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 landscape is the issue of preemptive self-defense. Since September 11, 2001, and in the wake of United States intervention in Afghanistan and Iraq, preemptive self-defense has been the subject of debate and discussion amongst scholars, policy makers, and political actors. The primary focus of this debate has regarded both the legality and the justifiability of preemptive selfdefense. 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 contemporary foreign affairs. After establishing the definition of preemptive self-defense, I will examine the tactic in the context of international law and discuss why the ambiguities of the law make it an 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 the United States in 2003, a prolific case that highlights many of the problems of preemptive selfdefense. 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 a conflict in which a state uses force on a party based on the possibility that the aforementioned other party may strike them first. This definition is supported by the Caroline test, named after the Caroline incident in 1837, in which British forces attacked an American ship (the Caroline) on the basis of preemptive self-defense. In response, then-United States Secretary of State Daniel Webster urged the British to justify their claim of self-defense, showing that it was 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 aspects of preemptive self-defense.

This definition of preemptive self-defense has broadened in recent years; most notably (and most relevant for this analysis), the United States National Security Strategy released in September 2002 offers a clear support for the policy: The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater the risk of inactionand the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemys 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 striking difference between these two definitions, however, comes from the latters insistence that the enemys 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 and allowed 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 issue can now be examined from the standpoint of international law. Generally speaking, the Charter 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 individual or 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 is clearthe 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 armed attack, 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-bycase 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, in the weeks following the September 11 attacks, the UN Security Council strongly condemned them; moreover, the United States received statements of support from NATO, states party to the 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 is therefore 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 the United 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, Adam Tait 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, the coalition effort to remove Saddam Hussein from power was an appropriate response to the Iraqi threat (Tait, 2005: 97). In the wake of September 11, threats have become more difficult to anticipate and imminence more difficult to gauge. Because of this, and because the regime in Iraq had indicated that an international threat may be forthcoming through not cooperating with UN Security Council resolutions relating to its weapons programs, proponents of US preemptive self-defense argue that the invasion of Iraq was both necessary and legal under international law (Taft and Buchwald, 2003: 557). Many of the arguments regarding the legality of preemptive self-defense purported by authors such as Tait seem convincing; however, analyzing the law in this fashion is problematic. By the pro-anticipatory self-defense cases logic, any state that wishes to engage

in conflict with another state need only prove that the state in question has been uncooperative with the United Nations and has the capacity to launch an attack. To allow preemptive self-defense to be legal under Article 51 would make the definition of selfdefense so broad as to render the articles of the UN Charter condemning the use of force meaningless. As the United Nations is an organization that promotes peace, and because Article 51 is the exception rather than the rule of interstate relations, preemptive self-defense cannot be justified in the spirit of the law. As for the letter of the law, a strict reading and interpretation of Article 51 does not support preemptive self-defense. While Article 2(4) of the UN Charter prohibits the threat or use of force (United Nations, 1945: Article 2(4)), Article 51 only applies in the instance of an armed attack (United Nations, 1945: Article 51). This, according to scholars such as Michael Bothe, means that, in order for a state to use Article 51 as legal justification for selfdefense, it must have had an actual attack levied upon itthe threat or potential of such an attack would not suffice (Bothe, 2003: 228-229). Furthermore, Article 2(4) is widely encompassing compared to Article 51, which was written (and is worded) as an explicit exception rather than an inherent right (OConnell 2002: 4). Interpreting the law as it was written, preemptive self-defense cannot be justified in the absence of an armed attack. Despite the clarity of the law, there are valid criticisms that can be made about Article 51 and the UN Charter. Perhaps the most convincing argument is that the Charter of the UN is inconsistently enforced and inadequate with handling the security threats of a modern era. Proponents of this line of thinking state that international law is too restrictive in allowing states to combat threats, and that because what is self-defense to one state is aggression, armed reprisal, armed attack, intervention, or forcible counter-measures to another, the international laws that make up the UN Charter are bound to be selectively enforced (Glennon, 2002: 558). A scholar like Michael Glennon may agree with advocates of

preemptive self-defense that addressing terror threats in the post-September 11 international landscape requires anticipatory conflict; however, he would recognize that this is forbidden by international law. He may not agree with the law (or, more specifically, with the authority or the effectiveness of the United Nations to fairly and consistently settle conflict issues), but he understands that the law, as it is written, does not allow for preemptive self-defense to be justified. Therefore, in order for one to make an argument in favor of preemptive selfdefense, the argument must come not from a legality standpoint but from a position of morality and practicality. The most effective argument in favor of preemptive self-defense (especially in the case of the invasion of Iraq) that does not rely on international law is to contend that the war is a just war. A war can be considered just by two means. The first is a legally just war, which has been discussed at length. A war would be legally just if it acted in accordance with the UN Charter (i.e. aggression used only as a means to self-defense from an armed attack). The second means by which a war can be just is through moral means. David Luban, who offers the following insight, best defined this morally just conflict: A just war is (i) a war in defense of socially basic human rights (subject to proportionality); or (ii) a war of self-defense against an unjust war. An unjust war is (i) a war subversive of human rights, whether socially basic or not, which is also (ii) not a war in defense of socially basic human rights (Luban, 1980: 175). The morally just war argument essentially claims that, regardless of the international laws in place, a war can be justified or condemned based on its adherence to human rights. Lubans definition was not necessarily crafted with preemptive self-defense in mind, but it is not difficult to see the application in the case of Iraq. A proponent of preemptive selfdefense could justify the invasion of Iraq through the prism of morally just conflict. Generally speaking, preemptive self-defense can be seen to be morally just if the target state were on the precipice of engaging in human rights abuses (e.g. oppressing its own citizens or using weapons against other states), especially if the chance of an attack by the target state

