How to Cut Cards
Szewczyk, Bart M. J. (2005) 'Pre-emption, Deterrence, and
Self-Defence: A Legal and Historical Assessment', Cambridge Review of
International Affairs, 18:1, 119 – 135
We have a right to use pre-emptive force against a nation that poses a military threat
under international law. Deterrence is effective but not against rouge nations so the use
of pre-emptive force against a rouge nation is trying to get WMD’s is just and lawful
under international law.
Bush administration declared a policy of pre-emptive use of force, as a measure of
last resort, to prevent ‘rogue states’ from acquiring weapons of mass destruction
(WMD). Some scholars have asserted that this policy was affirmed and effectuated
with Operation Iraqi Freedom, the US-led war in Iraq begun on 19 March 2003
(Wedgwood 2003; Yoo 2003; 2004).
However, the United States itself has not
embraced this legal argument. Instead, in its letter to the UN Security Council, the
US government based the lawfulness of the war in Iraq on existing Security
Council Resolutions, including Resolutions 678 (1990), 687 (1991), and 1441
Additionally, William H. Taft IV, the Legal Adviser at the US Department
of State, observed that, ‘viewed as the final episode in a conflict initiated more
than a dozen years earlier by Iraq’s invasion of Kuwait, [the war] may not seem . . .
as an example of preemptive use of force. . .
. Preemptive use of force is certainly
lawful where, as here, it represents an episode in an ongoing broader conflict
initiated—without question—by the opponent and where, as here, it is consistent
with the resolutions of the Security Council’ (Taft and Buchwald 2003, 562). Thus,
it is unclear whether the current US government regards the preventive war claim
of the NSS as a lawful measure it would enforce or a strategic bluff.
The NSS based the authority for the doctrine on the inherent right of selfdefence
under customary international law and Article 51 of the UN Charter:
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.