence principles are based on a reaction to immediate threats to self, fuelled by urgency and impending destruction. Pre-emption cannot be said to be the same, for it reacts against latent threats that have not truly formed, inchoate dangers that may never appear.
In principle this doctrine opens up a Pandora's box that would hugely undermine the current limited legal availability of the use of force. The reasons the US gave did not convince the Security Council to authorise force, and neither do they seem plausible under self-defence. After a closer examination of the current status of self-defence, and the logic it rests on, it is difficult to conclude the action was justified on these grounds. One cannot help but feel trepidation if the US decides to continue to use pre-emption to solve security issues. However, it might succumb to pressure and abandon pre-emption, or realise its dangerous potential if developed as a precedent.
What the US action has done, in a more positive sense, is draw attention to real and pressing issues with defence in the modern era, particularly weapons of mass destruction and terrorist activities. Many can see the value of the collective decision-making on security issues under the Charter system to face these threats. Judging by reactions to September 11, the world community can respond to epochal moments and the urgent realisations they may bring.
One commentator has said that international law is largely neither more nor less than what the powerful actors in the system say it is.[217] The invasion could be seen as a statement by the world's most powerful actor that it no longer adheres to one of the greatest principles of twentieth century international law - the formal prohibition against the 'scourge of war'. It is hoped that future events will prove that this is not so.
[*] The author is currently working for a major financial institution in Wellington, whilst exploring career opportunities in research and policy in the public sector.
[1] Charter of the United Nations, 557 UNTS 143, article 2 (entered into force 24 October 1945).
[2] See Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, GA Res 2625 (XXV), UN Doc A/Res/2625 (XXV) (1970).
[3] Christine Grey, International Law and the Use of Force (2000) 24.
[4] In response to this argument, Dixon and McCorquodale point to the historical context of the Charter itself, that suggests that traditional force alone is targeted, supported by the fact that an amendment referring to economic measures at the San Francisco Conference was rejected: Martin Dixon and Robert McCorquodale, Cases and Materials on International Law (1991) 554.
[5] D J Harris, Cases and Materials on International Law (5th ed, 1998) 866.
[6] Lewis Henkin et al, Right v. Might — International Law and the Use of Force (1989) 40.
[7] Malcolm Shaw, International Law (4th ed, 1997) 781; Ian Brownlie, International Law and the Use of Force by States (revised edition, 1981) 121.
[8] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, 100.
[9] The White House Information Sheet on Coalition Members, which is available at <http://www.whitehouse.gov/news/releases/2003/03/20030327-10.html> (last visited 15 January 2004), states that 49 States were 'publicly committed' to the coalition. Sean Murphy points out that only three other counties aside from the US contributed combat forces: Sean Murphy, 'Use of Military Force to Disarm Iraq' (2003) 97 American Journal of International Law 419, 428.
[10] For ease of reference for the purposes of this paper reference will be made to the 'invasion of Iraq by the US', but it should be noted that the US did not act alone in undertaking the invasion. See above note.
[11] Charter of the United Nations, 557 UNTS 143, article 42 and article 51 (entered into force 24 October 1945).
[12] SC Res 660, UN Doc S/Res/660 (1990).
[13] SC Res 687, UN Doc S/Res/687 (1991).
[14] SC Res 707, UN Doc S/Res/707 (1991); SC Res 715, UN Doc S/Res/715 (1991); SC Res 949, UN Doc S/Res/949 (1994); SC Res 1060, UN Doc S/Res/1060 (1996); SC Res 1115, UN Doc S/Res/1115 (1997); SC Res 1134, UN Doc S/Res/1134 (1997); SC Res 1137, UN Doc S/Res/1137 (1997); SC Res 1154, UN Doc S/Res/1154 (1998).
[15] UN Doc S/PV. 3955 (1998).
[16] SC Res 1284, UN Doc S/Res/1284 (1999).
[17] Letter dated 16 September 2002 from the Secretary-General addressed to the President of the Security Council, (Sept 16, 2002), UN Doc S/2002/1034 (2002).
[18] Letter from the Permanent Representative of the United States of America, to the United Nations, Addressed to the President of the Security Council (Oct 7, 2001), UN Doc S/2001/946 (2001). See also Part II below 33-34.
