The United States will preemptively and unilaterally engage in a military offensive against Iraq within the next few weeks or months. Discourse from the Bush administration has focused on the legality of preemptive action stemming from the imminence of an Iraqi nuclear, biological or chemical attack on the United States or its allies, with minimal empirical evidence to support that assertion.

Much of the focus of the international community has centered on the potential illegality of unilateral and preemptive military action by the United States. There has been minimal, if any, discourse on the right(s) of Iraq, in the impending conflict.

The doctrines of self-defense and preemption, and anticipatory self-defense to a greater extent, are purposely limited doctrines in international law, subject to rigorous constraints. However, a meritorious argument can be made that Iraq could, and perhaps should, justifiably engage in limited acts of self-defense pursuant to the United Nations Charter, and/or preemptive military action against United States military installations pursuant to customary international law, in lieu of an imminent and impending United States military campaign.

The doctrine of self-defense in international law is a safeguarded one, as evidenced by the United Nations Charter and the procedures set forth to effectuate self-defense within the United Nations system. The Charter has attempted to codify the doctrine of “self-defense.” Article 51 of the United Nations Charter states:

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-defence 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.¹

A consummate debate of Article 51 has often centered upon the question of when an “armed attack” occurs for purposes of satisfying Article 51. The United States and Israel have been perennial proponents of the “cumulation of events” theory, which attempts to define what constitutes an “armed attack.” The “cumulation of events” theory asserts that: “a series of attacks should be viewed as a whole, so that action taken to prevent future attacks in the series can be seen not as anticipatory self defence, but as self-defence against one attack that continues to occur.”²

The United States justified a widely criticized air strike on Libya in April of 1986 through an invocation of Article 51 and the “cumulation of events” theory. The strike was in response to alleged terror attacks against American and European civilians in Europe, for which the United States determined that Libya was responsible. Members of the Security Council denounced the air strikes; however a resolution was vetoed by the United States and Great Britain.

In support of the United States position, Great Britain noted: “[t]he right of self defence is not an entirely passive right. It plainly includes the right to destroy or weaken the capacity of ones assailant, to reduce his resources, and to weaken his will so as to discourage and prevent further violence.” ³

As of late, the United States has established a military occupation of Afghanistan, preceded by a military offensive of large proportions. Article 51 laid the bases for justification, and was arguably supported by the “cumulation of events” theory. The United States have attributed the attacks in September of 2001, as well as the attacks on the United States embassies in Kenya and Tanzania to the al-Qa’eda network. This cumulation of events, according to the worldview of the United States, constituted an armed attack by Afghanistan, thus justifying the invocation of Article 51.

In applying the preceding principles, as articulated through the state practice of the United States, Great Britain and Israel, Iraq could make a similar argument that the consistent and debilitating  “coalition” air strikes upon Iraqi military and civilian installations constitute an armed attack, pursuant to the “cumulation of events” theory. To argue that Iraq does not have the right to exercise self-defence in order to protect its own territorial integrity would be grossly hypocritical in light of that same right being exercised by the “power brokers” of the United Nations. Iraqi interest in protecting its territorial and sovereign integrity is no less vital than the United States or Great Britain protecting their respective interests.

In pragmatic and realistic terms, however, an Iraqi attempt to invoke Article 51 as a justification for a strike against the United States (military installations, bases in Kuwait and Israel) would encounter severe difficulties, being that the United States and Great Britain sit as permanent members of the Security Council, and would certainly veto any attempt by Iraq to enlist the support of the Security Council.

Article 51, in theory, requires that states inform the Security Council of any measures they will take in self-defense, and that once the Security Council has acted to resolve the matter, any measures taken must cease. Having said that, however, the inner constraints of Article 51 have not served as barriers to nations, such as the United States and Israel, from an invocation of that provision. In such an extreme case, as that which is faced by Iraq and the Iraqi people, the inner constraints of Article 51 should not bar Iraq from invoking and vindicating its right to defend itself. In other words, Iraq should follow the path, which will be necessary, of the United States and Israel, and run against the Security Council, which will surely veto Iraqi attempts at self-defense.

