December 5, 2002

The adoption of SC Res.1441 has at least for the present staved off the prospect of the US (either alone or at the head of a coalition) taking military action in Iraq without the Security Council’s explicit authority. However the latter course remains a distinct possibility in the medium to long term, going by pronouncements emanating frequently from the highest levels in the US Administration. It is clear that the sole super power finds the current legal constraints on its freedom of action to be irksome, to say the least.

The issue can be considered at more than one level. To most third parties a conventional analysis of the UN Charter and the rules deriving from it would indicate that "unilateral" military action in the present context would be inconsistent with currently applicable obligations under international law. To counter this, arguments have been advanced based on rather strained interpretations of the right of self- defence (including the "anticipatory" and "pre-emptive" categories) ,of the right of humanitarian intervention, and indeed of the language of prior SC resolutions. Doubtless there are other categories of arguments which have been, or will be, put forward.

However the fact of the matter is that the ground realities underlying the UN Charter’s peace and security system have been eroded. That system was set up in 1945 to deal with a world dominated by a few great powers, already coalescing into two blocs. Hence the very substantial powers given to the Security Council’s permanent members together with a prohibition on the use of force by all UN members save at the behest of the Security Council or by way of individual or collective self- defence. Though that system did not operate in quite the way the drafters of the Charter had envisaged, it served a useful purpose and commanded (grudging) support as long as the two blocs had roughly comparable power. With the disintegration of the then Soviet Union into its constituent parts over a decade ago, the basis for that system is being called into question. The sole super power seems to be seeking to effect changes to the rules to accord with its present status.

It is unlikely that formal amendments to the UN Charter will be proposed or prove acceptable, especially to the other permanent members of the Security Council. But the options open to other UN members are limited. In any given case, if the super power decides to go it alone outside the Charter framework, then the vast majority of the UN membership may have no course open but to turn a Nelsonian eye.This naturally may foster reliance on "deemed" authority for, or acquiescence by the Council in,such acts undertaken by the super power. One may say that is not a new trend; the Council has been on this path for some time.

The foregoing is not meant as criticism of the US per se. Any other State in a similar situation would act in like fashion. Indeed it is fortunate that it is the US with its inherent values of tolerance and democracy which is the super power. While it is unrealistic to expect that the US will not seek to leverage its present position of strength to secure its interests, the US may also bear in mind that in the long run its interests are best served by promoting the sound development of the legal and institutional systems of international society.

Suryanarayan Sinha
Chennai, India

October 18, 2002

In response to Professor Paust:

1. The doctrine of anticipatory self-defense is fully consistent with customary international law, and namely the Caroline doctrine. Customary international law is a binding legal source, and many scholars have argued that the right of self-defense as defined under the Caroline case survived the adoption of the UN Charter.

2. Assuming that the doctrine of anticipatory self-defense does violate the language of article 51 and article 2(4) of the UN Charter, we must keep in mind that the Charter was drafted more than 50 years ago, at a time where weapons of mass destructions and terrorist threats were not a reality. International law must be stable, but it cannot stand still.

Mikael Nabati
President, H.W Briggs Society of International Law
JD candidate, Cornell Law School

October 16, 2002

Considering that:

1. The UN charter, in Article 2 (4) forbids the simple menace of one State using force against another one, and, 2. and the US/UK have continually repeated that threat, Wouldn't that give the Iraq a legitimate reason to report to the Secury Council, and ask that the SC take the necessary measures to end that menace?

One more thing: If the strongest argument to attack Iraq is based on its weapons of mass destruction,and if some others countries, like Pakistan and India have already many times threatened each other with the use of nuclear weapons, wouldn't that be a reason for an attack against those two countries, in order to prevent more catastrophic consequences?

Marco Saias

October 13, 2002

The most relevant story I've seen on this issue is the report from the Project for a new American century, via the Irish Sunday Herald. It can be seen at www.cryptome.org/rad.htm

It suggests that some of Bush's advisers wanted to attack Iraq before he took office, whether Hussein was in power or not.

Marshall Kirkpatrick

October 12, 2002

If the U.S.intends to act unilateraly on the basis of President Bushs' doctrine of 'pre-emptive self defense' Then in light of the real and immediate threat to Iraqi sovereignty the Iraqi regime could legitimately make a pre-emptive self defensive strike against the US.