[19] Operation Enduring Freedom - Afghanistan, Global Security Organisation, available at <http://www.globalsecurity.org/military/ops/enduring-freedom.htm> last visited November 23, 2003.
[20] Presidential Address to Joint Session of Congress, September 20, 2001, available at http://www.whitehouse.gov/news/releases/2001/09/20010920-8.html last visited December 12, 2003.
[2] 1 Allison Ehlert, 'Iraq: At the Apex of Evil' (2003) 21 Berkeley Journal of International Law 731, 734. Ehlert identifies these advisers as Vice President Dick Cheney, Secretary of State Colin Powell, National Security Advisor Condoleezza Rice, and Deputy Secretary of Defense Paul Wolfowitz.
[22] State of the Union speech, January 29, 2002, available at the Whitehouse website <http://www.whitehouse.gov/news/releases/2002/01/20020129-11.html> last visited December 12, 2003.
[23] Ibid.
[24] In response to media questioning about the speech, Bush administration officials made efforts to play down these overtones. White House spokesman Ari Fleischer said President Bush was 'not sending a signal that military action is imminent': 1/31/02 Washington Post A3. The Secretary of State Colin Powell also announced not long after the speech that the administration had no immediate intention to go to war against Iraq: 2/12/02 Washington Post A20.
[25] President Bush's Remarks at the United Nations General Assembly, September 12, 2002, available at <http://www.whitehouse.gov/news/releases/2002/09/20020912- 1 .html> at December 15, 2003.
[26] Ibid.
[27] Ibid.
[28] President Bush Outlines Iraqi Threat, Cincinnati Museum Centre, October 7, 2002, available at <http://www.whitehouse.gov/news/releases/2002/10/20021007-8.html> at December 15, 2003.
[29] Ibid.
[30] Ibid.
[31] Ibid.
[32] Ibid.
[33] SC Res 1441, UN Doc S/Res/1441 (2002).
[34] President Pleased with UN Vote, November 8, 2002, available at http://www.whitehouse.gov/news/releases/2002/11/20021108-1.html at January 10, 2004.
[35] Press Release, 'Security Council holds Iraq in 'material breach' of disarmament obligations, offers final chance to comply, unanimously adopting resolution 1441' (2002), UN Doc SC/7564 (2002).
[36] UN Doc S/PV. 4701 (2003).
[37] Ibid 9.
[38] Ibid 12.
[39] Ibid.
[40] Ibid 14.
[41] Ibid 15.
[42] Ibid 17.
[43] Ibid.
[44] UN Doc S/PV. 4707 (2003); UN Doc S/PV. 4714 (2003).
[45] UN Doc S/PV. 4707 (2003) 19; UN Doc S/PV. 4714 (2003) 14.
[46] UN Doc S/PV. 4707 (2003) 21.
[47] These flagrant violations were also listed in some detail in the US Congressional Resolution that authorised President Bush to use force: Authorization for the Use of Military Force Against Iraq Resolution of 2002, Pub L No 107-243, 116 Stat. 1498 (2002) 1501; also available at http://usinfo.state.gov/regional/nea/iraq/text/1010res.htm at January 17, 2004.
[48] Remarks at General Assembly, above n 25.
[49] Ibid.
[50] UN Doc S/PV. 4701 (2003). These assessments were made by Hans Blix, Executive Chairman of the UN Monitoring, Verification and Inspection Commission and Mohammed ElBaradei, Director General of the International Atomic Energy Agency:
[51] Ibid 2.
[52] Ibid 7.
[53] Ibid 8.
[54] Remarks at the General Assembly, above n 25: 'Today, we turn to the urgent duty of protecting other lives, without illusion and without fear'; Outline of Iraqi threat at Cincinnati, above n 28: '... we have every reason to assume the worst, and we have an urgent duty to prevent the worst from occurring'.
[55] 8/9/02 Washington PostA01.
[56] Remarks on resolution 1441, above n 34.
[57] UN Doc S/PV. 4701 (2003) 17.
[58] Remarks at the General Assembly, above n 25. Within the content of this speech, only two relatively short paragraphs were dedicated to describing humanitarian concerns, and two lines referred to the positive outcome for the Iraqi people if the regime in Iraq was removed.
[59] Ibid.
