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31 Denv. J. Int'l L. & Pol'y 43 (2002)


Following the September 11th attacks in the United States (U.S.), one could make a case for America's use of force in Afghanistan as a lawful exercise of the right of self-defense. But the proposals to invade Iraq following September 11th cannot be so defended. Those proposals did not concern defending the basic security of the U.S. in the sense that basic security defense is currently understood in the international community. They concerned, rather, defense of a more expansive concept of security, a concept wherein the U.S. need not tolerate antagonistic regimes with the potential to harm U.S. interests. The invasion plans represent a view that the United States is a privileged nation with more rights than others. Under this view, the United States may invade Iraq and remove Iraq's leader, Saddam Hussein, because he poses an indefinite future threat, the type of threat a superpower need not live with, though all other states must.

This paper is about the current and future law of self-defense. It applies the law to Operation Enduring Freedom in Afghanistan and to a proposed invasion of Iraq in light of the circumstances prevailing in Spring 2002. The analysis shows that while Enduring Freedom was arguably lawful, an invasion of Iraq would indeed be an act of aggression. The discussion then turns to the impact an invasion, or even the planning for an invasion, would have on the legal regime for restraining force. Because international law's structure is based on the members equality under the law, treating the United States exceptionally in a matter as grave as an unlawful invasion will have serious consequences for the future legal regime for restraining the use of force. The thesis of this paper is not necessarily to defend the old order. The aim is a more modest one: pointing out how that order is changing.


Reprinted with permission of Denver Journal of International Law and Policy.



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