Preemptive self-defense in an age of weapons of mass destruction: operation Iraqi freedom.

• Author: Pierson, Charles

Facing clear evidence of peril, we cannot wait for the final proof, the smoking gun that could come in the form of a mushroom cloud.

President George W. Bush (1)

1. THE FIGHT OVER PREEMPTION

   With the promulgation of the Bush Doctrine, President George W. Bush announced a U.S. policy of preemptive action against terrorist states. (2) President Bush had previously identified Iraq, together with Iran and North Korea, as part of an "axis of evil" bent on the acquisition of weapons of mass destruction (WMD). (3) The Bush Administration asserted that the danger of WMD in the hands of Saddam Hussein was so great that it justified a preemptive attack on Iraq before these weapons could be developed and used. (4)

   The Administration made the case against Iraq in speeches by Vice President Dick Cheney on August 26, 2002, (5) by Secretary of State Colin Powell before the U.N. Security Council on February 5, 2003 (6), and in addresses by President Bush before the General Assembly of the United Nations on September 12, 2002 (7) and on U.S. television on October 7, 2002. (8) Detailed charges against Iraq also are set out in the joint resolution for the use of military force drafted by the Administration and adopted by Congress. (9) Preemption supplants the containment strategy the United States had pursued against Iraq in the decade following the 1991 Persian Gulf War. (10)

   "Preemption," "preemptive self-defense," and "anticipatory self-defense" traditionally refer to a state's fight to strike first in self-defense when faced with imminent attack--to beat an adversary to the punch. (11) Preemption remains relevant in the aftermath of Operation Iraqi Freedom as the Bush Administration contemplates preemptive military action to disarm Iran, Syria, North Korea, and Cuba. This article examines whether anticipatory self defense is permitted under international law and, if so, whether the invasion of Iraq was a legitimate exercise of anticipatory self-defense.

2. DID IRAQ'S MATERIAL BREACH OF THE PERSIAN GULF WAR CEASE-FIRE PROVIDE AUTHORIZATION FOR WAR?

   Before discussing the legality of anticipatory self-defense, this section looks briefly at the Administration's argument that Operation Iraqi Freedom was legal due to Iraq's material breach of the 1991 Persian Gulf War cease-fire agreement. (12) Iraq's invasion of Kuwait on August 2, 1990 triggered the fight of individual and collective self-defense under Article 51 of the United Nations Charter. (13) Shortly thereafter, in Resolution 678, the Security Council invoked Chapter VII of the U.N. Charter and authorized Member States to "use all necessary means to uphold and implement Res. 660" and "all subsequent relevant resolutions." (14) One of those "subsequent relevant resolutions" was Resolution 687, the Gulf War ceasefire, which required Iraq to disarm and submit to weapons inspections. (15) Iraq's material breach of the ceasefire revived Resolution 678's authorization to use force. (16) This conclusion proceeds from a number of rationales. One is to treat Security Council Resolution 687 as analogous to a treaty. (17) Under the law of treaties, material breach of a treaty allows a "specially affected" party to suspend operation of the treaty. (18) Another rationale is that the cease-fire was expressly conditioned on Iraq's disarmament and compliance with inspections. (19) The Security Council found Iraq in material breach of the cease-fire on numerous occasions. (20)

   The first President Bush relied upon the material breach argument to establish "no-fly" zones over northern and southern Iraq. (21) When the United States, Britain, and France bombed Iraq in January 1993 in order to enforce Iraqi compliance with weapons inspections they did not seek specific authorization from the Security Council. (22) Nevertheless, U.N. Secretary General Boutros Boutros-Ghali declared that the strikes were pursuant to Resolution 678. (23) President Clinton used the material breach argument to justify the December 1998 Operation Desert Fox bombing campaign against Iraq. (24)

   Security Council Resolution 1441 reinforces the conclusion that the United States had authorization for the war on Iraq. Security Council Resolution 1441, passed unanimously on November 8, 2002, gave Iraq a "final opportunity" to disarm. (25) To that end Resolution 1441 provided for a resumption of weapon inspections in Iraq interrupted since UNMOVIC inspectors left Iraq in 1998. (26) The resolution warned that Iraq's failure to submit to renewed inspections would lead to "serious consequences," understood to mean war. (27) Following adoption of Resolution 1441 U.S. Ambassador to the United Nations John Negroponte indicated that the United States did not consider Resolution 1441 to be a bar to unilateral U.S. action should the Security Council fail to act. (28)