Edward Burke

October 10, 2002

Given that a unilitaral preemptive strike by the US would be on its face a violation of Article 51 of the UN Charter and that the Charter itself has been incorporated by reference into US law, would not such a violation be a legitimate ground for impeachment of President Bush?

Why has this thought not yet appeared in all the op ed criticisms of the rush to war?

Sincerely,

L. Michael Hager
Executive Director
Conflict Management Group

September 27, 2002

Everything the current administration has done for the past nine months is a denial of belief in World Law and Order, International Judicial Process, and willingness to consider that this nation is only one of 188 of the United Nations and can not and should not presume that by its economic and military force override any and all nations that stand in dissent to its political objectives.

Walter E. Bains

September 13, 2002

Preemptive Self-Defense is Widely Condemned

Predominant trends in decision demonstrate widespread expectations and intense demands that the use of armed force merely for preemptive or retaliatory purposes is inconsistent with the purposes of the United Nations Charter and is proscribed under Article 2 (4) of the Charter.¹

Jordan J. Paust
Law Foundation Professor, University of Houston Law Center.

1 See, e.g., Ian Brownlie, International Law at the Fiftieth Anniversary of the United Nations Charter, 255 REC. DES COURS 203-04 (1995); Michael Byers, Terrorism, The Use of Force and International Law After 11 September, 51 INT’L & COMP. L.Q. 401, 401 & n.1, quoting U.N. S.C. Res. 188 (9 Apr. 1964), U.N. Doc. S/5650 ("The Security Council... [c]ondemns reprisals as incompatible with the purposes and principles of the United Nations."), 410 ("Until 11 September, any right to pre-emptive action was widely contested...firmly rejected") (2020); Jonathan I. Charney, The Use of Force Against Terrorism and International Law, 95 AM. J. INT’L L. 835, 835 (2001); Tom J. Farer, Beyond the Charter Frame: Unilateralism or Condominium?, 96 AM. J. INT’L L. 359, 360 (2002); Sean D. Murphy, Terrorism and the Concept of "Armed Attack" in Article 51 of the U.N. Charter, 43 HARV. INT’L L.J. 41, 42 (2002); Jordan J. Paust, Responding Lawfully to International Terrorism: The Use of Force Abroad, 8 WHITTIER L. REV. 711, 713, 717-19 & n.21, 723 (1986); Sreenivasa Rao Pemmaraju, International Organizations and Use of Force, in 2 LIBER AMICORUM JUDGE SHIGERU ODA 1575, 1578-79 & n.10 (Nisuke Ando, Edward McWhinney, Rudiger Wolfrum eds. 2002) (anticipatory self-defense is impermissible); Gregory M. Travalio, Terrorism, International Law, and the Use of Military Force, 18 WIS. INT’L L.J. 145, 157 (2000) (Israeli retaliatory raids have been constantly criticized by the U.N. Security Council or the General Assembly); U.N. S.C. Res. 573 (4 Oct. 1985) (condemnation of Israeli reprisal against the PLO Headquarters in Tunis, Tunisia as an "act of armed aggression perpetrated by Israel against Tunisian territory in flagrant violation of the Charter of the United Nations, international law and norms of conduct"); Pemmaraju, supra note 1, at 1578-19 & n.10 (anticipatory self-defense is impermissible); but see W. Michael Reisman, International Legal Responses to Terrorism, 22 HOUS. J. INT’L L. 3, 18-19 (1999). The United States abstained with respect to U.N. Security Council Resolution 573 in 1985, noting the "escalating force and counter-force," "the rising spiral of violence" and Israel’s "responses to [prior] terrorist attacks," but stated that the U.S. strongly supports "the principle that a state subjected to continuing terrorist attacks may respond with appropriate use of force to defend against further attacks" as "an aspect of the inherent right of self-defense recognized in the United Nations Charter." See Statement of Ambassador Vernon A. Walters, reproduced in Reprisals, 80 AM. J. INT’L L. 165, 166-67 (1986).

We welcome your comments, questions, and suggestions. Please send them to us by completing the form below. You may also send e-mail directly to [email protected].

Join our e-mail list if you would like to receive notification when new content is posted on this site. We may also, from time to time, make you aware of other developments at the Crimes of War Project.

NOTE: We respect your privacy and will not share your contact information with any other individual or organization without your express permission.