The Past and Future of the Claim of Preemptive Self-Defense

Abstract

The claim to a right of preemptive self-defense, once broadly asserted by the United States after the September 11, 2001 terrorist attacks, has been increasingly adopted by other nations. If employed, such a claim would permit a state to use preventative military force, in the absence of suffering an armed attack, against an apparent enemy. While the United Nations Charter clearly prohibits the use of such action against formally recognized states, the legal limits of preemptive self-defense against non-states are less concrete. This ambiguity carries with it alarming implications for the successful maintenance of world order.

This article traces the history of preemptive self-defense from its Cold War origins to its modern day application. First, it examines the evolving U.S. interpretation of preemptive self-defense beginning with the Reagan administration. Second, through analysis of various international legal opinions, it highlights the interpretations of preemptive self-defense expressed by the United Nations and the International Criminal Court of Justice. Third, it examines the preemptive self-defense policies held by U.S. coalition states participating in the war in Iraq and those held by non-coalition states. While some states denounce its use altogether, those in support of preemptive self-defense would utilize it against non-state or “terrorist” entities or against states in which terrorists may obtain weapons of mass destruction. Finally, given the potential destructive consequences of the growing adoption of this rationale, this article concludes that the international legal community must first define “terrorism” so that it may clearly enforce the legal boundaries of preemptive self-defense.

Keywords: preemptive self defense, United Nations, terrorism