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Order Code RS.
Updated April 11,
CR8 Report for Congress
p g
Received through the CR8 Web
International Law and the Preemptive Use of
Force Against Iraq
David M. Ackerman
Legislative Attorney
American Law Division
Summary
On March 19, 2003, the United States, aided by Great Britain and Australia,
initiated a military invasion of fraq. Both the U.S. and Great Britain contended that
they had sufficient legal authority to use force againstfIraq pursuant to Security Council
resolutions adopted in 1990 and 1991. But President Bush also contended that, given
the "nature and type of threat posed by Iraq," the U.S. had a legal right to use force "in
the exercise of its inherent right of self defense, recognized in Article 51 of the UN
Charter." Given that the U.S. had not previously been attacked by Iraq, that contention
raised questions about the permissible scope of the preemptive use of force under
international law. This report examines that issue as it has developed in customary
international law and under the United Nations Charter. It will be updated as events
warrant. (For historical information on the preemptive use of force by the U.S., see CRS
Report RS21311, U.S. Use of Preemptive Military Force.)
Preemptive Military Attacks Under Customary International LawUntil recent decades customary international law deemed the right to use force and
even to go to war to be an essential attribute of every state. As one scholar summarized:
It always lies within the power of a State to endeavor to obtain redress for wrongs, or
to gain political or other advantages over another, not merely by the employment of
force, but also by direct recourse to war.'
Within that framework customary international law also consistently recognized self-
defense as a legitimate basis for the use of force:
An act of self-defense is that form of self-protection which is directed against an
aggressor or contemplated aggressor. No act can be so described which is notCongressional Research Service + The Library of Congress
?1314
20031 Hyde, Charles Cheney, International Law Chiefly As Interpreted and Applied by the United
States, Vol. 3 (1945), at 1686.
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Ackerman, David M. International Law and the Preemptive Use of Force Against Iraq, report, April 11, 2003; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metacrs4328/m1/1/: accessed July 17, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.