The current situation in Iraq is an undeniably desperate one. Iraq faces a Herculean task in taking on adversaries such as the United States and Great Britain, both of whom have lodged allegations and threats against Iraq. This being the situation, Iraq arguably could legally strike United States military installations in Israel and Kuwait, in the exercise of its right of “anticipatory self-defense.”

The classical doctrine of anticipatory defense or preemption has its origins in the Matter of the Caroline, in which the British destroyed a United States ship at Niagara Falls in 1837. Out of this debate came forth the doctrine that a state may anticipate further attacks if the necessity is “instant, overwhelming, leaving no choice of means, and no moment for deliberation.”⁴ In other words, further attacks must be imminent.

Anticipatory self-defense or preemption is not, however, a thriving doctrine of international jurisprudence. Indeed, some scholars such as Louis Henkin have argued that a right of anticipatory self-defense does not exist: “Nothing in… its drafting… suggests that the framers of the Charter intended something broader than the language implied… It is precisely in the age of the major deterrent that nations should not be encouraged to strike first under pretext of prevention or pre-emption.”⁵ Other scholars have argued, however, that anticipatory self-defense is not limited by the United Nations Charter:

The history of Article 51 suggests... that the article should safeguard the right of self-defence, not restrict it... furthermore, it is a restriction [no right of anticipation] which bears no relation to the realities of a situation which may arise prior to an actual attack and call for self-defense immediately if it is to be of any avail at all. No state can be expected to await an initial attack which, in the present state of armaments, may well destroy the state’s capacity for further resistance and so jeopardise its very existence.⁶

The United States has articulated that it will base its justification for an offensive on Iraq through the doctrine of anticipatory self-defense:

For centuries, international law recognized that nations need not suffer an attack before they can legally take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat- most often visible mobilisation of armies, navies and air force preparing to attack.⁷

The majority of the international community is convinced that the United States has failed to show that Iraq poses an “imminent” threat to the United States. The United States, to date, has failed to provide tangible empirical evidence that Iraq poses such a threat. On the other hand, Iraq is faced with a clear, self-evident and imminent attack from the United States. There has been a significant buildup of United States armed forces in the region, as well as open and public threats of regime change in Iraq. One can argue that there has not been a clearer case of “imminence” of an armed attack since the cessation of the Cold War. Iraq is in a justifiable position to use preemptive and anticipatory action to prevent an attack on its sovereign and territorial integrity.

Although Iraq may be justified in engaging in measures of self-defense, the question follows: What targets could Iraq legally strike? Arguably, to satisfy the requirements of international law, Iraq would be required to use force proportionately, with discrimination. Appropriate targets could be seen as military bases and outposts in Kuwait and other areas of the Middle East where United States and coalition forces are “lying in wait.” Furthermore, Israeli military and intelligence centers could find themselves at the end of legitimate Iraqi preemptive strikes, if it is found that they pose an “imminent” threat to Iraq.

To ignore Iraq’s self-evident rights to defend its territorial and sovereign integrity is to ignore fundamental precepts of international jurisprudence and the United Nations Charter. Yet, it is these very precepts that have been ignored by the major “power brokers” of the United Nations, namely the United States and Great Britain. Iraq arguably has a significantly greater justification to exercise its right of self-defense and anticipatory self-defense than its antagonists do.

Thomas J. Haidon is an American attorney and activist residing in Wellington, New Zealand. He received a Jurisdoctorate (J.D.) with a certificate of international law from the University at Buffalo School of Law and a Bachelor of Arts in Political Science from Niagara University. He has studied at the American University in Cairo and Birzeit University, Palestine. He is currently pursuing an L.L.M. in international law. You can reach him at thaidon@justice.com

1- United Nations Charter, Article 51.

2- Harris, D.J. Cases and Materials on International Law: The Use of Force By States (London: Sweet & Maxwell, 1998) p. 898

3- S/PV. 2679, pp. 27-28, U.K.M.I.L. 1986 (1986) 57 B.Y.I.L. 641

4- The Caroline Case. 29 B.F.S.P. 1137-1138; 30 B.F.S.P. 195-196

5- Harris, p. 897

6- Bowett, E. Self-Defence in International Law (1958) pp 188-192

7- National Security Strategy. Bush Administration. 17 September 2002. V. Prevent Our Enemies from Threatening Us, Our Allies, and Our Friends with Weapons of Mass Destruction.

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