[60] Outline of Iraqi threat at Cincinnati, above n 28. Iraq 'practised terror against its own people', and was controlled by a 'murderous tyrant who has already used chemical weapons to kill thousands of people'. The regime was described as 'merciless'. Saddam Hussein has 'ordered chemical attacks on ... more than forty villages in his own country.' The dictator of Iraq 'is a student of Stalin, using murder as a tool of terror and control ...'
[61] Ibid.
[62] UN Doc S/PV. 4701 (2003).
[63] Ibid.
[64] UN Doc S/PV. 4714 (2003) 17.
[65] 'President says Saddam Hussein must leave Iraq within 48 hours', available at <http://www.whitehouse.gov/news/releases/2003/03/iraq/20030317-17.html> at 21 January 2004.
[66] Ibid.
[67] Ibid.
[68] See Jules Lobel and Michael Ratner, 'Bypassing the Security Council: Ambiguous authorisations to use Force' (1999) 93 American Journal of International Law 124.
[69] 3/18/2003 Washington Post A16.
[70] Ibid.
[71] President Bush had been authorised by the US Congress to use force against Iraq, on October 11, 2002. The grounds specified in the Congressional Resolution correlate to those detailed here: that Iraq posed a continuing threat to the national security of United States, remained in material breach of its international obligations, and that Iraq's 'demonstrated capability and willingness to use weapons of mass destruction, the risk that the current Iraqi regime will either employ those weapons to launch a surprise attack against the United States or its Armed Forces or provide them to international terrorists who would do so, and the extreme magnitude of harm that would result to the US and its citizens from such an attack, combine to justify action by the US to defend itself’. Authorization for the Use of Military Force Against Iraq Resolution of 2002, Pub L No 107-243, 116 Stat 1498 (2002) 1501; also available at <http://usinfo.state.gov/regional/nea/iraq/text/1010res.htm> at 22 January 2004.
[72] Letter dated 20 March 2003 from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council, UN Doc S/2003/351 (2003).
[73] Ibid.
[74] Ibid.
[75] UN Doc S/PV. 4726 (Resumption 1) (2003) 25.
[76] Ibid.
[77] 2/19/2003 Washington Post A24.
[78] Lord Goldsmith, Legal Basis for the Use of Force Against Iraq (March 17, 2003) (statement by UK attorney general in response to a parliamentary question), available at <http://www.labour.org.uk/legalbasis> (last visited 27 January 2004). This does not mention the grounds of self-defence. Although note that some official US state departments cite non-compliance with UNSC resolutions as the reason for the invasion, for an example, see the CIA website fact sheet on Iraq, available at <http://www.cia.gov/cia/publications/factbook/geos/iz.html> at November 12, 2003.
[79] Bruno Simma (ed) et al, The Charter of the United Nations: A Commentary (2nd ed, 2002) vol I, 789; Yoram Dinstein, War, Aggression and Self-Defence (2nd ed, 1994), 178.
[80] Charter of the United Nations, 557 UNTS 143, article 51 (entered into force 24 October 1945).
[81] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits)[1986] ICJ Rep 14. The case caused considerable controversy, and evoked criticism, not only because of the decision of the court, but also because the United States withdrew from participating in the proceedings before the Merits stage, having strongly objected to the Court's establishment of jurisdiction and competence over the case, and because El Salvador, the alleged victim of the attack, was denied the right to intervene in the proceedings. See eg, Monroe Leigh, 'Judicial Decision: Military and Paramilitary Activities in and Against Nicaragua' (1986) 81 American Journal of International Law 206; Richard O'Meara, 'Applying the Critical Jurisprudence of International Law to the case Concerning Military and Paramilitary Activities in and Against Nicaragua' (1985) 71 Virginia Law Review 1183. Despite this controversy, contemporary commentators refer to the case often as the leading judicial decision, and it seems to be well established as a source given some weight of authority in the area of self-defence.
[82] Michael Glennon,'The Fog of Law: Self-Defence, Inherence, and Incoherence in Article 51 of the United Nations Charter' (2002) 25 Harvard Journal of Law & Public Policy 539, 541.
[83] Nicaragua v United States of America) above n 81, 94 [176].
[84] Ibid.
[85] Shaw, above n 7, 788-789.
[86] Dixon and McCorquodale, above n 4, 561.
[87] Ibid 573.
[88] Other arguments by various permissive commentators may include the right to use force for humanitarian intervention, or the protection of nationals.
