To the extent that the intervention in Iraq in 2003 is regarded as an act of preemptive self-defense, the aftermath of that intervention may presage an era where states resist resorting to large-scale preemptive self-defense. The intervention in Iraq highlighted considerable policy difficulties with the resort to preemptive self-defense: an inability to attract allies; the dangers of faulty intelligence regarding a foreign state's weapons programs and relations with terrorist groups; the political, economic and human costs in pursuing wars of choice; and the resistance of a local populace or radicalized factions to what is viewed as an unwarranted foreign invasion and occupation. Nevertheless, preemptive self-defense may continue to be used by powerful states on a smaller scale, such as missile attacks against weapons facilities or terrorist camps in rogue states. Unfortunately, the views of international lawyers are fractured on whether such conduct is lawful. Most international lawyers appear to fall into schools of thought that reject preemptive self-defense, but the debate is robust and will no doubt continue. As it continues, this essay urges international lawyers to focus more on the theory and methodology they employ in reaching their conclusions, and why their approach is superior to that of other schools of thought. In particular, the discourse among international lawyers regarding how to gauge state practice since 1945 is uneven, not joined, and at times breezy. Only by grappling squarely with issues of theory and methodology will international lawyers be able to achieve a greater level of convergence in their views, thereby providing policy-makers with better guidance and laying the groundwork for more stable international rules on the use of force.
GW Paper Series
GWU Legal Studies Research Paper No. 140; GWU Law School Public Law Research Paper No. 140
Sean D. Murphy, The Doctrine of Preemptive Self-Defense, 50 Vill. L. Rev. 699 (2005).