Preemptive Self-Defense in an Age of Weapons of Mass Destruction: Operation Iraqi Freedom

Article excerpt

Facing clear evidence of peril, we cannot wait for the final proof, the smoking gun that could come in the form of a mushroom cloud.

President George W. Bush (1)

I. THE FIGHT OVER PREEMPTION

With the promulgation of the Bush Doctrine, President George W. Bush announced a U.S. policy of preemptive action against terrorist states. (2) President Bush had previously identified Iraq, together with Iran and North Korea, as part of an "axis of evil" bent on the acquisition of weapons of mass destruction (WMD). (3) The Bush Administration asserted that the danger of WMD in the hands of Saddam Hussein was so great that it justified a preemptive attack on Iraq before these weapons could be developed and used. (4)

The Administration made the case against Iraq in speeches by Vice President Dick Cheney on August 26, 2002, (5) by Secretary of State Colin Powell before the U.N. Security Council on February 5, 2003 (6), and in addresses by President Bush before the General Assembly of the United Nations on September 12, 2002 (7) and on U.S. television on October 7, 2002. (8) Detailed charges against Iraq also are set out in the joint resolution for the use of military force drafted by the Administration and adopted by Congress. (9) Preemption supplants the containment strategy the United States had pursued against Iraq in the decade following the 1991 Persian Gulf War. (10)

"Preemption," "preemptive self-defense," and "anticipatory self-defense" traditionally refer to a state's fight to strike first in self-defense when faced with imminent attack--to beat an adversary to the punch. (11) Preemption remains relevant in the aftermath of Operation Iraqi Freedom as the Bush Administration contemplates preemptive military action to disarm Iran, Syria, North Korea, and Cuba. This article examines whether anticipatory self defense is permitted under international law and, if so, whether the invasion of Iraq was a legitimate exercise of anticipatory self-defense.

II. DID IRAQ'S MATERIAL BREACH OF THE PERSIAN GULF WAR CEASE-FIRE PROVIDE AUTHORIZATION FOR WAR?

Before discussing the legality of anticipatory self-defense, this section looks briefly at the Administration's argument that Operation Iraqi Freedom was legal due to Iraq's material breach of the 1991 Persian Gulf War cease-fire agreement. (12) Iraq's invasion of Kuwait on August 2, 1990 triggered the fight of individual and collective self-defense under Article 51 of the United Nations Charter. (13) Shortly thereafter, in Resolution 678, the Security Council invoked Chapter VII of the U.N. Charter and authorized Member States to "use all necessary means to uphold and implement Res. 660" and "all subsequent relevant resolutions." (14) One of those "subsequent relevant resolutions" was Resolution 687, the Gulf War ceasefire, which required Iraq to disarm and submit to weapons inspections. (15) Iraq's material breach of the ceasefire revived Resolution 678's authorization to use force. (16) This conclusion proceeds from a number of rationales. One is to treat Security Council Resolution 687 as analogous to a treaty. (17) Under the law of treaties, material breach of a treaty allows a "specially affected" party to suspend operation of the treaty. (18) Another rationale is that the cease-fire was expressly conditioned on Iraq's disarmament and compliance with inspections. (19) The Security Council found Iraq in material breach of the cease-fire on numerous occasions. (20)

The first President Bush relied upon the material breach argument to establish "no-fly" zones over northern and southern Iraq. (21) When the United States, Britain, and France bombed Iraq in January 1993 in order to enforce Iraqi compliance with weapons inspections they did not seek specific authorization from the Security Council. (22) Nevertheless, U.N. Secretary General Boutros Boutros-Ghali declared that the strikes were pursuant to Resolution 678. …