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The American Strategy of Preemptive War and International Law

Dietrich Murswiek

Albert Ludwigs Universität Freiburg - Institute of Public Law

March 2003

The article analyzes the American war on Iraq in its context with the U.S. National Security Strategy and its possible consequences for the development of public international law. The attack on Iraq without U.N. consent is illegal. A mandate for military actions against Iraq cannot be derived from existing Security Council resolutions. Unilateral use of military force can only be justified by self-defence. Anticipatory self-defense is only allowed, if the government can prove that a threat of an armed attack is imminent and leaves no choice of other means than military self-defense and no time to apply to the Security Council. In the present Iraq crisis the U.S. government cannot meet these criteria. By claiming a right to preemptive action, the U.S. government is pushing a change in public international law. If other States don't object a beginning practice of preemptive war, there could emerge a new rule of public international law that allows preemptive wars. Such a rule would leave it within the subjective discretion of each individual State to decide, whether another State is to be qualified as a "rogue State", poses a threat to international peace and can legally be attacked. Nobody wants a new rule to become law, which would allow nearly every State to wage war against a lot of other States. Actually, the U.S. claims the right to preemptive action exclusively for itself. If the U.S. is successful in promoting this exclusive right to preemptive self-defense, then the fundamental principle of sovereign equality of States will be overthrown.

Number of Pages in PDF File: 15

Keywords: preemptive war, preemptive action, preemptive self-defense, Iraq, war on Iraq, prohibition of the use of force, self-defense, Security Council Resolution 1441, sovereign equality of States

JEL Classification: K33

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Date posted: July 18, 2003  

Suggested Citation

Murswiek, Dietrich, The American Strategy of Preemptive War and International Law (March 2003). Available at SSRN: http://ssrn.com/abstract=397601 or http://dx.doi.org/10.2139/ssrn.397601

Contact Information

Dietrich Murswiek (Contact Author)
Albert Ludwigs Universität Freiburg - Institute of Public Law ( email )
D-79098 Freiburg
+49/761-2032241 (Phone)
+49/761-2032240 (Fax)
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