Analysis of the US Legal Justification for Invading Iraq in 2003-GGN-2007

THE
UNIVERSITY OF CALIFORNIA
AT IRVINE
DEPARTMENT OF POLITICAL SCIENCE
ANALYSIS OF THE US LEGAL JUSTIFICATION FOR INVADING IRAQ IN 2003
GARRIC G. NAHAPETIAN
POLITICAL SCIENCE HONORS THESIS
MAY 2007

THE UNIVERSITY OF CALIFORNIA AT IRVINE 2
Analysis of the US Legal Justification for Invading Iraq in 2003
GARRIC G. NAHAPETIAN
∗
PROFESSOR WAYNE SANDHOLTZ
∗
On March 20th
, 2003, the United States invaded Iraq and seized
control of the capital city of Baghdad. The United States claimed that
its invasion of Iraq was authorized under international law, however,
many scholars and diplomats argued otherwise. This thesis seeks to
identify and analyze the US legal justification for invading Iraq. This
thesis discusses only the legal arguments for the validity of the
invasion under international law and it does not attempt to analyze the
invasion on political or moral grounds or with respect to the domestic
laws of the US. This thesis offers: (1) a brief discussion of the United
Nations, its Charter, and its relevance to the use of force; (2) a
detailed account of the US legal theory; and (3) an in-depth look at
how that theory stands up against international law. This thesis
concludes that the US legal justification is not persuasive and that the
invasion was illegal.
INTRODUCTION……………………………………………………………………...... 3
I. THE UNITED NATIONS AND THE USE OF FORCE…………………………............ 4
II. THE US LEGAL THEORY…………………………………………......…….........7
III. ANALYSIS OF THE US LEGAL THEORY
A. Interpreting Security Council Resolutions………....……………............... 9
B. Preemptive Self-Defense…………………….……………........................ 9
C. Prior Security Council Authorization……………..…………………....... 22
CONCLUSION……………………………...……………………….….....……...……41
∗
Political Science Undergraduate, School of Social Sciences, University of California, Irvine. The author extends
his thanks to his thesis advisor, Professor Wayne Sandholtz, to Russell Richardson for his comments on an earlier
draft, and to Sean D. Murphy for providing an extremely helpful example. The views contained herein and any
errors are attributable solely to the author.
∗
Professor of Political Science, School of Social Sciences, University of California, Irvine. Professor Sandholtz
served as the author’s faculty mentor during the writing process.

3 ANALYSIS OF THE US LEGAL JUSTIFICATION FOR INVADING IRAQ IN 2003
INTRODUCTION
On March 20th
, 2003, the United States conducted a military invasion of Iraq that directly led
to the overthrow of the Iraqi government, the subsequent occupation of Iraqi territory, and the
establishment of a new interim Iraqi government. The military force of the invasion, labeled “the
coalition of the willing,” was comprised mainly of US troops, in addition to troop contributions
by more than 35 other countries. However, this campaign against Iraq was mostly an effort on
the part of the United States Government (US), with political support coming from the
Government of the United Kingdom (UK).
The invasion was conducted without express authorization from the Security Council and in
the face of much opposition from the international community, including three permanent
Security Council members.1
Iraq was a Member of the United Nations prior to the invasion, thus
retaining its sovereignty, territorial integrity, and political independence – subject only to the
imposition of the Security Council. Therefore, the use of force by the US against Iraq was a
violation of the inherent rights of a member of the United Nations as well as a total subversion of
the United Nations Charter.
However, the US claims that it had legal authority under international law to invade Iraq. 2
The US legal theory bases that authority on two separate grounds. First, the US argues that it
had the sovereign authority to act in preemptive self-defense, and second, that it had the
authority to use force pursuant to prior Security Council resolutions. This thesis examines the
validity of the US legal theory and ultimately determines that the US legal theory is unpersuasive
and that the invasion was not legally authorized.
This thesis is organized into four Chapters. Chapter I discusses the relevance to this case of
the Untied Nations and the United Nations Charter. Chapter II includes a detailed account of the
purported US legal theory. Chapter III offers a thorough analysis of the US legal theory.
Chapter III is organized into three sections, A, B and C. Section A provides a brief discussion on
interpreting Security Council resolutions. Section B analyses the US claim to preemptive self-
defense, and Section C analyzes the prior Security Council authorization argument. The
conclusion discusses some of the implications of the US use of force against Iraq.
1
See U.N. SCOR, 58th
Sess., 4726th
mtg. at 26-29, U.N. Doc. S/PV/4726 (2003) (statements of Russian, China, and
France).
2
See Address to the Nation on Iraq, 30 Weekly Comp. Pres. Doc. 338, at 339 (March 17th
, 2003) [hereinafter
Address on Iraq].

I. THE UNITED NATIONS AND THE USE OF FORCE
On October 24th
, 1945, after China, France, the Soviet Union, the United Kingdom, the
United States, and 45 other countries ratified its Charter; the United Nations officially became an
international organization. At present, the organization is composed of 192 member states,
making it the only organization with near global membership. In addition, the Charter codifies
the major principles of international relations and international law. By accepting its terms and
ratifying the Charter, the United States and all other signatories became members of the United
Nations. However, the Charter was not meant to immediately impose legally binding obligations
on member states. Rather, under Article 110 Paragraph 3, the Charter would come into force
upon the deposit of ratifications by the Republic of China, France, the Union of Soviet Socialist
Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of
America, and by a majority of the other signatory states. After those ratifications were deposited
with the United States, the Charter entered into force and became legally binding upon those
member states, including the US. Thus, prior to the invasion, the US was subject to the United
Nations pursuant to Article 2 Paragraph 2, which states, all members must fulfill in good faith
their Charter obligations.3
Since the US is subject to the United Nations, US action must be
viewed in light of the United Nation Charter. The Preamble of the Charter expresses the ideals
and common aims of the United Nations. For the purposes of this thesis, it is relevant to note the
following terms of the Preamble,4
We the Peoples of the United Nations, determined to save succeeding generations from the
scourge of war, reaffirm equal rights of nations large and small and to, establish conditions under
which justice and respect for the obligations arising from treaties and other sources of
international law can be maintained, and for those ends to, practice tolerance and live together in
peace with one another as good neighbors, unite our strength to maintain international peace and
security and to, ensure by the acceptance of principles and the institution of methods, that armed
force shall not be used, save in the common interest, have resolved to combine our efforts to
accomplish these aims.
In addition, it is relevant to note the following terms of Chapter 1 of the Charter, which establish
the Purposes and Principles of the United Nations: 5
• Under Article 1, the purposes of the United Nations are to, inter alia:
¶ Maintain international peace and security,
¶ Develop friendly relations among nations based on respect for the principle of equal rights
and self-determination of peoples and,
¶ Be a center for harmonizing the actions of nations in attaining these common ends.
• Under Article 2, the United Nations and its members, while pursuing the purposes set forth in
Article 1, are to act in accordance with the following principles:
¶ The organization is based on the principle of the sovereign equality of all its members,
¶ All members are to fulfill in good faith their Charter obligations,
¶ All Members shall settle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered and,
¶ All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.
3
For a discussion of good faith performance, see William R. Slomanson, FUNDAMENTAL PERSPECTIVES ON
INTERNATIONAL LAW, 4th
ed., at 357 (2003).
4
U.N. Charter pmbl.
5
Id. arts. 1-2.

The US Invasion and the Prohibition on the Use of Force
Article 2 Paragraph 3 states, “All Members shall settle their international disputes by
peaceful means in such a manner that international peace and security, and justice, are not
endangered.’6
Rather than prohibiting an action, Article 2 Paragraph 3 actually prescribes one by
ordering Member States to handle their matters peacefully. Article 2 Paragraph 4 states that
members shall refrain from the threat or use of force: (1) against the territorial integrity; and (2)
the political independence of any state; and (3) in any other manner inconsistent with the
Purposes of the United Nations.
Article 2(4) is an explicit prohibition on the use of force, including two defined instances in
which force is barred. However, the meaning of the third instance seems intentionally
ambiguous. For this discourse, it may be unnecessary to interpret the broader prohibition, for the
actions considered here are undoubtedly the type in which Article 2(4) aims to prohibit.
Regardless of how one interprets these three separate cases, a combination of Article 2(3) and
2(4) makes it clear that member states must act peacefully and must not use force against any
other state.
With respect to the invasion, this use of force is exactly the type in which Article 2(4) aims to
bar. Both Iraq and the United States were Members of the United Nations prior to and during the
invasion, and by invading Iraq and overthrowing its government, the United States did in fact use
force against both the territorial integrity and political independence of a member state. In this
sense, it may be irrelevant as to whether or not the US use of force fits the broader prohibition,
but let us consider it anyway.
Article 2(4) prohibits the threat or use of force in any manner inconsistent with the Purposes
of the United Nations. The use of the word “Purposes” with a capital “P” makes reference to
actual defined Purposes, which can be found in the Charter. By referring back to a defined term,
the aim of this prohibition is actually very specific, and any ambiguity in its interpretation would
be based on how one reads the Purposes of the United Nations. Such Purposes are explicitly
defined in Article 1, as discussed above. By its actions, the US interfered with the United
Nation’s ability to maintain international peace and security. In addition, the purpose of the
United Nations to develop friendly relations among nations, a purpose of which is based on
respect for the principle of equal rights and self-determination of peoples, has been obstructed by
the invasion, most notably by the subsequent occupation and forceful regime change. For those
reasons, it is reasonable to assume that the US use of force was inconsistent with the Purposes of
the United Nations, and therefore, that the US use of force is the type of action that Article 2(4)
aims to bar.
Legal Use of Force
Although member states are prohibited from using force, Chapter VII of the Charter provides
two ways in which force can be legally used.7
Thus is possible for the US to claim that its use of
force was legal under the Charter. The following terms of Chapter VII are important to note
here:
• Article 39 – the Security Council shall determine the existence of any threats to the peace, breach
of the peace, or act of aggression, and shall make recommendations or decide what measures
6
Id. art. 2, ¶ 3.
7
Id. art. 42 and 51.

shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace
and security.
• Article 41 – the Security Council may decide what measures not involving the use of armed force
are to be employed to give effect to its decisions, and it may call upon the Members of the United
Nations to apply such measures. These may include complete or partial interruption of economic
relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and
the severance of diplomatic relations.
• Article 42 – Should the Security Council consider that measures provided for in Article 41 would
be inadequate or have proved to be inadequate; it may take such action by air, sea, or land forces
as may be necessary to maintain or restore international peace and security. Such action may
include demonstrations, blockade, and other operations by air, sea, or land forces of Members of
the United Nations.
• Article 51 - Nothing in the present Charter shall impair the inherent right of individual or
collective self-defense if an armed attack occurs against a Member of the United Nations, until
the Security Council has taken measures necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of self-defense shall be immediately
reported to the Security Council and shall not in any way affect the authority and responsibility of
the Security Council under the present Charter to take at any time such action as it deems
necessary in order to maintain or restore international peace and security.
In the first instance, force is legally permitted when the Security Council decides that force is
necessary. In practice, this decision has come in the form of a Security Council Resolution
(SCR). Although the Charter stipulates that force shall be used under the control of the Security
Council, it has been the practice of the international community, after the Council authorizes
force, to use force without extensive Council control. In the second instance, force is legally
permitted in self-defense. Article 51 recognizes that States have a right to self-defense, and it
inhibits the Charter from infringing on this right. However, disputes remain as to the meaning
and implication of Article 51, and those differences in interpretation shall be covered in Chapter
III. Thus, if the US were to claim that the invasion was legal under the Charter, it would make
its claim within the provisions of these two exceptions.

II. THE US LEGAL THEORY
An Important Distinction
Before introducing the US legal theory it is important to distinguish between two different
kinds of justifications. The first kind of justification is a policy-based justification. Before
governments take any action, like – for example – the use of force, they usually provide – if
necessary8
– a reason that justifies the use of force. The reasoning they might provide usually
aims to prove why the use of force is necessary, and is usually based on various moral or
political grounds. If a government’s course of action is not legally prohibited, then to take such
action would be seen as justified once proven necessary. However, since there is a legal
prohibition on the use of force, after proving such action necessary, one must also prove the use
force to be legally authorized. In the present case, the use of force was legally prohibited;
therefore, the US government was required to provide a legal justification. This thesis is only
concerned with analyzing the US legal theory and will only discuss the US policy-based
justifications in passing.
Preemptive Self-Defense
According to the US legal theory, the 2003 invasion of Iraq was justified under international
law as an act of anticipatory self-defense. In the 2002 US National Security Strategy, President
Bush stated that international law recognizes the right of anticipatory self-defense in response to
imminent threats.9
However, Bush argues that the concept of imminence should be adapted to
include the “capabilities and objectives of today’s adversaries” who “rely on acts of terror and,
potentially, the use of weapons of mass destruction.”10
Bush asserts that in order to “forestall or
prevent such hostile acts by our adversaries, the United States will, if necessary, act
preemptively.”11
In International Law and the War in Iraq, John Yoo defends this view of an adapted concept
of imminence.12
Yoo states, “Although the dictionary definition of “imminent” focuses on the
temporal, under international law the concept of imminence must encompass an analysis that
goes beyond the temporal proximity of a threat to include the probability that the threat will
occur.”13
Yoo asserts that the use of force in anticipatory self-defense against terrorist groups
armed with WMD, or against the rogue nations that support them, will depend on factors that go
beyond mere temporal imminence.14
8
Typically, governments that are accountable to or representative of their people must justify to their citizens those
actions, which have domestic implications. Likewise, most governments today, even those not representative of
their people, must justify to the international community those actions, which have international implications.
9
George W. Bush, The National Security Strategy of the United States of America (2002) at 15 (For centuries,
international law recognized that nations need not suffer an attack before they can lawfully take action to defend
themselves against forces that present an imminent danger of attack).
10
Id. at 15.
11
Id. at 15.
12
John Yoo, International Law and the War in Iraq, American Journal of International Law, v. 97, 563-76, at 572 et
seq. (2003).
13
Id. at 572.
14
Id. at 575.

In his Address on Iraq, President Bush made his case for anticipatory self-defense against
Iraq.15
First, Bush made it clear that Saddam Hussein had a propensity to use force and that Iraq
had weapons of mass destruction. Second, Bush argued that Iraq had ties to terrorist
organizations and the Saddam Hussein hated America. Finally, Bush asserted that the United
States had the sovereign authority to use force in assuring its own national security. Essentially,
Bush argued that these factors constitute a threat that is sufficiently imminent to render the use of
force against Iraq to eliminate that threat as justified under the doctrine of anticipatory self-
defense.
This thesis will show that the evidence provided by Yoo, in support of the claim for an
adapted concept of imminence, is unpersuasive. It will, therefore, reject the US proposition to
redefine anticipatory self-defense and thus, will not question whether or not the invasion meets
the requirements set forth by Yoo. This thesis recognizes the need to adapt the law to meet the
threats of the 21st
century and will deal specifically with this issue below. Essentially, this thesis
argues that the concept of imminence should not be adapted as the US legal theory proposes and
that the invasion was not an act of anticipatory self-defense, but rather an act of preventive force.
There seems to be much confusion as to the meaning of terms such as anticipatory self-
defense, preemption, and prevention. Some scholars equate the terms of anticipatory self-
defense and preemption. Some equate the terms of preemption of prevention. By definition,
both anticipatory self-defense and preventive force are preemptive acts. This thesis is consistent
with, but does not rely upon, that categorization. This thesis will discuss the US legal theory as a
claim to anticipatory self-defense and not preemption.
Prior Security Council Authorization
According to the US legal theory, the 2003 invasion of Iraq was also justified under
international law pursuant to prior Security Council resolutions. In his Address on Iraq, Bush
stated, “Under Resolutions 678 and 687, both still in effect, the United States and our allies are
authorized to use force in ridding Iraq of weapons of mass destruction.”16
Bush does not detail
this legal argument, in fact, he stated, “This is not a question of authority, it is a question of
will.”17
However, Ambassador Negroponte provided an official account of this theory.18
First, he
argued that SCR 687 imposed a series of obligations on Iraq that were conditions of the cease-
fire established under it. Second, he stated that it has long been recognized and understood that a
material breach of those obligations removes the basis of the cease-fire and revives the authority
to use force under SCR 678. He argued that this revival theory is evidenced by the Secretary-
General’s public announcement in January 1993 following Iraq’s material breach of SCR 687
that coalition forces had received a mandate from the Council to use force according to SCR 678.
Finally, he stated that SCR 1441 found Iraq to be in material breach of those obligations, thus the
basis for the cease-fire had been removed and the use of force was authorized under SCR 678.
15
Address on Iraq, supra note 2.
16
Id.
17
Id.
18
See Letter Dated 20 March 2003 from the Permanent Representative of the United Sates of America to the United
Nations Addressed to the President of the Security, U.N. Doc. S/2003/351 (2003) [hereinafter Letter Dated 20
March 2003]; see also U.N. SCOR, 58th
Sess., 4726th
mtg., at 25, U.N. Doc. S/PV.4726 (2003).

III. ANALYSIS OF THE US LEGAL THEORY
A. Interpreting Security Council Resolutions
The arguments below rely heavily upon discussions of Security Council resolutions (SCR’s).
Consequently, this analysis has much to do about the interpretation of SCR’s. Articles 31
through 33 of the Vienna Convention of the Law of Treaties (VCLT, 1969) provide a good
starting point for interpreting SCR’s,19
but as H. Thirlway points out,
It is unclear to what extent, if any; the rules as to interpretation of treaties may be applied, by
extension, to the interpretation of the resolutions of decisions of international organizations. In
one sense, a resolution represents, like a treaty, a meeting of wills, a coming-together of the
(possibly opposing) aspirations of the States whose representatives have negotiated its drafting.
In another sense, it is a unilateral act, an assertion of the will of the organ adopting it, or a
statement of its collective view of a situation.
20
Thus, although SCR’s can be interpreted in accordance with the VCLT, their distinction from
treaties warrants a more appropriate method. The method of interpretation employed by this
thesis adheres to the method offered by Wood and, more specifically, relies upon the following
three elements.
1. Narrow interpretations of resolutions that authorize the use of force.21
2. Reference to prior and subsequent state practice relative to the resolutions.22
3. Reference to Security Council member’s statements prior and subsequent to the adoption of the
resolutions.
23
B. Preemptive Self-Defense
Given that Iraq had not attacked the US or any of its allies, prior to the invasion, no claim to
an Article 51 act of self-defense could seriously be made. Yet, the US legal theory still
maintains that the invasion was justified as self-defense, but rather than justifying the invasion in
terms of Article 51, the US legal theory justified it as an act of anticipatory self-defense.
However, the US legal theory fails to distinguish between anticipatory self-defense and
preventive action.
19
Michael C. Wood, The Interpretation of Security Council Resolutions, Max Planck Yearbook of United
Nations Law, v. 2, 1998, at 85.
20
H. Thirlway, The Law and Procedure of the International Court of Justice 1960-1989, Baltic Yearbook of
International Law, v. 67, 1996, at 29.
21
Accord Ian Johnstone, AFTERMATH OF THE GULF WAR: AN ASSESSMENT OF UN ACTION, at 40 (Rienner 1994).
Johnstone, former associate legal officer at the United Nations, states “because the use of force is normally a
contravention of the Charter, any ambiguity about the scope and duration of the delegation should be construed
narrowly; see also Jules Lobel & Michael Ratner, Bypassing the Security Council: Ambiguous Authorizations to Use
Force, Cease-Fires and the Iraqi Inspections Regime, American Journal of International Law, v. 93, 124-54, at 125
(1999) (“Ambiguous authorization should be narrowly construed”).
22
Supra note 19, at 94; See also Vienna Convention on the Law of Treaties, May 23, 1969, art. 31(3)(b).
“Subsequent practice by state in the application of a treaty is regarded as relevant in some circumstances for
purposes of interpreting the treaty.”
23
Supra note 19, at 90.

