International Law and the Preemptive Use of Force Against Iraq Page: 3 of 6
This report is part of the collection entitled: Congressional Research Service Reports and was provided to UNT Digital Library by the UNT Libraries Government Documents Department.
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CRS-3
Both elements - necessity and proportionality - have been deemed essential to legitimate
the preemptive use of force in customary international law.7
Effect of the United Nations Charter
However, with the founding of the United Nations, the right of individual states to
use force was purportedly curbed. The Charter of the UN states in its Preamble that the
UN was established "to save succeeding generations from the scourge of war"; and its
substantive provisions obligate Member States of the UN to "settle their international
disputes by peaceful means" (Article 2(3)) and to "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 manner inconsistent with the Purposes of the United Nations" (Article
2(4)). In place of the traditional right of states to use force, the Charter creates a system
of collective security in which the Security Council is authorized to "determine the
existence of any threat to the peace, breach of the peace, or act of aggression" and to
"decide what measures shall be taken ... to maintain international peace and security"
(Article 39).
Although nominally outlawing most uses of force in international relations by
individual States, the UN Charter does recognize a right of nations to use force for the
purpose of self-defense. Article 51 of the Charter provides:
Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence 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.8
The exact scope of this right of self-defense, however, has been the subject of ongoing
debate. Read literally, Article 51's articulation of the right seems to preclude the
preemptive use of force by individual states or groupings of states and to reserve such
uses of force exclusively to the Security Council. Measures in self-defense, in this
understanding, are legitimate only after an armed attack has already occurred.9
In its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, the
International Court of Justice stated that "[t]he submission of the exercise of the right of self-
defence to the conditions of necessity and proportionality is a rule of customary international
law." 1996 I.C.J. Reports para. 41.8 United Nations Charter, Article 51.
9 This reading of Article 51 finds support in the decision of the International Court of Justice in
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of
America), 1986 I.C.J. Reports p. 14. The gravamen of the Court's ruling was that in customary
international law as well as Article 51, the use of force in self-defense is justified only in
response to an armed attack:
... [F]or one State to use force against another ... is regarded as lawful, by way of
exception, only when the wrongful act provoking the response was an armed attack
.... In the view of the Court, under international law in force today - whether
customary international law or that of the United Nations system - States do not have
a right of "collective" armed response to acts which do not constitute an "armed
(continued...)
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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/m1/3/?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.