[89] Mary Ellen O'Connell, 'The Myth of Preemptive Self-Defence', (2002) Task Force on Terrorism, The American Society of International Law, <http://www.asil.org/taskforce/oconnell.pdf> (copy on file with author) 2, (n 10) at 16 January 2004.
[90] This was an incident in 1837 in which British troops destroyed the ship the Caroline that was moored on US territory at the time, killing a number of US nationals, in order to prevent alleged assistance to an insurrection which had been taking place in British-ruled Canada. The British initially claimed that they were acting in self-defence.
[91] Anthony Clark Arend, 'International Law and the Preemptive Use of Military Force' (2003) 26(2) Washington Quarterly89, 90-91.
[92] Harris, above n 5, 898. This requirement is sometimes subsumed under the necessity heading.
[93] Michael Schmitt, 'Preemptive Strategies in International Law' (2003) 24 Michigan Journal of International Law 513, 529.
[94] Grey, above n 3, 115.
[95] Nicaragua v United States of America, above n 81, 103 [194].
[96] Ibid [195].
[97] Simma, above n 79, 793; O'Connell, 'The Myth of Preemptive Self-Defence',above n 89, 5.
[98] See the dissenting opinion of Judge Schwebel in Nicaragua, who also considered that the statement that an armed attack was a specific requirement for rightful self-defence was obiter dictum: above n 95, 347 [72].
[99] See, eg. Rebecca Wallace, International Law: A Student Introduction (3rd ed, 1997) 252; Dixon and McCorquodale, above n 4, 573; Shaw, above n 7, 787.
[100] Grey, above n 3, 105.
[101] Nicaragua v United States of America, above n 81 94 [176].
[102] Dixon and McCorquodale, above n 4, 573.
[103] Brownlie, above n 7.
[104] Ibid 273; see similar points by Simma, above n 79, 793, 803.
[105] Ian Brownlie, 'International Law and the Use of Force by States Revisited' [2001] 21 The Australian Year Book of International Law21.
[106] Ibid 24, 26; H McCoubrey & N D White, International Law and Armed Conflict (1992) 89, agrees with Brownlie's interpretation.
[107] Brownlie, above n 7, 255; see also McCoubrey and White, above n 106, 87.
[108] Brownlie, above n 7, 255.
[109] Ibid 280; Dixon and McCorquodale, above n 4, 553, concur with this view.
[110] Grey, above n 3, 96-97.
[111] Nicaragua v United States of America, above n 81, 104 [195]. It is not clear if the Court was rejecting outright that the provision of weapons, logistical or other support could ever be an 'armed attack'. Judge Schwebel, giving a Dissenting Opinion in Nicaragua, rejected an interpretation of Article 51 that meant the right exists if, and only if, an armed attack occurs: 347 [173].
[112] Dinstein, above n 79, 183.
[113] Michael Bothe, 'Terrorism and the Legality of Preemptive Force' (2003) 14(2) European Journal of International Law 227, 228-229.
[114] Ibid.
[115] O'Connell, 'The Myth of Preemptive Self-Defence', above n 89, 8; Richard Bilder and Mary Ellen O'Connell, 'Review Essay: Releashing the Dogs of War' (2003) 97 American Journal of International Law 446, 452.
[116] Bothe, above n 113, 231.
[117] Yoram Dinstein calls this distinction 'interceptive' self-defence, where one State may defend against another which has committed itself to an armed attack in an ostensibly irrevocable way, and which he views as legitimate under the Charter: Dinstein, above n 79, 190.
[118] Arend, 'International Law and the Preemptive Use of Military Force', above n 91, 94-95.
[119] Grey, above n 3, 113, disputes that Israel argued for this right in the Six Day War. In a review of Grey's book Richard Bilder and Mary Ellen O'Connell agree that Israel's claim was based not on anticipatory self-defence but on self-defence against armed attacks: above n 115, 453.
[120] Arend, 'International Law and the Preemptive Use of Military Force', above n 91,96.
[121] Shaw, above n 7, 789; Wallace, above n 99, 254.
[122] Grey, above n 3, 112.
[123] Ibid 87.
[124] Ibid.
[125] Ibid 88.
[126] Ibid 107.
[127] Simma, above n 79, 806.