Origin of Anticipatory Self-Defense
According to Anthony Arend, long before the Charter of the United Nations was adopted, the
use of force in anticipatory self-defense was accepted as customary international law.24
The
right of anticipatory self-defense was articulated by the 1837 Caroline Case, in which British
troops entered U.S. territory from Canada and subsequently seized and set fire to the American
steamboat Caroline, which had allegedly been supporting anti-British rebels. Britain claimed
that it had acted in self-defense, and in-response, U.S. Secretary of State Daniel Webster called
upon Britain to show that,
[The] Necessity of self-defense [was] instant, overwhelming, leaving no choice of means, and no
moment for deliberation [and that the British force], even supposing the necessity of the moment
authorized them to enter the territories of the United States at all, did nothing unreasonable or
excessive; since the act, justified by the necessity of self-defense, must be limited by that
necessity, and kept clearly within it.
25
By his own admission, Webster distinguished between acts of self-defense in response to actual
armed attacks and acts of self-defense in response to overwhelming necessity, and by requiring
Britain to show as much, he implied the legality of acts having met those conditions. In 1842,
Lord Ashburton responded and justified Britain’s actions in Webster’s own terms,26
thus
implicitly accepting Webster’s test.27
In 1947, the International Military Tribunal at Nuremburg
reaffirmed Webster’s notion stating that preventive action was justified only when it met the
conditions of the Caroline case.28
Thus, it seems that anticipatory self-defense was accepted
among States as a right distinct from that of self-defense in response to an armed attack.
Post-Charter Era and Anticipatory Self-Defense
In the Post-Charter Era, disputes have arisen as to the legal implications of Article 51 on the
principle of anticipatory self-defense. Some argue that Article 51 limits the use of force in self-
defense to only those circumstances where an actual armed attack has occurred.29
Conversely,
some argue that in light of the reference to an “inherent right,” it seems that Article 51 intended
to preserve the customary right of anticipatory self-defense.30
However, a more plausible
interpretation would be that it does neither. Article 51 is a rather passive provision in that it does
not prescribe a right or method of behavior; it merely excuses the Charter from impairing on an
24
Anthony Clark Arend, International Law and the Preemptive Use of Military Force. The Washington Quarterly,
v. 26 issue 2, 89-103, at 90 (Spring 2003 ) (“Under the regime of customary international law that developed long
before the UN Charter was adopted, it was generally accepted that preemptive force was permissible in self-
defense. There was, in other words, an accepted doctrine of anticipatory self-defense”).
25
Letter from Daniel Webster, U.S. Secretary of State, to Henry Fox, British Minister in Washington, Apr. 24, 1841,
reprinted in British and Foreign State Papers 1840–1841, v. XXIX 1138 (1857).
26
See Letter from Lord Ashburton to Daniel Webster, U.S. Secretary of State, July 28, 1842, reprinted in British
and Foreign State Papers 1841-1842, v. XXX 189–192 (1858), available at <www.yale.edu/lawweb/avalon
/diplomacy/britian/br-1842d.htm>.
27
28
See International Military Tribunal (Nuremberg)—Judgment and Sentences, 41 AJIL 172, 205 (1947)
(“preventive action in foreign territory is justified only in case of ‘an instant and overwhelming necessity for self-
defense, leaving no choice of means, and no moment for deliberation’”) (quoting the Caroline case); see also D.W.
Bowett, Self-Defense in International Law, at 142–43 (1958).
29
Supra note 24, at 92
30
Id. at 92

inherent right of states. Indeed, article 51 does not establish a right, but by excusing the Charter,
it does, however, recognize the existence of the right of states to act in defense of an armed
attack. Nevertheless, this recognition should not be mistaken for the establishment or limitation
of a right; such an interpretation falsely assumes that Article 51 is an active provision. Instead,
Article 51 only recognizes the existence of a right and excuses itself from limiting it. With this
interpretation, anticipatory self-defense could still be considered a valid customary international
law surviving the Charter.
However, as former President of the International Criminal Tribunal for the Former
Yugoslavia, Professor Antonio Cassese points out, States do not agree as to the existence of
anticipatory self-defense under Article 51. Cassese states,
If one undertakes a perusal of State practice in the light of Article 31 of the Vienna Convention
on the Law of Treaties, it becomes apparent that such practice does not evince agreement among
States regarding the interpretation or the application of Article 51 with regard to anticipatory self-
defense.
31
Nevertheless, State practice does provide some evidence that anticipatory self-defense remains a
valid customary international law independent of Article 51, or at least has yet to be specifically
banned. For example, after examining three separate Post-Charter cases in which individual
States claimed the right to anticipatory self-defense, Arend states, “It would be difficult to
conclude that there is an established rule of customary international law prohibiting [emphasis
added] the preemptive use of force when undertaken in anticipatory self-defense.”32
Regardless, these disputes over-look the fact that, in this day and age, claims to the right of
anticipatory self-defense are reasonable. Given that weapons can now cause more destruction
more quickly, it seems unreasonable to require that States actually suffer an attack before they
can legally defend themselves with force.33
However, whereas self-defense in response to an
armed attack creates a bright-line that is hard to get around, anticipatory self-defense creates a
loophole that can potentially be misused.34
Thus, it is more important to recognize the principle
of anticipatory self-defense as necessary and pragmatic, and to discern the manner in which it
should be applied.
Application of Anticipatory Self-Defense
In order to understand how anticipatory self-defense should be put in to practice, we must
understand the relationship between it and the Charter. Two qualities of the principle help to
find its place within the Charter. First, as a defensive act, certain implications of Article 51
should follow. For instance, all acts of anticipatory self-defense should be subject to Charter
limitations once “the Security Council has taken measures necessary to maintain international
peace and security.”35
Thus, any action taken in anticipatory self-defense should cease once the
31
Antonio Cassese, INTERNATIONAL LAW, at 309 (Oxford 2001).
32
33
R. Jennings QC & A. Watts QC (eds), OPPENHEIM’S INTERNATIONAL LAW, 9th
ed., at 41-42 (1991) (“In conditions
of modern hostilities it is unreasonable for a state always to have to wait until an armed attack has begun before
taking defensive action.”)
34
See Sean D. Murphy, Assessing the Legality of Invading Iraq, Georgetown Law Journal, v. 92 issue 2 173-257, at
176 (January 2004) (Had the United States relied on preemptive self-defense as its theory for invading Iraq, there is
no easy answer why, as a legal matter, India could not invade Pakistan if India feels threatened by the potential
future use of Pakistan’s nuclear capability.)
35
Id. art. 51.

Security Council takes formal action on the matter. In addition, anticipatory self-defense should
be subject to the Article 51 stipulation that,
Measures taken by Members in the exercise of this right of self-defense shall be immediately
reported to the Security Council and shall not in any way affect the authority and responsibility of
the Security Council under the present Charter to take at any time such action as it deems
necessary in order to maintain or restore international peace and security.
36
Thus, states should make a concerted effort to inform the Security Council prior to – if possible –
and immediately after any action is taken in self-defense. Second, whereas self-defense is
expressly recognized under the Charter and anticipatory self-defense is not, anticipatory self-
defense should be viewed as an exception to Article 2(4), thus entailing a presumption of
illegality.37
Having found its place in the Charter, two distinct implications follow as to the application of
the principle of anticipatory self-defense. First, if a State uses force and claims it as an act of
anticipatory self-defense post hoc, then it must prove to the Council that its act was justified
under that principle. Second, if a State presents a case to act in anticipatory self-defense, prior to
using force, then it must also prove to the Council that its case is justified under that principle.
Moreover, in the latter case, the Security Council would ultimately decide what measures would
be taken. In any event, if force is used – whether in self-defense or not – but not legally justified,
the infringing state must be held accountable to the international community. The above
prescriptions provide a general description of application of anticipatory self-defense. But in
order to properly evaluate claims to the right, we must also understand the conditions that must
be met under it.
Modern Revisions to Anticipatory Self-Defense
The Caroline case revealed the distinction between acts of self-defense in response to actual
armed attacks and acts of self-defense in response to overwhelming necessity, but it did not
include the word imminent. The concept of imminence seems to have been extrapolated from
the Caroline case by the Nuremburg tribunal.38
Although Webster did not include any form of
the actual word “imminent”, the Nuremburg tribunal’s opinion essentially reflects the
fundamental condition initially established by Webster.
Webster’s notion in the Caroline case deals specifically with necessity; the necessity of self-
defense must be “instant”, it must be “overwhelming”, and it must leave “no choice of means
and no moment for deliberation”. Why? What could be so pressing as to cause such a degree of
necessity? Not something that may happen in the near or distant future, but something that is
about to happen, something imminent. Nuremburg understood this fundamental distinction, thus
the condition of imminence was extracted from Webster’s original formula.
According to the US legal theory, the scope of the principle’s focus on the temporal quality
of imminence must be broadened to include the probability that such a threat will occur.39
The
US legal theory considers the past behavior of the threatening State as relevant in determining
the likelihood that the State will attack. In addition to the revision of probability, the US legal
theory asserts that the threatened magnitude of harm must also be relevant. Moreover, the US
36
Id. art. 51.
37
Ingrid Detter, THE LAW OF WAR, 2nd
ed., at 86 (2002).
38
Supra note 12, at 572 (The tribunal stated that Germany’s invasion of Norway in 1940 was not defensive because
it was unnecessary to prevent an “imminent” Allied invasion.)
39
Id.

