International Law and the Preemptive Use of Force Against Iraq Page: 2 of 6
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CRS-2
occasioned by attack or fear of attack. When acts of self-preservation on the part of
a State are strictly acts of self-defense, they are permitted by the law of nations, and
are justified on principle, even though they may conflict with the ... rights of other
states.2
Moreover, the recognized right of a state to use force for purposes of self-defense
traditionally included the preemptive use of force, i.e., the use of force in anticipation of
an attack. Hugo Grotius, the father of international law, stated in the seventeenth century
that "[i]t be lawful to kill him who is preparing to kill."3 Emmerich de Vattel a century
later similarly asserted:
The safest plan is to prevent evil, where that is possible. A Nation has the right to
resist the injury another seeks to inflict upon it, and to use force ... against the
aggressor. It may even anticipate the other's design, being careful, however, not to
act upon vague and doubtful suspicions, lest it should run the risk of becoming itself
the aggressor.4
The classic formulation of the right of preemptive attack was given by Secretary of
State Daniel Webster in connection with the famous Caroline incident. In 1837 British
troops under the cover of night attacked and sank an American ship, the Caroline, in U.S.
waters because the ship was being used to provide supplies to insurrectionists against
British rule in Canada headquartered on an island on the Canadian side of the Niagara
River. The U.S. immediately protested this "extraordinary outrage" and demanded an
apology and reparations. The dispute dragged on for several years before the British
conceded that they ought to have immediately offered "some explanation and apology."
But in the course of the diplomatic exchanges Secretary of State Daniel Webster
articulated the two conditions essential to the legitimacy of the preemptive use of force
under customary international law. In one note he asserted that an intrusion into the
territory of another state can be justified as an act of self-defense only in those "cases in
which the necessity of that self-defense is instant, overwhelming, and leaving no choice
of means and no moment for deliberation."5 In another note he asserted that the force
used in such circumstances has to be proportional to the threat:
It will be for [Her Majesty's Government] to show, also, that the local authorities of
Canada, 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-defence, must be limited by that necessity, and
kept clearly within it.62 Id. Vol. 1, at 237.
3 Grotius, Hugo, The Law of War and Peace, at 1625.
4 de Vattel, Emmerich, The Law of Nations, Vol. IV, at 3.
5 Letter from Secretary of State Daniel Webster to Lord Ashburton of August 6, 1842, set forth
in Moore, John Bassett, A Digest of International Law, Vol. 11 (1906), at 412.
6 Letter from Mr. Webster to Mr. Fox of April 24, 1841, 29 British and Foreign State Papers
1129, 1138 (1857), quoted in Damrosch, Lori, International Law: Cases and Materials (2001),
at 923.
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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/m1/2/?q=%22defense+policy%22: accessed July 17, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.