[128] Thomas Graham, Jr, 'Is International Law Relevant to Arms Control? National Self- Defence, International Law, and Weapons of Mass Destruction' (2003) 4 Chicago Journal of International Law 1, 4.
[129] United States of America Secretary of Defence Donald Rumsfeld, Annual Report to the President and Congress, 2002, available at <http://www.defenselink.mil/execsec/adr2002/index.htm> at 16 January 2004.
[130] Introduction, The National Security Strategy of the United States of America, available at <http://www.whitehouse.gov/nsc/nssintro.html> at 22 January 2004.
[131] Chapter V: Prevent our Enemies from Threatening Us, Our Allies, and Our Friends with Weapons of Mass Destruction, The National Security Strategy of the United States of America, available at <http://www.whitehouse.gov/nsc/nss5.html> at 22 January 2004.
[132] Ibid [paragraph breaks omitted].
[133] See Part II above.
[134] Patrick McLain, 'Settling the Score with Saddam: Resolution 1441 and Parallel Justifications for the Use of Force against Iraq' (2003) 13 Duke Journal of Comparative and International Law 233, 268.
[135] See Brownlie above, n 105 and the associated discussion in the text.
[136] Michael Glennon, 'The UN Security Council in a Unipolar World' (2003) 44 Virginia Journal of International Law Association 91, 95.
[137] W Michael Reisman, 'Editorial Comment: Assessing Claims to revise the Laws of War' (2003) 97 American Journal of International Law 82, 87.
[138] Dr. Condoleezza Rice Discusses President's National Security Strategy,available at <http://www.whitehouse.gov/news/releases/2002/10/20021001-6.html> 25 January 2004.
[139] See below. Although, to add confusion, commentators sometimes use the two names interchangeably.
[140] As did Rice above, a commonly mentioned example is the Cuban Missile Crisis of 1962. Richard Gardner gives interesting insight into this incident. He describes how he was brought in as a consultant to Abram Chayes, the State Department's legal adviser, at the time of the crisis to assist in developing a legal rationale for US actionthat aimed to prevent the transfer of Soviet missiles to Cuba. He notes that it was agreed between those involved that self-defence would not hold up as an argument, because if Soviet missiles in Cuba could justify an act of self-defence by the US, the same right would have to have been conceded to the Soviet Union in view of the presence of US missiles in Turkey, not to mention the movement of nuclear-armed submarines and bombers around the periphery of Soviet territory. Avoiding self-defence meant evading the opening of the'Pandora's box' of Article 51: Richard Gardner, 'Neither Bush nor the "jurisprudes"' (2003) 97 American Journal of International Law585, 587-588.
[141] John Yoo, 'International Law and the War in Iraq' (2003) 97 American Journal of International Law 563, 573, declares that the US has used anticipatory self-defence against Libya, Panama, Iraq (in 1993), Afghanistan, and the Sudan in the past two decades.
[142] The theory of preemption during the Cold War, sometimes called 'first strike', was counted by the doctrine of Mutually Assured Destruction (MAD), that if one nuclear state struck first, the opposing side's nuclear capacity ensured an equally destructive blow, resulting in escalation and the obliteration of both. See Paul Hemesath, 'Who's Got the Button? Nuclear War Powers Uncertainty in the Post-Cold War Era' (2000) 88 Georgetown Law Journal 2473, 2485.
[143] Reisman, above n 137, 87. His cites an example of the Clinton administration publicly stating this was a 'legitimate option'.
[144] Ibid 88.
[145] A Congressional Research Service report recently reviewed the historical record of the US' use of pre-emptive military force. It stated that the US had never taken preemptive military action before (where this was defined as action against another nation so as to prevent or mitigate a presumed military attack or use of force). Other inventions had occurred but were not motivated by the fact that those nations targeted were going to attack the US militarily: Richard Grimmett, 'Report for Congress: US Use of Preemptive Military Force' (2002) Congressional Report Service, available at <http://fpc.state.gov/documents/organization/13841.pdf> at 17 January 2004.
[146] Legal Adviser of the US Department of State.
[147] Assistant Legal Adviser for Political-Military Affairs of the US Department of State.
[148] William Taft and Todd Buchwald, 'Preemption, Iraq, and International Law' (2003) 97 American Journal of International Law557.
[149] Ibid 557.
[150] Ibid 558.
[151] Ibid 563.
[152] See above 6, 15.