legal theory recommends that States should consider the window of opportunity that may be
available to guard against an attack before it is too late.
With each revision, the US legal theory attempts to insert into the principle of anticipatory
self-defense a quality of probability. But, Webster’s notion is incompatible with probability, for
probability precludes the fundamental quality of imminence. Whereas, imminence means that
something is about to happen, probability means that something may or may not happen,
therefore the amendments subvert the notion’s fundamental condition of certainty.
Moreover, the US legal theory overtly attempts to diminish the importance of the temporal
quality of Webster’s notion when, ironically, it seems to be the only quality of the notion that
relates to the addition of probability. In other words, one could claim that while imminence
admits that something will happen, it does not tells us exactly when it will happen, only that it is
about to happen. And since the word about is inherently uncertain, it seems that imminence does
have an uncertain quality. However, by Webster’s terms it is obvious that the temporal quality
of the threat is certain and not probabilistic, for Webster stipulates that no option but force
should be left.
Evolution of Imminence
As revealed above, the Nuremburg tribunal’s extrapolation of the condition of imminence
does not support that claim that imminence has evolved over time. Nevertheless, the US legal
theory assumes as much.40
This assumption is based on a very reasonable, but ultimately
problematic, principle. The principle states that the degree of proximity required by the
condition of imminence must be proportionate to the severity of the threat and the speed with
which an attack could be launched.41
Essentially, the principle asserts that since modern threats
can cause extensive destruction very rapidly, the rule should no longer require that the threat be
looming. Whereas imminent threat traditionally means about to happen, this revision could
potentially include threats that may emerge at any point in the future. Therefore, if the degree of
proximity becomes flexible in this way, the act of determining the existence of an actual threat
will become more difficult and subjective (All the more reason for the Security Council to hold
onto its authority under Article 39).
For example, pursuant to this principle, the US legal theory asserts that in light of modern
technology the degree of potential harm has dramatically increased, and the importance of the
temporal factor has diminished.42
In accordance with the same principle, Julian Knowles states,
“The prospect of widespread damage from the clandestine delivery of a weapon of mass
destruction [has] created an immediate need to destroy any possibility of an eventual attack.”43
In response, Professor Warbick states,
40
Id.
41
Julian Knowles, The Case For War: In the Matter of an Inquiry into the Legality of the Use of Force by the
United Kingdom against Iraq, at 38 ¶ 13 (Oct. 9th
, 2002). Reprinted in The Case Against War: The Essential Legal
Inquiries, Opinions and Judgments Concerning War in Iraq, The Legal Inquiry Steering Group. George Farebrother
and Nicholas Kollerstrom eds., September 2003.
42
43
Accord Colin Warbick, Adjudication of Professor Colin Warbick: Legal Inquiry into a Prospective Use of Force
by the United Kingdom against Iraq, at 53 (Oct. 30th
, 2002). Reprinted in The Case Against War: The Essential
Legal Inquiries, Opinions and Judgments Concerning War in Iraq, The Legal Inquiry Steering Group. George
Farebrother and Nicholas Kollerstrom eds., September 2003.

On this basis there would be no need even to show that the other State presently had the capacity
to attack (that is, that it actually had any weapons), only that it was seeking to get them and, if it
did, it had the intention to use them against the defending State. Mr. Knowles's analysis would
put all the weight on intention (though he did not concede that there was no evidence of a present
capability of Iraq to deliver a biological or chemical weapons attack).
44
Warbick provides two reasons as to why anticipatory self-defense developed against this specific
principle. First, Warbick states, “Even if a State develops weapons in breach of a treaty, say the
Nuclear Non-proliferation Treaty, there is no right in international law for a State to use forcible
counter-measures against the wrong-doing State by reason of the illegality alone.” Second,
Warbick argues, “The very danger on which he [Knowles] places so much weight is increased if
an attack by one State, assertedly [sic] in self-defense to pre-empt the other's use of weapons of
mass destruction, precipitates an exchange of these weapons. On such is the whole theory of
deterrence based.”
Regardless, the US still claims that the concept of imminence should be adapted. According
to the US legal theory, State practice demonstrates the evolution of the concept of imminence.
The US legal theory provides three separate examples in which the United States used military
force in what it claimed to be anticipatory self-defense, and in each case the conditions were not
so imminent, thus potentially lending to the assertion that the notion of imminence has evolved
over time.
1. 1986 Strikes Against Libya
The United States justified its April 1986 strikes against Libya as acts of anticipatory self-
defense that were necessary to prevent future terrorist attacks.45
However, the US admits that
nine countries, including two permanent Members, supported a draft resolution that condemned
the attack as a violation of the UN Charter.46
Nevertheless, the US legal theory asserts that the
six votes cast in opposition to that draft resolution, support the claim that the notion of
imminence has evolved to include the prevention of “future terrorist attacks.”47
Yet, during the
debates of the draft resolution, France, Denmark, and Australia, the only Members besides the
United States who spoke against the draft, all asserted that the reason they would not support the
draft was because it was unbalanced; interestingly, not because the draft wrongfully condemned
the US action.48
Moreover, both Denmark and France were clear to distance themselves from
44
Id.
45
See Letter to the Speaker of the House of Representatives and the President Pro Tempore of the Senate on the
United States Air Strike Against Libya (Apr. 16, 1986), 1 Pub. Papers of Ronald Reagan 478 (1986).
46
47
Id.
48
See U.N. SCOR, 41st
Sess., 2682nd
mtg. U.N. Doc. S/PV.2682 (1986), at 32 (The Danish delegate asserted: “My
delegation will not be able to support the draft resolution before us since it does not reflect appropriately the
complex of issues with which the Council is confronted. No attempt had been made in the draft to address the inter-
relationship between action and reaction which has been at play.”); see also at 33 (The Australian delegate asserted:
“In my statement on 16 April, I said that a peaceful resolution of the situation would involve, as an essential
condition, that the Government of the Libyan Arab Jamahirija terminate its involvement in terrorist activities and
that the United States should desist from further military action against Libya. In the opinion of the Australian
delegation the draft resolution has not approached the issue with that same sense of balance. It focuses its criticism
on one party, the United States. While it does address the issue of terrorism, it does not directly address the actions
of Libya.”); see also at 42 (The President pro tempore of the Security Council, acting in his capacity as the
representative of France asserted: “The French delegation believes that the text on which the Security Council is to
take a decision is excessive and unbalanced. It notes in particular that Libyan responsibility is not mentioned
therein. For those reasons, my delegation feels that the text is not acceptable and will vote against the draft
resolution.”)

the US attack; with Denmark citing the US disproportionate attack as grounds for that
maneuver.49
In addition, Mr. Ahmet Engin Ansay, acting Permanent Observer to the United Nations of
the Organization of the Islamic Conference (OIC), made it clear that United States’ attack on
Libya was an act of aggression in direct opposition to the requests of the OIC and the provisions
of the United Nations Charter.50
Moreover, Mr. Ansay was clearly aware of the dangerous
precedent the US action could set, thus stating, “It is therefore incumbent on the international
community to take measures to ensure that such acts are not repeated.”51
Furthermore, many
Council members were also clear to express their concern over the “dangerous precedent” that
the United States action could set.52
Although the US legal theory asserts that the US used force against Libya to prevent future
terrorist attacks, according to Mr. Walters, the Permanent Representative of the United States to
the United Nations, the US attack was an act of self-defense in response to attacks upon its
nationals; presumably in response to the bombing of a discotheque in Berlin in which two US
nationals were killed.53
Indeed, this seemed to be the consensus among other Council members
49
See id. at 32 (The Danish delegate asserted: “Reaction to terrorism must be proportionate in order to stand a
chance to achieve its goal without leading to a dangerous escalation of violence. My Government therefore had to
distance its self clearly from and deeply deplore the military action taken by the United States against Libya.”); see
also at 42 (The President pro tempore of the Security Council, acting in his capacity as the representative of France
asserted: “As everyone knows, the French Government considered that it should not associate itself with the United
States intervention against Libya.”)
50
Supra note 48, at 11 (Mr. Ansay asserts: “The Conference called upon the Government of the United States to
rescind its threats and provocations, military movements and economic measures against the Libyan Arab
Jamahiriya. The United States Government chose to ignore the appeals of the States [sic] members of the
Organization of the Islamic Conference and a large number of nations all over the world, and carried out provocative
and unwarranted activities in the Gulf of Sidra. In a statement issued on 27 March, Mr. Syeed Sharifuddin Pirzada,
Secretary-General of the Organization of the Islamic Coference, strongly condemned the entry of United States
naval forces into the Gulf of Sidra and called upon the United States Government to refrain from actions liable to
aggravate the situation and to pose a threat to international peace and security. A number of States which believe in
the inadmissibility of force and military means to resolve differences between States counseled the United States
against resorting to force aginst the Jamahiriya. The United States, however, blatantly snubbed all those efforts and
mobilized its full military might against Libya. Most recently, in a statement issued on 15 April, immediately after
the United States armed attack, the Secretary-General of the Organization of the Islamic Conference condemned the
aggression and described that act against the territorial integrity and sovereignty of the Libyan Arab Jamahiriya as a
gross violation of the United Nations Charter and the principles of international law.”)
51
Id. at 13.
52
Id. at 8 (The Pakistani delegate asserted: “The [US] action against Libya can create a dangerous precedent which
can have serious ramifications. States would feel encouraged to take the law into their own hands and decide
unilaterally to deal punishment for perceived lapses.”); see also at 17 (The Ugandan delegate asserted: “My
delegation is concerned about the dangerous precedent which this latest action sets. As members of the Council are
aware, South Africa, under the pretext of fighting terrorism, has been mounting constant acts of aggression against
front-line States. There is a grave danger that the latest United States action might be viewed as providing South
Africa with the example to emulate and justify its sinister designs against peace-loving African neighbors.”); see
also at 47 (The Soviet delegate asserted: “Such arbitrary action in international relations can lead only to their total
disruption and to a sharp increase in the threat to universal peace.”)
53
Id. at 31 (The US delegate asserted: “If the inherent right of self-defense, specifically recognized in Article 51 of
the Charter, does not include the right to protect one’s nationals and one’s ships, what does it protect? The idea that
a State should be condemned for seeking to protect the lives of its nationals who are subject to armed attack is too
absurd for further comment.”)

