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Preemption, Iraq, and International Law

  • William H. Taft (a1) and Todd F. Buchwald (a1)

Preemption comes in many forms and what we think of it depends on the circumstances. One state may not strike another merely because the second might someday develop an ability and desire to attack it. Yet few would criticize a strike in the midst of an ongoing war against a second state’s program to develop new types of weapons. Between these two examples lie countless fact patterns.

In the end, each use offeree must find legitimacy in the facts and circumstances that the state believes have made it necessary. Each should be judged not on abstract concepts, but on the particular events that gave rise to it. While nations must not use preemption as a pretext for aggression, to be for or against preemption in the abstract is a mistake. The use of force preemptively is sometimes lawful and sometimes not.

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1 The legal basis for the doctrine of preemption is set out in President Bush’s National Security Strategy:

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 evidence of an imminent threat—most often a visible mobilization of armies, navies, and air forces preparing to attack.

The National Security Strategy of the United States of America 15 (Sept 17, 2002), available at <>. The notion of preemption is inherent in the right of self-defense, recognizing the need to adapt the concept of imminence to the capabilities and objectives of today’s adversaries. The use of force preemptively in self-defense is the right of each state and does not require Security Council action. In calculating whether the test of imminence has been met, it would be irresponsible to ignore that these adversaries “rely on acts of terror and, potentially, the use of weapons of mass destruction—weapons that can be easily concealed, delivered covertly, and used without warning.” Id. (emphasis added). In the case of Iraq, President Bush made clear that the United States could always proceed in the exercise of its inherent right of self-defense recognized in Article 51 of the United Nations Charter. See Report in Connection with Presidential Determination Under Public Law 107–243, reprinted in 149 Cong. Rec. H1957, H1958 (daily ed. Mar. 19, 2003) (on resolution authorizing use of force against Iraq).

2 SC Res. 660 (Aug. 2, 1990), 29 ILM 1325 (1990).

3 Among other things, Resolution 661 (Aug. 6,1990), 29 ILM 1326 (1990), imposed broad sanctions on Iraq; Resolution 662 (Aug. 9,1990), 29 ILM 1327, decided that Iraq’s annexation of Kuwait was “null and void” and demanded that Iraq rescind its actions purporting to annex it; Resolution 664 (Aug. 18,1990), 29 ILM 1328, reaffirmed those decisions, demanded that Iraq rescind its order that foreign diplomatic and consular missions in Kuwait be closed, facilitate departure and consular access for nationals of third states, and take no action to jeopardize their safety, security, or health; Resolution 665 (Aug. 25,1990), 29 ILM 1329, called upon member states to use such measures commensurate to the specific circumstances as may be necessary to ensure implementation of trade restrictions; Resolution 667 (Sept. 16,1990), 29 ILM 1332, demanded that Iraq release foreign nationals that it had abducted; Resolution 670 (Sept. 25,1990), 29 ILM 1334, imposed restrictions on air traffic; Resolution 674 (Oct. 29, 1990), 29 ILM 1561, invited states to collate and make available to the Council information on grave breaches committed by Iraq; and Resolution 677 (Nov. 28,1990), 29 ILM 1564, condemned Iraqi attempts to alter Kuwait’s demographic composition and destroy the civil records of the legitimate government of Kuwait.

4 See Letter Dated 9 August 1990 from the Permanent Representative of the United States of America to the United Nations, UN Doc. S/21492 (1990) (reporting that United States “has deployed military forces to the Persian Gulf region . . . . in exercise of the inherent right of individual and collective self-defence . . . in response to developments and requests from Governments in the region”); Letter Dated 16 August 1990 from the Charge d’Affaires a.i. of the United States Mission, to the United Nations, UN Doc. S/21537 (1990) (reporting that U.S. forces “at the request of the Government of Kuwait, have joined the Government of Kuwait in taking actions to intercept vessels seeking to engage in trade with Iraq or Kuwait in violation of the mandatory sanctions imposed in Security Council resolution 661”).

5 SC Res. 678 (Nov. 29,1990), 29 ILM 1565 (1990).

6 SC Res. 687 (Apr. 3, 1991), 30 ILM 846 (1991).

7 See, e.g., SC Res. 707 (Aug. 15, 1991). The use of the term “cease-fire” itself carries the connotation that one party is not bound to observe it in the face of violations by the other. Even a more formal armistice is subject to the same qualification, as specifically reflected in Article 40 of the 1907 Hague Regulations Respecting the Laws and Customs of War on Land, annexed to Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907,36 Stat. 2277, 1 Bevans 631, which states that” [a]ny serious violation of the armistice by one of the parties gives the other party the right of denouncing it.”

8 See White House Background Paper: A Decade of Deception and Defiance (Sept. 12,2002), available at <>, <>.

9 Matheson, Michael J., Remarks, in Legal Authority for the Possible Use of Force Against Iraq , 92 ASIL Proc. 141 (1998).

10 Notwithstanding its subsequent challenge to the legality of Operation Iraqi Freedom in 2003, France not only supported the rationale, but authorized its planes to engage as active participants in the 1993 strikes. Apple, R. W., U.S. and Allied Planes Hit Iraq, Bombing Missile Sites in South in Reply to Hussein’s Defiance, N.Y. Times, Jan. 14, 1993, at Al .

11 Transcript of Press Conference by Secretary-General, Boutros Boutros-Ghali, Following Diplomatic Press Club Luncheon in Paris on 14January, UN Doc. SG/SM/4902/Rev.l, at 1 (1993).