was high and if the overall casualties (both civilian and military) would be lower by preemptively striking rather than waiting for an initial attack to happen (Posner and Sykes, 2004: 26). Specifically, the decision to invade Iraq follows a similar logic: waiting longer to invade would have given more time for Saddam Hussein to develop and use weapons of mass destruction, would have caused more casualties, and the probability that Iraq would attack was high (Posner and Sykes, 2004: 26). Given this, preemptive self-defense advocates say that the Iraq invasion was justified. While this argument is stronger than the legality argument, it is still considerably flawed. In the case of Iraq, one of the major flaws with the morally just war justification is the evidence. The basis of many of the United States claims that Iraq presented an imminent threat that needed to be countered before it could manifest itself was the belief that Iraq possessed (and was in the process of developing) weapons of mass destruction, including nuclear, biological, and chemical weapons. However, a Carnegie Endowment for International Peace released after the invasion of Iraq revealed that there were no biological or chemical weapons, and that the nuclear program was dormant (Calabrese, 2005: 155-157). In absence of such weapons of mass destruction, the justification of the invasion of Iraq begins to unravel. The Iraqi governments capacity to abuse the human rights of its citizens and the international community through nuclear, chemical, and biological weapons was overstated; therefore, the claims that a preemptive strike would save lives and be humanitarian in nature are considerably weakened. This has implications for not just the invasion of Iraq but the concept of preemptive self-defense as a whole. If a state justifies its preemptive self-defense against another state on morally just war grounds based on intelligence reports that later turn out to be overstated or false, can the war still be justified as preemptive self-defense? Without the presence of a tangible threat, branding an attack as preemptive self-defense becomes dubious at best. As

such, a state going to war based on preemptive self-defense from a threat that is later discovered to have never existed loses its justification for conflict. Another test of the justification of the Iraq war is to see to what degree it fits in with the six criteria for just war: legitimate authority, public declaration, reasonable hope for success, proportionality, last resort, and just intent. In terms of legitimate authority, then-US President George W. Bush had authority as the President of the United States, but his authority to authorize war is contested, as even the strongest advocates for military action against Iraq express the legitimate authority for the war as being based on a loose coalition of nations rather than an authority such as the UN (Wester, 2005: 29). Public declaration and reasonable hope for success were fairly straightforward, as President Bush gave Saddam Hussein a public timetable to step down from power, and the US government, as the strongest military force in the world, could easily be victorious in conflict (Wester, 2005: 29; 33). The invasion of Iraq only satisfied proportionality in light of perceived threatsgiven the actual threat (or lack thereof), the invasion was a disproportionate response. In 2003, the invasion may have been seen as a last resort; however, had UN inspectors had more time to see the extent of Iraqs capabilities, perhaps preemptive self-defense could have been avoided (Wester, 2005: 32-33). Perhaps the most difficult of these criteria to satisfy in the case of Iraq is just intent. In order for there to be just intent, there must exist two factors: Knowledge that the threat is in place[and] knowledge that the weapons are aimed at the nation proposing preemption in self-defense (Wester, 2005: 30). In the absence of one or both factors, any preemptive strike cannot have just intent. In addition, if one or both factors are proven incorrect, then the rationale for preemption cannot stand (Wester, 2005: 30). As discussed earlier, the knowledge of nuclear, chemical, and biological weaponry in Iraq proved to be false. Therefore, the preemptive strike on Iraq fails to satisfy four of the six criteria of just war:

legitimate authority, proportionality, last resort, and just intent. Consequently, the conflict cannot be justified as morally just. The intervention in Iraq has been shown to be unjustifiable from both a legal and moral standpoint. No international laws or articles of the UN Charter support the doctrine of preemptive self-defense. Article 51 of the UN Charter, the guiding law for self-defense, strictly states that self-defense is only legally justified in the wake of an armed attack. Additionally, the tenants of a morally just war permit the invasion of Iraq to proceed. Intervention in Iraq fails many of the criteria set forth to define a war as just, and its shortcomings are the same as for any conflict initiated under the reasoning of preemptive self-defense. As one of the most notable post-September 11 justifications of preemptive selfdefense, the case of Iraq is highly applicable to the strategys use in the international system. It is impossible to predict the future, and it would therefore be unwise to make a generalization about the absolute defensibility of preemptive self-defense. That said, current evidence suggests that the legal and moral rationalizations for anticipatory self-defense are unsound and not reinforced. The lessons learned from Iraq are clearpreemptive selfdefense is not, in the present international landscape, a justifiable position.

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Wester, F (2005) Preemption and Just War: Considering the Case of Iraq, Parameters, pp. 20-39