Pre-emptive--Preventive war : international law after Iraqi war 2003

Abstract

The norm of self-defense in international law is so determinedly an inherent right that its precise meaning and justifications are rarely examined. Whatever the general merits of the norm, its retention seems fairly open to question when one sovereign state appears supremely unsecured facing a threat in terms of actual armed attack or imminent threat. This thesis studies the term and the case of a theoretical defense of the norm within the context of the state's use of force in pre-emptive self-defense - anticipatory self-defense. If a defense can be made when the supreme state's self-preservation is at stake, then it is hard to see how any case can be made against it. For the purposes of this thesis, I took the Iraqi war of March 2003 as a case study. Arguments about self-defense and the legitimate and legal uses of force are more difficult than one would expect since they are based on history, on the inherent right of states to preserve their security and peace. But a defense can be made successfully on pragmatic grounds relating to the nature of the principal threat to the state. In the case of the United States, the threat was the use of weapons of mass destruction (WMD). From the perspective of the United States Administration, American action whether preemptive or anticipatory self-defense is justified since it was defending its existence. The consequences of such pre-emptive war created fear that this invasion of Iraq will create a new precedent or a new standard that might undermine international law. This thesis explores the manipulation of the American - Iraqi war of March 2003 through an examination of pre-emption and prevention concepts. It begins by defining pre-emption in general terms through the works of selected authors, international law, and the Charter of the United Nations. To further assist in understanding pre-emption as a national security strategy, the paper looks at selected historical examples where pre-emption was used or considered for use in differing environments as a security strategy. It provides a comprehensive definition of preemption and prevention and discusses hidden consequences associated with a policy or employment of pre-emptive force. The National Security Strategy asserts that imminence extends beyond immediate threats to include more distant and uncertain challenges; hence the solution is to forestall the threat before its realization. This thesis closes with thoughts relative to the future of pre-emption as a national security strategy for the United States and whether the National Security Strategy is a pre-emptive or preventive course of action, whether the war on Iraq is a justified war and on what legal basis it was waged.