12 Among other things, in March 1998, Resolution 1154 (Mar. 2, 1998), 37 ILM 503 (1998), had warned Iraq that continued violations of its disarmament obligations “would have severest consequences”; and in November of that year, Resolution 1205 (Nov. 5, 1998), 38 ILM 252 (1999), characterized Iraq’s failure to cooperate with inspectors as a “flagrant violation.”

13 Matheson, supra note 9, at 141. The United States noted at the time that previous Council findings removed any doubt that Iraq’s actions constituted material breaches. For example, the chargé d’affaires of the U.S. Mission to the United Nations stated:

Following the liberation of Kuwait from Iraqi occupation in 1991, the Security Council, in its resolution 687 (1991) of 3 April 1991, mandated a ceasefire; but it also imposed a number of essential conditions on Iraq, including the destruction of Iraqi weapons of mass destruction and acceptance by Iraq of United Nations inspections.

. . . .

. . . Iraq has repeatedly taken actions which constitute flagrant, material breaches of these provisions. On a number of occasions, the Council has affirmed that similar Iraqi actions constituted such breaches, as well as a threat to international peace and security. In our view, the Council need not state these conclusions on each occasion.

Letter Dated 16 December 1998 from the Chargé d’Affaires a.i. of the United States Mission, to the United Nations, UN Doc. S/1998/1181, at 1–2 (emphasis added).

14 SC Res. 1441 (Nov. 8, 2002), 42 ILM 250 (2003).

15 See, e.g., Preston, Julia, Threats and Responses: Diplomacy; U.S. Raises Pressure on Russia and France for Iraq Resolution, N.Y. Times, Oct. 26,2002, at A8 (French officials call phrase a “hidden trigger” that could permit United States “to declare war by itself”); Weiner, Tim, Threats and Responses: The U.N. Debate, N.Y. Times, Oct. 28, 2002, at A11 (French-circulated text omits “two crucial words from the American proposal, which would find Iraq in ‘material breach’ of a number of past Security Council resolutions” and which France considers would be a “tripwire”).

16 Among other things, the resolution, supra note 14, in its preamble, deplored

  • “that Iraq has not provided an accurate, full, final, and complete disclosure, as required by resolution 687 (1991), of all aspects of its [WMD programs] and of all holdings of such weapons”;

  • “that Iraq repeatedly obstructed the immediate, unconditional, and unrestricted access to sites designated by the United Nations Special Commission (UNSCOM) and the International Atomic Energy Agency (IAEA), failed to cooperate fully and unconditionally with UNSCOM and IAEA weapons inspectors, as required by resolution 687 (1991), and ultimately ceased all cooperation with UNSCOM and the IAEA in 1998”; and

  • “the absence, since December 1998, in Iraq of international monitoring, inspection, and verification, as required by relevant resolutions, of weapons of mass destruction and ballistic missiles, in spite of the Council’s repeated demands that Iraq provide immediate, unconditional, and unrestricted access to the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC), . . . as the successor organization to UNSCOM, and the IAEA.”

17 See Report in Connection with Presidential Determination Under Public Law 107–243, supra note 1; see also note 21 infra.

18 UN Doc. S/PV.4644, at 3 (2002) (remarks of Ambassador Negroponte); see also Remarks on the Passage of a United Nations Security Council Resolution on Iraq, 38 Weekly Comp. Pres. Doc. 2009, 2010 (Nov. 11, 2002) (“The United States has agreed to discuss any material breach with the Security Council, but without jeopardizing our freedom of action . . .”).

19 SC Res. 1441, supra note 14, op. para. 12 (emphasis added).

20 The conclusion that any state could submit a report was in keeping with the underlying purposes of the Charter, which, under Article 35, provides: “Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34” (which refers to “any situation which might lead to international friction or give rise to a dispute”) “to the attention of the Security Council “ Nothing in Resolution 1441 deprived members of this right, and it is questionable whether it would be appropriate for any resolution by the Council to do so.

21 See, e.g., UN Docs. S/PV.4701 (2003), S/PV.4714 (2003). Although reports from the weapons inspectors were not required for the Council to convene and consider the situation under paragraph 12, UNMOVIC Director Blix did report Iraq’s failure to comply and cooperate. See the following reports by Hans Blix to the Security Council: UN Doc. S/PV.4692, at 3 (2003) (“Iraq appears not to have come to a genuine acceptance—not even today—of the disarmament that was demanded of it and that it needs to carry out to win the confidence of the world and to live in peace”); id. at 6 (noting that Iraq’s declaration included a document from which it had excised a table showing the import of bacterial growth media, and concluding that “absence of this table would appear to be deliberate, as the pages of the resubmitted document were renumbered”); UN Doc. S/PV.4714, at 5 (2003) (Iraqi initiatives in weeks prior to Operation Iraqi Freedom “cannot be said to constitute immediate cooperation, nor do they necessarily cover all areas of relevance”).

22 Goldsmith, Lord, Legal Basis for Use of Force Against Iraq (Mar. 17, 2003) (statement by UK attorney general in answer to a parliamentary question), available at <>.

23 For its part, the United States made clear that it would have preferred the Council to adopt a second resolution. Its view was that such a resolution would have operated as an important demonstration of resolve by the international community to increase the pressure on Iraq and, ultimately, to reduce the likelihood that resort to force would be necessary. While the Council’s inability to come together for such a resolution may have misled Iraq into believing it could wait out the process in New York, the absence of Council action in no way diminished the effect of what the Council had previously authorized.

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American Journal of International Law
  • ISSN: 0002-9300
  • EISSN: 2161-7953
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