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Abstract.
The laws of war forbid states to use force against each other except in self-defense or with the authorization of the United Nations Security Council. Self-defense is usually understood to mean self-defense against an imminent threat. We model the decisions of states to use force against "rogue" states and argue that under certain conditions, it may be proper to expand the self-defense exception to preemptive self-defense. We also consider related issues such as humanitarian intervention, collective security, and the role of the Security Council.
The President always has the right, and always has had the right, for preemptive strike. That was a great doctrine throughout the Cold War. And it was always one of the things we argued about with respect to arms control. No president, through all of American history, has ever ceded, and nor would I, the right to preempt in any way necessary to protect the United States of America.
-Senator John Kerry1
In the past fifteen years, the United States has launched military interventions in Panama (1989), Iraq (1991), Somalia (1993), Kosovo (1997), and Iraq again (2003). In theory, these wars, and many others involving other states during this period, are governed by the use of force, or jus ad bellum, rules of international law.
The use of force rules are straightforward. Under the United Nations Charter, states may use force against other states only under two conditions. First, a state may use force if authorized to do so by the United Nations Security Council.2 Because the Security Council can act only if the five permanent members-the United States, Russia, Britain, France, and China-agree, however, and because these five members rarely agree on anything, the Security Council has authorized war only twice, the first time (Korea) because of a tactical error by the Soviet Union in failing to exercise its veto.3
Second, a state may use force in self-defense.4 Self-defense is understood in the narrowest terms: the state using force must either be under attack or under threat of "imminent" attack.5 And even when there is a threat or incursion, the state invoking the right of self-defense must exercise restraint and use only "proportionate" force to counter the attack.6 It cannot use a small border incursion as an excuse...