[153] See O'Connell's perspective, n 34.
[154] Thomas Franck, 'What Happens Now? The UN after Iraq' (2003) 97 American Journal of International Law 607, 611; Richard Falk, 'What Future for the UN Charter System of War Prevention?' (2003) 97 American Journal of International Law 590, 598; McLain, above n 136, 278; Bothe, above n 113, 234.
[155] See Christopher Greenwood, "International Law and the Preemptive Use of Force: Afghanistan, al Qaeda and Iraq' (2003) 4 San Diego International Law Journal 7; Taft & Buchwald, above n 148.
[156] Abraham Sofaer, 'On the Necessity of Preemption' (2003) 14(2) European Journal of International Law 209, 214.
[157] Ibid 220; Yoo, above n 114, 572 158 Greenwood, above n 155, 36.
[159] SC Res 1368, UN Doc S/Res/1368 (2001). See Jack Beard (Associate Deputy General Counsel (International Affairs) for the US Department of Defence), 'Military Action against Terrorists under International Law: America's New War on Terror: The Case for Self-Defence Under International Law' (2003) 25 Harvard Journal of Law and Public Policy559, 565 who notes that this was the first time the Security Council had approved a resolution explicitly invoking and reaffirming the inherent right of individual and collective self-defence in response to a particular terrorist attack. Note that these Security Council resolutions made reference to the right of self-defence in a factual context where an actual armed attack had already occurred, suggesting that this is still an important aspect of the defence.
[160] SC Res 1373, UN Doc S/Res/1373 (2001). Acting under Chapter VII of the Charter, which makes its pronouncements mandatory on all Members, the Council decided that all States should take extensive measures to prevent terrorist activity or the support of terrorism in any form in their territories.
[161] McLain, above n 134, 273.
[162] See Beard, above n 159, 568-574.
[163] Bilder and O'Connell, above n 115, 451; Ruth Wedgwood, 'The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-Defence' (2003) 97 American Journal of International Law 576, 583; Mary Ellen O'Connell, 'Evidence of Terror' (2002) 7 Journal of Conflict and Security Law 19, 20. This controversy seems to centre in terms of state responsibility on the view by the US that no distinction should be made between terrorists and those who harbour them, and on the proportionality of overthrowing the government as a response.
[164] Beard, above n 159, 582-583. The issues surrounding terrorism and state responsibility require separate analysis from those related to self-defence in the context of the Iraqi invasion, because of the different factual circumstances, as well as the differing justifications and policy motivations provided by the US in each case.
[165] O'Connell, 'The Myth of Preemptive Self-Defence', above n 89, 11. In contrast, Bothe sees the action as justified on the basis of the definition of aggression adopted by the General Assembly adopted in 1974, and accepted in Nicaragua, that the sending of a group, by or on behalf of a State, who carry out acts of armed force against another State could be called a 'constructive armed attack': above n 113, 230.
[166] For example, the Non-Aligned Movement composed of 114 nations primarily from the developing world, representing 55% of the world's population and nearly two-thirds of the members of the UN, whose foreign ministers met on 22 February, 2003, and signed a declaration opposing use of force against Iraq. Glennon, above n 136, 96; 2/23/03 Washington Post A29.
[167] O'Connell, 'Evidence of Terror', above n 163, examines this evidence and concludes that the case for Operation Enduring Freedom was made out.
[168] Beard, above n 159, 582.
[169] SC Res 1390, UN Doc S/Res/1390 (2002).
[170] McLain, above n 134, 235-236.
[171] Mary Ellen O'Connell, 'Evidence of Terror' (2002) 7 Journal of Conflict and Security Law 19, 20.
[172] See above at n 36, discussing Colin Powell's presentation to the Security Council of 5 Feb 2003.
[173] The possible future of anticipatory self-defence in general will be commented on below.
[174] See especially Colonel Guy Roberts, ‘The Counterproliferation Self-Help Paradigm: A Legal Regime for Enforcing the Norm Prohibiting the Proliferation of Weapons of Mass Destruction' (1999) 27 Denver Journal of International Law and Policy 483, 487-494; other examples are Miriam Sapiro, 'Iraq: The Shifting Sands of Preemptive Self-Defence' (2003) 97 American Journal of International Law 599, 604; Christopher Clarke Posteraro, 'Intervention in Iraq: Towards a Doctrine of Anticipatory Counter-Terrorism, Counter-Proliferation Intervention' (2002) 75 Florida Journal of International Law 151, 185-186; Arend, 'International Law and the Preemptive Use of Military Force', above n 91, 98; Schmitt, above n 93, 533-534; Greenwood, above n 155, 16.