as well.54
In light of this, many Council members still maintained the view that the US action
was not justified under Article 51 as self-defense.55
For example, the Ugandan Delegate asserted,
Article 5l of the Charter does not give unlimited freedom to strike at another State in the name of
self-defense. The purpose of the Article is to grant the right of self-defense to any United Nations
Member State, which is actually being attacked, until the Security Council can take appropriate
action. The evidence thus far proffered does not persuade us that an armed attack within the
meaning of Article 5l had taken place that warranted the resort to the use of force.
56
In addition, the Ugandan delegate made clear that the attack on the disco occurred on German
soil and that Germany did not feel compelled to resort to force, thus implying that the decision to
resort to force belong to Germany, not the United States.57
Moreover, the Ugandan delegate
noted that the Security Council was already deliberating on the matter,58
thus lending to the
belief that even if the US had a right to self-defense, it would have been restricted under Article
51.59
2. 1989 Invasion of Panama
The United States justified military action it took against Panama on December 20th
, 1989 as
self-defense stating that it was “necessary to protect American lives in imminent danger.”60
However, the US admits that the Security Council considered a draft resolution that labeled the
US invasion of Panama as a flagrant violation of international law.61
When it came to voting on
the draft, ten States voted in favor, four against, and one abstained. Interestingly, the record
shows that both France and the Untied Kingdom did not show clear support for the US actions.62
For instance, the French delegate expressly stated, “Noting that foreign intervention had taken
place, we stated that we found recourse to the use of force regrettable and that it could not be
54
Id. at 14 (The Ugandan delegate asserted: “The United States, citing the bombing of a discotheque in West Berlin,
invoked Article 51 of the Charter to try to justify its action, claiming the inherent right of self-defense.”); see also at
38 (In which the Thai delegate notes that the Berlin discotheque bombing led to the present crisis.)
55
Id at 6 (In which the Pakistani delegate cites the Prime Minister of Pakistan: “The Government and the people of
Pakistan share the profound grief of the people of Libya at the unwarranted action taken by the United States
Government…I urge an immediate halt to unlawful acts and the prevention of escalation which would pose a serious
threat to the maintenance of peace and security.” The Pakistani delegate also asserted: “He [the Pakistani Foreign
Prime Minister] said that this unilateral resort to force contravened the principles of the Charter of the United
Nations.”); see also 46 (The Soviet delegate asserted: “Throughout the world the actions of the United States
administration are being widely condemned. It is clear to the whole world that the armed attack by the United States
on Libya was direct aggression against a sovereign State, a glaring violation of the universally accepted norms of
international relations and of the United Nations Charter, which directly forbids the use of force against any State.”)
56
Id. at 16
57
Id. (The Ugandan delegate asserted: “It is also noteworthy that the act complained of - that is, the bombing of a
discotheque in West Berlin - occurred in a third state which itself did not feel compelled to resort to force.”)
58
Id. (The Ugandan delegate asserted: “Since the Security Council had started deliberation on the situation, it was
our hope that all sides in the dispute would show restraint so that the Council’s efforts might result in the easing of
tension and the restoration of peace in the region. Thus, it is all the more regrettable to us that force was used at the
very time the Council was seized of the situation.”)
59
Accord UN Charter art. 51.
60
See Letter to the Speaker of the House of Representatives and the President Pro Tempore of the Senate on the
United States Military Action in Panama (Dec. 21, 1989), 2 Pub. Papers of George Bush 1734 (1989) (“The
deployment of U.S. Forces is an exercise of the right of self-defense recognized in Article 51 of the United Nations
Charter and was necessary to protect American lives in imminent danger”).
61
Supra note 12, at 573; see also UN Doc. S/21048 (Dec. 22, 1989); see also U.N. SCOR, 44th
Sess. 2902nd
mtg.
passim, UN Doc. S/PV.2902 (Dec. 23, 1989).
62
See U.N. SCOR, 44th
Sess. 2902nd
mtg., at 21 and 22 respectively, U.N. Doc. S/PV.2902 (Dec. 23, 1989).

approved as such.”63
Interestingly, both France and the United Kingdom, just as they did during
the 1986 Libya incident, stated that their negative votes were due to the unbalanced nature of the
draft resolution, not because the draft wrongfully condemned the US action.64
3. 1998 Attacks Against Afghanistan and Sudan
In 1998, the United States launched cruise missile attacks against terrorist training camps in
Afghanistan and pharmaceutical plant in Sudan asserting, “These strikes were a necessary and
proportionate response to the imminent threat of further terrorist attacks against U.S. personnel
and facilities.”65
The US asserts that no formal action was taken by the Security Council in-
response to this action.66
However, silence does not mean that the Council approved of the US
action.67
In the case of Sudan; the US bombed a human and veterinary medicine factory located in
Khartoum. On August 21, 1998, the Permanent Representative of the Sudan informed the
President of the Security Council that the factory was privately owned and financed by Sudanese
investors and by the Bank of the Preferential Trade Area (PTA) of the Common Market for
Eastern and Southern Africa (COMESA). 68
In addition, the Sudanese Ambassador stated that
the factory’s output had been providing 50 percent of Sudan’s demand for human medicine,
including basic and life-saving medicines. Moreover, he made the President aware that many
foreign officials and ambassadors assigned to Khartoum had visited the factory and regarded it as
a model of joint regional investment and funding.
Nevertheless, the US claimed that the factory was owned by Osama bin Laden, and that it
had been producing chemical weapons and poisonous gases used for terrorist purposes.
However, according to the Sudanese State Minister of Foreign Affairs, the United States
Government had no evidence to support its allegations. In addition, he stated that the United
States Government was frequently reluctant to cooperate with Sudan to submit evidence
supporting its claims. Moreover, he stated that despite the ongoing communication between the
Sudan and the US as well as the numerous allegations made by the US against Sudan, the US
never expressed any doubt or made any accusation concerning the factory.69
Although the Security Council took no formal action, much opposition to the US actions
existed. For example, the General Assembly issued a press release stating,
The Minister for External Relations of the Sudan, Mustafa Osman Ismail, told the General
Assembly this morning that the bombing of the El-Shifa pharmaceutical plant in the Sudan by the
United States was a "grave act of terrorism", as heinous and cowardly as the bombings in Nairobi
and Dar es Salaam.
70
63
Id. at 21.
64
Id. (The French delegate asserted: “France could only oppose the draft resolution…being too unbalanced.”); at 22
(The UK delegate asserted: “My delegation voted against the draft resolution on the situation in Panama because of
the draft’s seriously unbalanced nature.”)
65
See Letter to Congressional Leaders Reporting on Military Action Against Terrorist Sites in Afghanistan and
Sudan (Aug. 21, 1998), in Clinton Papers, supra note 40, at 1464 (1998) (“These strikes were a necessary and
proportionate response to the imminent threat of further terrorist attacks against U.S. personnel and facilities. These
strikes were intended to prevent and deter additional attacks by a clearly identified terrorist threat.”).
66
67
See Lobel & Ratner, supra note 21, at 130. (Stating that inferences of Security Council authorization from the
silence of the Council undermines the Charter.)
68
See Letter Dated 21 August 1998 From the Permanent Representative of the Sudan to the United Nations
Addressed to the President of the Security Council, ¶ 1, 2.
69
Id. ¶ 4, 5, 6.
70
See U.N. G.A. Press Release, GA/9457 Sept. 29 1998, available at http://www.un.org/News/Press/docs/1998/
19980929.ga9457.html

In addition, the Permanent Representative of Sudan to the United Nations provided a letter to the
President of the Security Council from the Sudanese Minister of State of External Relations,
which labeled the US action as an “iniquitous act of aggression,” and stated “[it] is a clear and
blatant violation of the sovereignty and territorial integrity of a Member State of the United
Nations, and is contrary to international law and practice, the Charter of the United Nations and
civilized human behavior.”71
In addition, the Charge d’affaires of the Permanent Mission of Kuwait to the United Nations
provided to the Security Council a statement by the Secretariat of the League of Arab States,
which stated, “The Secretariat considers this unjustified act a blatant violation of the sovereignty
of a State member of the League of Arab States, and of its territorial integrity, as well as against
all international laws and tradition, above all the Charter of the United Nations.”72
Moreover, the
League of Arab States presented a draft resolution to the Security Council that would not have
condemned the United States’ action, but rather request the dispatch of a fact-finding mission to
Khartoum to determine the production and ownership of the factory; however the United States
opposed it.73
***
Although showing three separate instances in which the United States claimed a right to
anticipatory self-defense under a lesser degree of imminence, those examples do not prove that
State practice consistently demonstrates an evolving notion of imminence. Quite the opposite in
fact, for those examples actually prove that such practice does not evince agreement among
States regarding the application of anticipatory self-defense.74
In the case of the 1986 attacks on
Libya, it is obvious that the US legal theory is not in the diplomatic record surrounding this
event. Rather than providing support for the US legal theory, this incident shows that the United
States’ claim to self-defense was strongly condemned by the international community.
In the case of the 1989 attack on Panama, the record shows that a majority of States were in
opposition to the US action. As for the 1998 attack on Khartoum, though no formal action was
taken, records indicate that a majority of States, particularly among the Arab League, were in
express opposition to the US action. Moreover, those examples do not show practice among
States, rather they show the practice of one State attempting in each case to use the international
system to obtain legitimacy for its actions, and using its veto power to block resolutions aimed at
denying it the legitimacy it seeks to obtain. In light of all this, it seems very unreasonable to
claim that these examples evince agreement among States that the concept of imminence has
evolved over time. Therefore, at this point, the US legal theory’s claim to anticipatory self-
defense fails, for it rests upon the false assumption that state practice prior to the invasion
supports the notion of a broadened scope of imminence.
71
Supra note 68, at ¶ 2.
72
See Letter Dated 21 August 1998 From the Charge d’affaires a.i. to the Permanent Mission of Kuwait to the
United Nations Addressed to the President of the Security Council, at ¶ 2.
73
Supra note 70.
74
Accord Cassese, supra note 31, at 309.

