Against the backdrop of two world wars, one of the overriding objectives in creating the United Nations in 1945 was, as outlined in the preamble to the UN charter, to 'save succeeding generations from the scourge of war.' To that end, article 2(4) provides a general prohibition of the threat or use of armed force against other states. An exception to this prohibition is provided only in article 51: pursuant to their 'inherent right of individual or collective self-defence,' states may use force to respond to an 'armed attack.' Arguably, in limited circumstances involving imminent threats, the right to self-defence also encompasses anticipatory action. In all other cases of threats to international peace and security, resort to force must be collective. That means that, outside the ambit of individual states' rights to self-defence, the use of force must be authorized by the United Nations Security Council.
In September 2002, the government of the United States published the much-quoted 2002 National Security Strategy, which promotes the adaptation of the rules on the use of force to permit pre-emptive strikes against 'emerging threats' posed by 'rogue states' with weapons of mass destruction. (1) That same month, President George W. Bush took his case for military action against Iraq to the United Nations. Since then, international law has enjoyed unusual popularity as a topic of discussion and concern. Politicians, pundits, and the proverbial people on the street have debated the rules of self-defence and the merits of a doctrine of pre-emptive strike, discussed the 'material breach' of UN Security Council resolutions, or opined on the need for additional resolutions explicitly authorizing the use of force against Iraq. The war in Iraq has generated many strongly held views and much heated rhetoric. This essay aims to look beyond the rhetoric to shed some light on the legality of the Iraq campaign. It provides a review of the three potential legal justifications for the use of force and explains why none of them ultimately supports the US-British intervention.
First, given the us rhetoric regarding the threat posed by Iraq, one might think that self-defence or pre-emptive self-defence was one of the justifications advanced for the intervention. Yet, while the us government may have deployed the language of self-defence at a political level, it was not invoked for purposes of legal justification. It is worth taking a closer look at this fact.
In situations of self-defence, states can act unilaterally. They must simply notify the Security Council that they are acting in self-defence. For example, in the case of military action in Afghanistan in 2001, the us reported to the Council that it had 'initiated actions in the exercise of its inherent right of individual and collective self--defense following armed attacks that were carried out ... on September 11,2001.' (2) Given the political differences over intervention in Iraq, a self-defence argument would have had the advantage, from a us standpoint, that action could have been taken without Security Council approval. The fact that the us did not invoke self-defence, then, speaks for itself. A case of self-defence simply could not be made. Iraq had not attacked the US, and an attack by Iraq (or attributable to Iraq) was not imminent.
What is perhaps most noteworthy is that the us government refrained not only from making a self-defence argument, but also from relying on the pre-emptive strike doctrine promoted in its National Security Strategy. This doctrine has raised concerns because it would leave virtually no standard capable of providing normative guidance or constraining unilateral assessments. In the 1962 Cuban Missile crisis, the United States refrained from invoking pre-emptive self-defence for this very reason. (3) In 2003, one might have expected the Bush administration to make Iraq, a 'rogue state' alleged to have weapons of mass destruction and ties to global terrorism, the test case for the pre-emptive strike doctrine. It did not. In fact, the State Department's legal adviser took pains to bring pre-emption within the confines of the 'traditional framework,' stressing that 'a preemptive use of proportional force is justified only out of necessity.' He added that 'necessity includes both a credible, imminent threat and the exhaustion of peaceful remedies.' Indeed: 'While the definition of imminent must recognize the threat posed by weapons of mass destruction...