3. SELF DEFENSE PRIOR TO THE UNITED NATIONS CHARTER

   The right of self-defense is set out in customary international law in the so-called Caroline doctrine. In 1837 a portion of Canada was in rebellion against the British Crown. The vessel Caroline was owned by a group of Americans who in 1837 were using her to ferry men and supplies to rebels on an island on the Canadian side of the Niagara River. (29) To cut off assistance to the rebels, British troops crossed into U.S. territory on December 29, 1837, loosed the Caroline from her moorings on the New York side of the river, set fire to the ship, and sent her over the Falls. (30) The resulting legal issue was whether the British had acted legitimately in self-defense. In an exchange of diplomatic correspondence with Lord Ashburton of Great Britain, Secretary of State Daniel Webster set forth the conditions of necessity and proportionality which came to be accepted as the customary law requirements for the exercise of self defense (the "Caroline doctrine"). (31) Necessity requires imminent "overwhelming" danger and exhaustion, unavailability, or futility of peaceful means to avert attack. The force employed must be proportional to the danger sought to be averted. (32) The British accepted Webster's criteria and agreed that the British attack had failed to meet them. Under Caroline, an actual armed attack was not required as the precondition for the use of force in self-defense. (33) Thus, the Caroline criteria permit both reactive and anticipatory self-defense so long as necessity and proportionality are observed. (34)

4. DID ARTICLE 51's DRAFTERS INTEND TO ELIMINATE THE CUSTOMARY RIGHT OF ANTICIPATORY SELF-DEFENSE? LESSONS OF THE TRAVAUX PREPARATOIRES

   Article 51, the United Nations Charter's provision on self-defense, does not include the phrase "anticipatory self-defense." Article 51 provides:

   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 necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. (35) The question of whether the customary law doctrine of anticipatory self-defense survives under the United Nations Charter is addressed by two schools. (36) "Restrictionists" argue that Article 51 eliminates the customary right of anticipatory self defense set out in the Caroline doctrine and limits self-defense to the case of an actual armed attack. Restrictionists maintain that the intent of Article 51's drafters was to raise the standard of necessity required up until 1945. (37) Henceforth, the necessity to use force in self-defense would exist only "if an armed attack occurs." "Counter-restrictionists" believe that the customary right of anticipatory self-defense survives under the Charter. (38) The customary right allowed force to be used in advance of an armed attack so long as an attack was imminent. (39) The United States follows the counter-restrictionist position. (40)

   Each school focuses on a different phrase in Article 51. Restrictionists emphasize the phrase "if an armed attack occurs." Counter-restrictionists focus on Article 51's opening sentence: "Nothing in the present Charter shall impair the inherent right of individual or collective self defense...." (41) Counterrestrictionists take "inherent right" to refer to the right of self-defense as it existed under customary law, including the right of anticipatory self-defense. (42) Counterrestrictionists insist that the language "if an armed attack occurs" must not be misread as "if and only if." (43) The phrase merely emphasizes what, in 1945, was considered to be the paramount, but not the sole, form of aggression without limiting self-defense to an "armed attack." (44) Significantly, the French text of Article 51 refers not to the narrow concept of attaque armee ("armed attack") but to the broad concept of aggression armee ("armed aggression"). (45) Inasmuch as international law scholars have not been able to agree on a definition of aggression in fifty years, it would be odd if Article 51 identified aggression with only one narrow contingency, an "armed attack," and restricted self-defense to that circumstance alone. (46) The International Court of Justice has not spoken to the legality of anticipatory self-defense. In the Nicaragua case the Court reserved judgment on whether an imminent threat of armed attack would pass Article 51 muster. (47)

   Since the text, by itself, will not reveal whether the Charter permits anticipatory self-defense, reference must be had to Article 51's drafting history. (48) Counter-restrictionists contend that the Article 51 travaux preparatoires do not support a conclusion that anticipatory...