The Invasion of Iraq as the Case Against Preemtive Self-Defense

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Final Essay, University College London
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  The Invasion Of Iraq As The Case Against Preemtive Self-Defense By: Evan Kalikow  One of the most highly contested issues in the current international affairs landscapeis the issue of preemptive self-defense. Since September 11, 2001, and in the wake of UnitedStates intervention in Afghanistan and Iraq, preemptive self-defense has been the subject of debate and discussion amongst scholars, policy makers, and political actors. The primaryfocus of this debate has regarded both the legality and the justifiability of preemptive self-defense. In this essay, I will argue that preemptive self-defense is a policy that cannot be justified. I will first offer a definition of preemptive self-defense as it relates to contemporaryforeign affairs. After establishing the definition of preemptive self-defense, I will examine thetactic in the context of international law and discuss why the ambiguities of the law make itan untenable policy. Finally, I will establish the moral, practical, and pragmatic limitations of  preemptive self-defense through the prism of a morally just war, as defined by David Luban.Each part of my argument will draw heavily from the case of the invasion of Iraq by theUnited States in 2003, a prolific case that highlights many of the problems of preemptive self-defense.In order to proceed with this argument, it is important to define what exactly preemptive self-defense entails. Preemptive or anticipatory self-defense can be seen as aconflict in which a state uses force on a party based on the possibility that the aforementionedother party may strike them first. This definition is supported by the “Caroline test”, namedafter the Caroline incident in 1837, in which British forces attacked an American ship (theCaroline) on the basis of preemptive self-defense. In response, then-United States Secretaryof State Daniel Webster urged the British to justify their claim of self-defense, showing that itwas “instant, overwhelming, leaving no choice of means, and no moment for deliberation”(qtd. in Tait: 2005, 111). Thus, the qualities of necessity and urgency are fundamental aspectsof preemptive self-defense.  This definition of preemptive self-defense has broadened in recent years; mostnotably (and most relevant for this analysis), the United States’ National Security Strategyreleased in September 2002 offers a clear support for the policy:“The United States has long maintained the option of preemptive actions to counter asufficient threat to our national security. The greater the threat, the greater the risk of inaction—and the more compelling the case for taking anticipatory action to defendourselves, 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 preemptively” ( The    National Security Strategy of the United States of  America , 2002: 15).As was the case in the Caroline test, this definition of preemptive self-defense emphasizes both the necessity of military action and the urgency of the threat. The most strikingdifference between these two definitions, however, comes from the latter’s insistence that theenemy’s attack does not need to be specific in order for preemptive self-defense to be justified. Such a distinction significantly broadened the scope of preemptive self-defense andallowed the United States to justify the invasion of Iraq six months after the publication of the National Security Strategy.With the key features of preemptive self-defense established and defined, the issuecan now be examined from the standpoint of international law. Generally speaking, theCharter of the United Nations does not permit states to engage in “the threat or use of force”,which stands as a condemnation of armed conflict (United Nations, 1945: Article 2(4)).However, Article 51 of the United Nations Charter offers an exception to this law. Article 51,in part, states that “ Nothing in the present Charter shall impair the inherent right of individualor collective self-defense if an armed attack occurs against a Member of the United Nations”(United Nations, 1945: Article 51).   Based on these two United Nations articles, the law isclear—the use or threat of force is not permitted, unless in the case of self-defense.Although the law is well defined in terms of self-defense in response to an armedattack, ambiguities remain when applying the law of the UN Charter to preemptive self-  defense. Thus, the issue is most likely to be argued not on absolute terms but on a case-by-case basis. Proponents of anticipatory conflict in the context of the United States invasion of Iraq in 2003 argue, firstly, that the United States’ response to the September 11 attacks was protected by international law. That argument is noncontroversial and straightforward, as, inthe weeks following the September 11 attacks, the UN Security Council strongly condemnedthem; moreover, the United States received statements of support from NATO, states party tothe Rio Treaty, and allies in the Pacific and the EU (Beard, 2002: 565-569). The connection between the United States’ response to September 11 and Article 51 of the UN Charter istherefore both clear and present.The argument in favor of the legality of preemptive self-defense in the case of Iraq builds upon that justification. Anticipatory conflict advocates maintain that the actions of theUnited States and its allies in the 2003 invasion of Iraq align with the letter and spirit of Article 51. In a 2005 article justifying the invasion of Iraq based on international law, AdamTait argued that “Because Iraq posed a possibly imminent threat to the collective security of the world, and because the definition of imminence has changed in a post-Sept. 11 world, thecoalition effort to remove Saddam Hussein from power was an appropriate response to theIraqi threat” (Tait, 2005: 97). In the wake of September 11, threats have become moredifficult to anticipate and imminence more difficult to gauge. Because of this, and becausethe regime in Iraq had indicated that an international threat may be forthcoming through notcooperating with UN Security Council resolutions relating to its weapons programs, proponents of US preemptive self-defense argue that the invasion of Iraq was both necessaryand legal under international law (Taft and Buchwald, 2003: 557).Many of the arguments regarding the legality of preemptive self-defense purported byauthors such as Tait seem convincing; however, analyzing the law in this fashion is problematic. By the pro-anticipatory self-defense case’s logic, any state that wishes to engage
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