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The Notion of Preemptive War

In the same way it certainly did not mean that states perceiving any threat-as rightly pointed out by Karl Zemanek-might lawfully carry out a general preemptive war against states possessing WMD or supporting or harbouring terrorist organizations. In addition to Zemanek’s point of view, I would like to draw attention to the first official formulation of the-allegedly old-norm existing in international law. According to the National Security Strategy of the US:

For centuries, international law recognized 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. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of imminent threat-most often a visible mobilization of armies, navies, and air forces preparing an attack. We must develop the concept of imminent threat to the capabilities and objectives of to day’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means… Instead, they rely on act of terror and, potentially, the use of weapons of mass destruction-weapons that can easily be concealed, delivered covertly, and used without warning…

To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively… [W]e will not hesitate to act alone if necessary, to exercise the right to self-defense by acting preemptively against such terrorists, to prevent them from doing harm against our people and our country.

It was probably written by an undergraduate student of law. International law did not recognize “for centuries” the right to preemptive strikes, given that, until the end of World War I, it did not even limit the use of armed force. Thus, the question of lawfulness did not arise. Any state, on any pretext, had the right to launch a war against any other state. The total prohibition of war was provided for the first time by the 1928 Kellog-Briand Pact. The pact made no mention whatsoever of the legitimacy of preemptive strikes, but only stated that the contracting parties “renounce [war] for the solution of international controversies and renounce it as an instrument of national policy in their relations with each other”. The UN Charter prohibits any kind of “threat or use of force”, regardless of its purpose. While the Charter recognizes the “inherent right” of self-defence, it makes no reference to the right of any state acting in self-defence to preempt an attack. Finally, in terms of the Charter, the UNSC has the exclusive right to determine whether or not the situation in a given state constitutes a threat to international peace and security, as well as to authorise armed sanctions. Thus, the Bush administration had no right to invoke the inherent right of self-defence with regard to the invasion of Iraq. Interestingly enough, the US referred to its right of self-defence in general terms only during the days immediately preceding the war and did not mention the concept of preemptive self-defence. Oddly enough, Great Britain never invoked this argument. Instead, an official British source referred to pervious UNSC resolutions to justify the Iraq war. The British Attorney-General said some days before the invasion that:

The legal basis for any military action against Iraq would be the authorisation by the Security Council, in its resolution 678 (1990), which has given the right to Member States to use all necessary means to restore international peace and security in the area. That authorisation was suspended but not terminated by Security Council resolution 687 (1991), and revived by resolution 1441 (2002)..The United Nations Charter gives the Security Council the power to authorise States to take such military action as may be necessary to maintain or restore international peace and security… In the case of Iraq, the Security Council took such a step following the Iraqi invasion of Kuwait. SC resolution 678 authorised “Member States co-operating with the Government of Kuwait to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area.”… Resolution 687 did not repeal the authorisation to use force in paragraph 2 of resolution 678. On the contrary, it confirmed that resolution 678 remained in force. The authorisation was suspended for so long as Iraq complied with the conditions of the ceasefire.

However, Resolution 678 (1990) provided for the restoration of peace and security in the area and referred to resolution 660 (1990) which condemned “the Iraqi invasion of Kuwait” and demanded that “Iraq withdraw immediately and unconditionally all its forces to the positions in which they [were] located on 1 August 1990”. Contrary to the statement by the Attorney General, the authorization to use force against Iraq was neither “suspended” nor “terminated” by resolution 687. The UNSC simply welcomed “the restoration to Kuwait of its sovereignty, independence, and territorial integrity and the return of its legitimate government.” In other words, the UNSC said that the job was done by the American-led coalition forces. Iraq withdrew its army from Kuwait and Kuwaiti sovereignty was restored. The Iraqi government accepted the provisions of resolution 687 and later formally recognized the independence of Kuwait. Consequently, the UN authorization to use force against Kuwait could have been invoked again only if Iraq would have started another aggression against Kuwait. The conditions of the ceasefire, laid out in resolution 687, may well have been violated by Iraq. In this case the UNSC should have drawn up a new resolution after discussing the matter. This resolution could have authorized the use of force by member states in case of aggression. However, no resolution was ever created. Otherwise, the question of a “second resolution” would not have been discussed by the UNSC members in the spring of 1993.

In fact, whatever legal explanation of the invasion was given by the two govern­ments, even the casus belli was missing, since no WMDs were found on the territory of Iraq and-apart from providing safe heaven for some retired terrorists-Bagdhad did not support any terrorist organization.

More information please go to Security Council [http://law.oxy.co/un-security-council-reform-and-global-security-939420/]

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