[175] Anthony Clark Arend, 'International Law and Rogue States: The Failure of the Charter Framework' (2002) 36 New England Law Review735, 736-740.
[176] Ibid 740.
[177] Ibid 735.
[178] Ibid. At 740-741, he notes that there are a number of different levels of support that a state could be providing to terrorists: using terrorists as proxies (state sponsored terrorism); providing financial and military assistance (state supported terrorism); or tolerating and otherwise harbouring terrorists (no support or sponsorship but knows of and fails to suppress).
[179] Ibid 742-743.
[180] Ibid 745, 747.
[181] Ibid 750.
[182] See Part II 'Background to conflict', 6.
[183] McLain, above n 134, 268.
[184] Bothe, above n 113, 237.
[185] Gardner, above n 152, 588; 'The Myth of Preemptive Self-Defence', above n 89, 19.
[186] Arend, 'International Law and the Preemptive Use of Military Force', above n 91, 98.
[187] In Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion)[1996] ICJ Rep 226, the mere possession of nuclear weapons was found not to be illegal: [48]. The ICJ was unable to reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake: [97]. Cited in Ann Fagan Ginger (ed), Nuclear Weapons are Illegal: The Historic Opinion of the World Court and How it will be Enforced (1998) 49, 71.
[188] Graham, above n 128, 10.
[189] McLain, above n 134, 235; Bothe, above n 113, 237, O'Connell, 'The Myth of Preemptive Self-Defence', above n 89, 19.
[190] Graham, above n 128, 10
[191] McLain, above n 134, 262.
[192] This phrase has been used to describe the US because it has amassed, more so than any other country in history, so much power - militarily, politically and culturally - so completely. See Ehlert, above n 21, 731.
[193] Falk, above n 154, 598.193 Falk, above n 154, 598.
[194] Ibid.
[195] Thomas Franck, 'What Happens Now? The United Nations after Iraq', above n 154, 610.
[196] Glennon, above n 136, 98; Arend takes a similar view, and believes that there is currently only a customary prohibition against pure territorial annexation, 'International Law and the Preemptive Use of Force', above n 91, 100-101, Arend,'International Law and Rogue States: The Failure of the Charter Framework', above n 174, 751.
[197] Glennon, above n 136, 100.
[198] Ibid 105.
[199] Ibid 111.
[200] Thomas Franck, 'The Use of Force in International Law' (2003) 11 Tulane Journal of International and Comparative Law 7, 16.
[201] Ibid 17.
[202] Franck, 'What Happens Now? The United Nations after Iraq' above n 154, 616.
[203] Franck, 'The Use of Force in International Law', above n 200, 19.
[204] Franck, 'What Happens Now? The United Nations after Iraq', above n 154, 619.
[205] Harold Hongju Koh, 'On American Exceptionalism' (2003) 55 Stanford Law Review 1479, 1524.
[206] Ibid 1526.
[207] Ibid 1526-1527.
[208] Another possibility has been made by Michael Reisman, who proposes that along with the Monroe, Brezhnev, Carter, and Reagan doctrines, preemption could become the new 'American doctrine': Reisman, above n 137, 90.
[209] Carsten Stahn, 'Terrorist Acts as "Armed Attack": The Right to Self-Defence, Article 51 of the UN Charter, and International Terrorism' (2003) 27 Fletcher Forum of World Affairs 35, 39; Falk, above n 154, 594.
[210] Sapiro, above n 173, 601-602.
[211] Ibid 604. She believes the Iraqi circumstances did not meet this test: 607.
[212] Ibid 606.
[213] See above 33, Sofaer and Yoo's views.
[214] Outside of the realm of self-defence, another answer to the problem of weapons of mass destruction may be to promote greater international commitment and adherence to non- proliferation agreements.
[215] Karl Meessen, 'Unilaterial Recourse to Military Force against Terrorist Attacks' (2003) 28 Yale Journal of International Law 341, 353.
[216] Ibid.
[217] Falk, above n 154, 594.
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