Preventive Action
With the advent of nuclear weapons and other sophisticated weapons-technology, attacks can
occur more rapidly and with a greater magnitude of destruction, thus imminent threats can
emerge more quickly. Granted, though the proposed revisions do not fit the condition of
imminence as set forth in the Caroline test, it is necessary to adapt the law to meet these modern
challenges. However, this does not mean that the Caroline test should be replaced (It is
significant that the US legal theory attempts to build upon the Caroline test rather than replace it
all together.) Instead, we should keep the Caroline test as the determining factor for claims to
anticipatory self-defense, and we should recognize the existence of an emerging test for a second
type of preemptive action, that of prevention. The distinguishing factor between anticipatory
self-defense and prevention is the condition of probability. Whereas the former deals with
imminent threats that are about to occur, the latter deals with probable threats that may or may
not occur.
However, it is important to note that this second type preemptive action should not be
considered an act of self-defense. For example, if someone tried to punch me and I blocked that
person’s punch, I would have acted in defense of almost getting punched. My act of blocking
that person’s punch was a defensive maneuver aimed at repelling the threat. Thus, with my
defensive aim, I made a defensive act. However, in prevention, there is no threat of almost being
punched, just the possibility of being punched. For example, after thinking to myself while
standing next to someone, “That person could punch me,” I bind together that person’s wrists,
rending his arms useless, thus forestalling getting punched. Since I didn’t face the threat of
almost being punched, my act of binding together that person’s wrists was offensive not
defensive. In this case with my defensive aim, I made an offensive maneuver. This example
shows that acts of prevention are offensive acts – not defensive - and merely have defensive
aims. Thus, instead of preventive self-defense, it is more appropriate to call it preventive action
or preventive force. This distinction is significant given that strategic use of appellation in
politics has proved to have a commanding influence over the public’s perception of policy.
If claims to preventive action can be legitimate, then why didn’t the US justify the invasion
in preventive terms? Why did the US argue that its preventive action was justified as
anticipatory self-defense because imminence has evolved over time, rather than just arguing that
the invasion was justified as prevention? Ostensibly, this is because by arguing that anticipatory
self-defense has evolved to include preventive action, the US could then claim that it was
justified in taking unilateral action; for anticipatory self-defense implies the authority of
unilateralism, whereas preventive action cannot legally be taken unilaterally. The nature of
preventive action precludes unilateralism because in the Post-Charter Era, the authority to
determine the existence of threats and what measures to take in response has been expressly
vested in the Security Council.

A Case for Preventive Action
Although an offensive act, preventive action has defensive aims, and thus should be used in
accordance with the general rules governing self-defense.75
Essentially these rules stipulate that
the use of force can be justified as self-defense where,76
1. An armed attack is launched or is immediately threatened
2. There is an urgent necessity for defensive action against that threat
3. There is no plausible alternative to force and no other State or authority, which has the legal
powers to stop or prevent the infringement, does not or cannot, use them to that effect
4. The use of force is limited to what is necessary to stop or prevent the infringement
However, the nature of prevention requires that these general rules be slightly modified. The
first condition must be loosened to include possible threats. This would leave the burden on the
acting state to show the existence of an emerging threat.77
The second, third, and forth
conditions, would require the State to show that the emerging threat necessitates defensive
action, that no other alternative to force exists, and that the use of force would be proportionate
to the threat. While admittedly seeking to take offensive action, if a case for preventive action
were deemed justified, the act would be considered defensive.
Authority To Determine Threats To The Peace
The revisions posed by the US legal theory fit well with these conditions and work to put
them in more practical terms. For example, in order to determine whether or not an emerging
threat necessitates preventive action, the US legal theory advocates that we consider the past
behavior of that potentially threatening State and bear in mind that State’s propensity to make
war, as well as the potential magnitude of harm that the State is willing and capable of
producing. Moreover, the US legal theory advocates that we consider the available window of
opportunity, which may help in determining whether or not force is really necessary or perhaps
the only means of dealing with that threat.
For all practical purposes, these revisions are extremely valuable in creating a workable test
for cases of prevention. However, the US legal theory falls short in the most crucial way, for it
does not provide any method to determine the existence of an emerging threat. During the Pre-
Charter Era, it was a State’s sovereign right to determine the existence of threats to its own
security. However, in the Post-Charter Era, that right has been vested in the Security Council
alone. Article 39 of the Charter explicitly states, “The Security Council shall determine the
existence of any threat to the peace, breach of the peace, or act of aggression.”78
Yet, with the
Article 51 exception, the extent to which that right has been taken from States and given to the
Council remains unclear. For while the Charter of the United Nations recognizes that States
have an inherent right of individual and collective self-defense against an armed attack, Article
51 does not stipulate as to whether or not States have the authority to determine if such an attack
has occurred. This is inherently problematic, for having the right to take action in self-defense
implies the ability and or authority to determine if defensive action is warranted. Thus, Article
75
Accord Rabinder Singh QC and Janet Kentridge, The Case Against War, Oct. 8th
, 2002, at 15. Reprinted in The
Case Against War: The Essential Legal Inquiries, Opinions and Judgments Concerning War in Iraq. The Legal
Inquiry Steering Group. George Farebrother and Nicholas Kollerstrom eds., September 2003.
76
77
78
UN Charter art. 39.

51 seems to have delegated away the authority granted to the Council under article 39. Although
such authority is not expressly delegated to states, without a plausible alternative, this must be
the case.
However, a more plausible alternative is that Article 51 does not delegate any authority to
States; rather it provisionally allows States to make necessary judgments. That Article 51 does
not grant rights to States is evinced by the fact that Article 51 is an acknowledgement of a right
that existed before the Charter, not a delegation of a right created under it. In other words,
Article 51 does not grant the right of self-defense to States, it merely preserves that existing
right. Thus, if States are considered to have a right to determine the existence of threats, then
that right must have existed prior to the Charter, and Article 51 could only be viewed as
recognizing that right, not creating it. However, any right – existing prior to the Charter – that
authorizes States to determine the existence of a threat to one’s security, must be viewed as
impliedly preserved and must stand in the face of an express provision investing that right solely
within the Security Council.
However, Article 39 should not be read as requiring a Security Council determination before
a State can defend itself against an actual attack.79
By acting in self-defense, a State has not
necessarily made an authoritative determination that an attack has occurred.80
On the contrary, it
means only that it has acted in what it claims as self-defense in response to what it asserts as an
armed attack, for the Security Council will ultimately judge the validity of any claim to the use
of force.
Implications for the US legal theory
Given that Iraq was not attacking or planning to attack the US prior to the invasion, it cannot
be reasonably asserted that Iraq posed an imminent threat as required by the Caroline Test, thus
the invasion cannot be justified as anticipatory self-defense. Yet, the invasion could have been
justified as a preventive action if the Security Council determined that Iraq posed a threat and if
it expressly authorized preventive force. On February 5th
, 2003, the U.S. presented such a case
against Iraq before the Security Council, but the Council was not persuaded. Nevertheless, the
US still invaded Iraq. Since preventive action can only be taken pursuant to Security Council
authorization and the US did not secure such a resolution, their invasion cannot be legally
justified as prevention.
However, the use of force in self-defense could be justified if the Security Council was
unable to stop or prevent an infringement by the emerging threat.81
Thus, it is possible that if the
US brought its case before the Security Council, and the Security Council failed or was unable to
act, then the US may be justified to use force. However, this condition refers to actual attacks
and imminent threats; not the type of threats which preventive strikes aim to forestall, thus it
does not lend much support to the US case against Iraq. Moreover, if Council inaction justified a
unilateral or even multilateral use of force, then any Permanent Member could just use its veto
power to disable the Council, thus justifying the use of force. In addition, this would prevent the
Council from functioning in accordance with its Chapter VII powers by taking the monopoly on
79
Supra note 76, at 41-42.
80
Article 51 expressly states that “Measures taken by Members in the exercise of this right of self-defense
shall…not in any way affect the authority and responsibility of the Security Council under the present Charter to
take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
81

force out of its control. Such a practice would lead to a total subversion of the collective security
system, and thus cannot be considered as compatible with the Charter.
C. Prior Security Council Authorization
Factual Background
On August 2nd
, 1990, Kuwaiti Ambassador Abulhasan requested a meeting with the Security
Council to consider the Iraqi invasion of Kuwait, which had occurred that day.82
On that same
day, the United States recognized Iraq’s invasion of Kuwait, Kuwait’s request to convene with
the Security Council, and made its own request for such a meeting.83
With that, the Security
Council convened and adopted onto its agenda the item entitled, “The Situation Between Iraq
and Kuwait.”84
At that meeting, Kuwait condemned Iraq’s actions and called for a peaceful
solution to the conflict, stressing that force should not be used.85
In addition, each of the
speaking Members, save Iraq, individually condemned the Iraqi invasion of Kuwait and
addressed the need for a resolution in response to Iraq’s action.86
Consequently, the Security
Council adopted Resolution 660, which condemned Iraq’s invasion and demanded the immediate
withdrawal of Iraqi military forces from Kuwait.87
Four days later, the Security Council reconvened in response to Iraq’s non-compliance with
SCR 660 and considered a new draft resolution.88
At that meeting, Kuwait reaffirmed the
reasoning behind the adoption of SCR 660, that being the Iraqi aggression against Kuwait, 89
and
called upon the Security Council to pass the new draft resolution.90
The U.S. representative
clearly explained that the new draft resolution was in response to Iraq’s aggression toward
Kuwait and its failure to comply with SCR 660.91
The new resolution was adopted as Resolution
661, and in addition to reaffirming Resolution 660 and demanding once again the withdrawal of
Iraqi forces from Kuwait, SCR 661 placed extensive sanctions on Iraq as means of ending Iraq’s
82
See Letter Dated 2 August 1990 from the Permanent Representative of Kuwait to the United Nations Addresed to
the President of the Security Council, U.N. SCOR, 45th
Sess., U.N. Doc. S/21423 (1990) (writing that “Upon
instructions from my Government, I have the honour to request an immediate meeting of the Security Council to
consider the Iraqi invasion of Kuwait in the early morning of 2 August 1990”).
83
See Letter Dated 2 August 1990 from the Permanent Representative of the United States to the United Nations
Addressed to the President of the Security Council, U.N. SCOR, 45th
Sess., U.N. Doc. S/21424 (1990) (writing that
“In light of the invasion of Kuwait by Iraqi forces and the request of the Permanent Representative of Kuwait
(S/21423), the United States urgently requests an immediate meeting of the Security Council”).
84
See U.N. SCOR, 45th
Sess., 2932nd
mtg., U.N. Doc. S/PV.2932 (1990)
85
Id. at 7 (The Kuwaiti delegate asserted: “The only way to deal with this matter, which has already been dealt with
through all international norms, instruments, and laws – first and foremost the Charter of the United Nations – is to
solve the problem by peaceful means and negotiations, and not through the use of force.”)
86
Id. at 13 (The U.S. delegate asserted: [The U.S. is] “seeking an immediate resolution which would condemn the
Iraqi invasion, call for the immediate unconditional withdrawal of Iraqi troops, and support a process of negotiated
solution to the differences between Iraq and Kuwait”); at 18 (The French delegate asserted: “We unreservedly
condemn the invasion of Kuwait by Iraq and we demand the immediate withdrawal from the territory of Kuwait by
Iraqi forces.
87
S.C. Res. 660, U.N. SCOR, 45th
Sess., 2932nd
mtg., U.N. Doc. S/RES/660 (1990).
88
See U.N. SCOR, 45th
Sess., 2933rd
mtg., U.N. Doc. S/PV.2933 (1991)
89
Id. at 4 (The Kuwaiti delegate asserted: “The Council adopted this resolution [SCR 660] because it believes
unwarranted aggression has been inflicted on one of the members of the international community.”)
90
See id. passim.
91
See id. at 16.

continued aggression against Kuwait.92
Nevertheless, Iraq continued to defy the Security
Council, and for almost four months the international community unsuccessfully used non-
violent measures to resolve the dispute.
After passing eleven resolutions prescribing non-violent means to resolve the dispute, the
Security Council adopted SCR 678, which – at the express request of Kuwait – authorized the
use of force. On January 17th
, 1991 the United States began Operation Desert Storm to compel
Iraqi compliance. About two months later, Operation Desert Storm came to an end. On April
3rd
, 1991, the Security Council adopted Resolution 687, which placed extensive disarmament
obligations on Iraq and, on the condition that Iraq notify the Secretary-General and the Security
Council of its acceptance of those obligations, established a formal cease-fire between Iraq and
Kuwait and the Member States co-operating with Kuwait. In addition, SCR 687 created an
inspections regime that was authorized to oversee Iraq's disarmament. Over the course of about
seven years, Iraq – though cooperative at times – ultimately defied its disarmament obligations,
and in 1998, Iraq ceased all cooperation with the inspections regime. Four years later, the
Security Council adopted SCR 1441, which reaffirmed Iraq’s disarmament obligations and gave
Iraq a final opportunity to comply. Four months later, the US invaded Iraq.
Resolution 678
The US legal theory asserts that the invasion was authorized under Resolution 678. Thus, the
US legal theory assumes that SCR 678 applied to such an action. However, in order for SCR
678 to apply, either the circumstances surrounding the US invasion would have to be similar to
those relating to the adoption of SCR 678, or that resolution would have to be considered so
general an authorization as to apply to a completely different dispute occurring thirteen years
later. 93
An examination of the facts reveals that neither is the case.
The most significant difference between the circumstances surrounding the situation in 1990
and in 2003, is the fact that in 1990 an actual attack by Iraq against a member state occurred,
whereas in 2003 there was no such attack by Iraq. It is evident from the facts that in 1990 the
use of force was authorized because of Iraq’s attack on Kuwait. Before resorting to force, the
Security Council maintained the use of peaceful measures, and it was only after Kuwait’s
request, that force was used. This was not the case in 2003.
Since the situation in 2003 did not warrant the application of SCR 678, the US legal theory
must rely on the assumption that SCR 678 was a general authorization to use force, which of
course is not the case.94
First, it is evident that with SCR 678, the Security Council’s intention
was to provide coalition forces the authority to obtain Iraqi compliance with the relevant
92
See id. at 24 (The Canadian delegate asserted: “The draft resolution now before us, once adopted by the Council,
would nevertheless impose one of the broadest set of sanctions ever put in place against a State Member of the
United Nations. It covers all aspects of military, economic and financial relations with Iraq and occupied Kuwait.”)
93
Supra note 19, at 79 (“[T]he great majority [of Security Council resolutions] deal with a particular situation or
dispute.)
94
Thomas M. Franck, What Happens Now? The United Nations After Iraq, American Journal of International Law,
v. 97, 607–20, at 612 (2003) (arguing that President George H.W. Bush acknowledge that Resolution 678 “did not
connote some expansive further mandate for contingent action against Iraq,” in explaining why the American
military had not pursued Iraqi forces into Baghdad); Lobel, supra note 21, at 140 (“US Officials testified that
Resolution 678 had not granted open-ended authority to occupy Iraq”); Guido den Dekker & Ramses A. Wessel,
Military Enforcement of Arms Control in Iraq, Leiden Journal of International Law, v. 11, 497–511, at 508 (arguing
that it can never have been the intention of the provision in SCR 678 to give an unconditional, unlimited, and
unending authorization to use military force).

resolutions and, most importantly, to oust Iraq from Kuwait, not to grant a general authorization
to attack Iraq and to achieve goals established after the cease-fire.95
Speaking prior to the
adoption of SCR 678, Kuwait stated that SCR 678 authorized the use of force in order to
implement the resolutions of the Council.96
Speaking immediately after the adoption of SCR
678, the Malaysian representative stated,
It must be underlined that this resolution [SCR 678] does not provide a blank check for excessive
and indiscriminate use of force. The Council has certainly not authorized actions outside the
context of its resolutions 660 (1990), 662 (1990) and 664 (1990). Malaysia warns against any
action purportedly taken under this resolution that would lead to the virtual destruction of Iraq.
97
In addition, the UK representative stated that the international community was only intending to
obtain, “the reversal of the aggression – namely, full compliance with previous resolutions.”98
Thus, it is evident by their interpretations that the Security Council understood that SCR 678 was
not a general use of force authorization and was only adopted for the specific objective of
compelling Iraqi compliance with the Council’s resolutions.
Second, it is evident that SCR 678 was not a general authorization for key Coalition members
confirmed as much after the war. For example, writing in 1995, US Secretary of State James
Baker asserts,
To this day, controversy endures over whether coalition forces should have continued their
offensive all the way to Baghdad and toppled Saddam’s regime. I believe this idea is as
nonsensical now as it was then, and not merely for the narrow legalistic reason that the UN
resolutions did not authorize coalition forces to undertake anything beyond the liberation of
Kuwait.
99
Even President George H.W. Bush confirmed this position stating that, “The UN resolutions
never called for the elimination of Saddam Hussein. It never called for taking the battle into
downtown Baghdad.”100
Moreover, on June 26th
1991, two Bush Administration officials
testified before Congress essentially stating that Resolution 678 had not granted open-ended
authority to occupy Iraq.101
What is even more telling is that during the adoption of resolution
687, after the majority of military activities had ended, Kuwait admitted that the use of force
authorization was only for narrow purposes asserting that, “[Resolution 678] related only to the
withdrawal of Iraqi forces from Kuwait and the restoration of the legitimate authorities.”102
In
addition, Kuwait expressly criticized the coalition forces for going beyond the use of force
authorization.103
95
See Dekker & Wessel, supra note 94, at 503 (arguing that the authorization to use force “was not unlimited, but
explicitly linked to the liberation of Kuwait).
96
See U.N. SCOR 45th
Sess., 2963rd
mtg., at 17-8, U.N. Doc. S/PV.2963 (1990) (arguing that the purpose of the
resolution was to put an end to Iraq’s naked defiance and inadmissible opposition to the will of the international
community).
97
Id. at 76-77.
98
Id. at 82 (“The international community has added today to its demands. It is not asking for anything except the
reversal of the aggression – namely, full compliance with the previous resolutions. But that reversal and that
compliance the international community intends to obtain.”)
99
James A. Baker, III, THE POLITICS OF DIPLOMACY, at 436 (1995).
100
Remarks to the American Society of Newspaper Editors, 1992 PUB. PAPERS, at 568 (Apr. 8, 1992).
101
Testimony of Assistant Secretary of State John Kelley and Assistant Secrtary of Defense Henry Rowen before
the European and Middle East Subcommittee of the House Committee on Foreign Affairs, Federal News Service, at
151 (June 26, 1991) available in Lexis, News Library, Fednew File.
102
U.N. SCOR, 46th
Sess. 2981st
mtg., at 26 U.N. Doc. S/PV.2981 (1991).
103
Id. at 26 (The Kuwaiti delegate asserted: “I should like to state here that the actions of the United States and its
partners during their military operations against Iraq went far beyond Security Council resolution 678.”)

Moreover, SCR 678 was adopted for the particular situation between Iraq and Kuwait and
thus can only be seen as authorizing the use of force in response to that conflict. In cooperation
with Kuwait, the Security Council determined that the use of force was necessary. If it is the
case that with SCR 678 the Security Council delegated a use of force authorization that was so
general so as to allow individual Member States to determine for themselves whether or not
force is necessary, then the Security Council would be considered to have acted ultra vires.104
It
is the Security Council’s sole authority to determine if force is necessary and it cannot delegate
that authority to states.
Furthermore, a close examination of the actual text of SCR 678 reveals that it cannot be
applied to the US 2003 invasion of Iraq for the US was not, as SCR 678 stipulates, “Co-
operating with the Government of Kuwait,” at the time of its invasion.105
In 1991, there was
direct correspondence between Kuwait and the United States detailing their cooperation in
implementing the relevant resolutions. For example, in a letter dated January 17th
, 1991 from the
Permanent Representative of Kuwait to the United Nations and addressed to the President of the
Security Council, Mohammad A. Abulhasan wrote,
Kuwait wishes to inform you that it is exercising its right to self-defense and to the restoration of
its rights, first and foremost among which is the recovery of its territories, occupied by Iraq since
August 2nd
, 1990. In doing so, the Kuwaiti forces are co-operating with the forces of fraternal
and friendly States which are equally determined to end the obdurate Iraqi occupation.
106
This letter is direct evidence that Kuwait understood the United States’ military support to be in
co-operation with the government of Kuwait to end the Iraqi occupation. Likewise, in a letter
dated January 17th
, 1991 from the Permanent Representative of the United States to the United
Nations and addressed to the President of the Security Council, Thomas R. Pickering wrote that
the United States had, “Deployed military forces to the Persian Gulf region in response to
requests from Governments in the region, including Kuwait and Saudi Arabia” [emphasis
added].107
This is evidence that the US understood that its military support was requested by
Kuwait and merely in response to such a request. Moreover, Ambassador Pickering also noted
that the military forces of the United States were “Co-operating with the Government of
Kuwait.”108
However, in 2003, no such communication was sent by Kuwait to the Security Council, nor
did the United States indicate that Kuwait had requested assistance, or that those states were
acting in cooperation with Kuwait.109
Moreover, during a United Nations Security Council
104
See Murphy, supra note 34, at 208, footnote 148 (See generally T.D. Gill, Legal and Some Political Limitations
on the Power of the UN Security Council to Exercise its Enforcement Power Under Chapter VII of the Charter,
Netherlands Yearbook of International Law, v. 26, at 33 (1995) examining the limitations upon the Security
Council’s power under the UN Charter; Ebere Osieke, The Legal Validty of Ultra Vires Decisions of International
Organizations, American Journal of International Law, v. 77, at 239 (1983) examining the legal status of acts and
decisions of international organizations adopted in excess of their authority).
105
See Murphy, supra note 34, at 185 (arguing that the US legal theory is unpersuasive for the US was not, as SCR
678 stipulates, cooperating with Kuwait).
106
See Letter Dated 17 January 1991 from the Permanent Representative of Kuwait to the United Nations Addressed
to the President of the Security Council, U.N. SCOR, 46th
Sess., U.N. Doc. S/22094 (1991).
107
See Letter Dated 17 January 1991 from the Permanent Representative of United States to the United Nations
Addressed to the President of the Security Council, U.N. SCOR, 46th
Sess., U.N. Doc. S/22090 (1991).
108
Id. (stating that US and coalition forces, “cooperating with the Government of Kuwait,” had initiated military
action against Iraq.)
109
See Murphy, supra note 34, at 185 (“No such communication was sent by Kuwait to the Security Council, nor
did Australia, the United Kingdom, or the United States indicate in their communications to the United Nations
either that Kuwait had requested assistance or that those states were acting in cooperation with Kuwait.”)

meeting held on March 27th
, 2003, Kuwait told the Security Council that, “The State of Kuwait
reaffirms that it has not participated and will not participate in any military operation against
Iraq.”110
These instances sharply contrast to the concerted efforts of Kuwait and the United
States in 1991, and cast doubt on any claim that the US was co-operating with Kuwait when it
began its 2003 invasion of Iraq.
In addition, SCR 678 cannot be applied to the US 2003 invasion of Iraq for the US assistance
was not requested by Kuwait or any other state who had the right to make such a request. In
Nicaragua v. United States of America, the International Court of Justice stated,
At all events, the Court finds that in customary international law, whether of a general kind or
that particular to the inter-American legal system, there is no rule permitting the exercise of
collective self-defense in the absence of a request by the State which regards itself as the victim
of an armed attack. The Court concludes that the requirement of a request by the State which is
the victim of the alleged attack is additional to the requirement that such a State should have
declared itself to have been attacked.111
In Resolution 661, the United Nations Security Council affirmed the inherent right of individual
or collective self-defense, in response to the armed attack by Iraq against Kuwait. Recall that, in
the Kuwaiti Letter Dated January 17th
, Abulhasan wrote that Kuwait was exercising its right to
self-defense to end the Iraqi occupation of Kuwait. And recall that, in the US Letter Dated
January 17th
, Pickering wrote that the United States had deployed its military forces in response
to Kuwait’s request. In accordance with the ICJ’s ruling, Kuwait declared that it had been
attacked, and in self-defense, requested, as the victim, the support of third party states. However,
in 2003 there was no declaration or request by Kuwait to the United States or any other third
party states. Furthermore, prior to the invasion, there was no such attack or reason that would
have permitted Kuwait to utilize the right of self-defense, and thus make such a request.
Therefore, by invading Iraq in 2003 without such a request, the United States violated customary
international law as described by the ICJ.
Resolution 678 & 687
By arguing that the 2003 invasion of Iraq was authorized under SCR 678 to compel Iraqi
compliance with Resolution 687, the US legal theory assumes that SCR 678 authorized the use
of force for such a purpose. However, a close reading of its text reveals that SCR 678 did not
authorize the use of force to compel compliance with SCR 687. By its very text we can see that
SCR 678 did not include SCR 687. In the preamble of Resolution 678, the Security Council
recalled and reaffirmed resolutions 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677,
and noted that, “Despite all efforts by the United Nations, Iraq refuses to comply with its
obligations to implement resolution 660 and the above-mentioned subsequent relevant
resolutions” [emphasis added]. In the operative paragraphs of Resolution 678 and acting under
Chapter VII of the Charter, the Security Council,
1. Demanded that Iraq comply fully with resolution 660 and all subsequent relevant resolutions
[emphasis added], and
2. Authorized Member States co-operating with the Government of Kuwait, unless Iraq on or
before January 15th
, 1991 fully implements, as set forth in paragraph 1 above, the above-
mentioned resolutions, to use all necessary means to uphold and implement resolution 660 and
110
U.N. SCOR, 58th
Sess., 4726 mtg. at 14, U.N. Doc. S/PV.4726 (2003).
111
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), I.C.J., at 105 ¶ 199
(Judgment of June 27, 1986). Available at http://www.icj-cij.org/docket/files/70/6503.pdf

all subsequent relevant resolutions and to restore international peace and security in the area
[emphasis added].
By using the same language throughout, the Security Council is clear as to which resolutions it
meant to address. Resolution 678 is concerned with gaining Iraqi compliance with those
resolutions relating to the situation between Iraq and Kuwait, beginning with Resolution 660 and
ending with Resolution 677, and authorized the use of force to gain compliance with only those
resolutions.112
Nothing in the text of Resolution 678 makes mention of SCR 687.
Furthermore, by considering the time involved we can see that it would have been
unreasonable for SCR 678 to include SCR 687. Resolution 678 authorized the use of force
unless Iraq, on or before January 15th
, 1991, fully implemented the relevant resolutions. Since,
Resolution 687 was adopted on April 3rd
, 1991, it would have been impossible for Iraq to comply
with a resolution by January 15th
if that resolution was adopted almost three months later.113
According to the US legal theory, violations of SCR 687 authorize the use of force pursuant
to SCR 678. Given that SCR 678 authorized the use of force for only the narrow purpose of
reversing the Iraqi invasion of Kuwait, it seems unlikely that the US could maintain its position.
However, according to William H. Taft and Todd F. Buchwald, the phrase “restore international
peace and security in the area,” contained in SCR 678, was defined by SCR 687, and therefore, a
material breach of SCR 687 would authorize the use force pursuant to that phrase.114
Taft makes
this argument by pointing out that SCR 707 states that SCR 687 “established the conditions
essential to the restoration of peace and security in the region.”115
Granted, SCR 687 seems to
have defined the phrase “international peace and security in the region,” however, it is not true
that SCR 687 defined the similar, but ultimately different phrase, “international peace and
security in the area.” Thus, Taft’s argument lends some support for the US legal theory, but it
ultimately fails for the following reasons.
First, this method of interpretation leads to a troubling contradiction; for if it were true that
SCR 687 defined the “restore” language of SCR 678, then that would mean that during the
period between the adoption of resolution SCR 678 and SCR 687, the phrase “restore
international peace and security in the area” had no meaning, or that such a phrase was redefined
by SCR 687. It cannot be the case that SCR 687 redefined the restore language of SCR 678
because the Council members that voted on SCR 678 did not vote on the definition provided by
SCR 687. Thus, the Security Council would have acted ultra vires if were to adopt a resolution
that retroactively defines the language of a previous resolution, especially if that language was a
matter dealing with the use of force. Yet, it is possible that the Security Council’s understanding
of the restore language of SCR 678 was such that SCR 687 did not redefine the restore language
of SCR 678, but merely elaborated on upon it. As will be revealed below, the restore language
112
Rainer Hofmann, International Law and the Use of Military Force Against Iraq, German Yearbook of
International Law, v. 45, 9–34, at 17 (2002) (arguing that SCR 678 did not authorize the use of force to implement
any resolutions subsequent to SCR 678.)
113
See Murphy, supra note 34, 181 (“Given that Iraq could not possibly comply by January 16 with resolutions that
did not exist as of that date, the only reasonable interpretation of the language is that ‘all subsequent relevant
resolutions’ refers to the ten resolutions existing at the time Resolution 678 was adopted, and not resolutions
adopted thereafter.”)
114
William H. Taft, IV & Todd F. Buchwald, Preemption, Iraq, and International Law, American Journal of
International Law, v. 97, 557-63, at 559 (2003) (pointing out that in resolution 707, the Security Council stated that
SCR 687 established the conditions essential to the restoration of peace and security in the region and that a material
breach of those conditions leaves the responsibility to member states to enforce those conditions, operating
consistently with Resolution 678 to use all necessary means to restore international peace and security in the area.)
115
Id. prmbl. ¶ 11.

Analysis of the US Legal Justification for Invading Iraq in 2003-GGN-2007

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