The government of Saudi Arabia (KSA) initiated a military intervention in Yemen led by a coalition of countries that includes Jordan, United Arab Emirates, Kuwait, Qatar, Morocco, Sudan, Bahrain, Oman, and Egypt (Weizmann, “International Law on the Saudi-Led Military Operations in Yemen.”). According to Cop, in this case one can say that the use of force is legal because:
1. The military intervention was in response to an invitation by the Yemeni president.
The Yemeni president made a request to the Arab leaders to help him against the Houthi rebels’ aggression. He made this request in the name of the UN charter article 51 principle of self-defense. Since the Yemeni president made the request, the intervention by Saudi Arabia is legal and does not pose a violation to the prohibition of the use of force under article 2(4) of the UN Charter (Weizmann, “International Law on the Saudi-Led Military Operations in Yemen.”).
2. Iranian support to Houthi rebels in Yemen poses a direct threat to KSA and the Middle East.
Iran is slowly and steadily trying to revive its Persian Empire glory once again. It has been doing this through the support of Shi’a sects throughout the Middle East. It gave support to the Bashar El Assad regime in Syria, it gave financial support and weapons to the Hezbollah party in Lebanon, it is supporting the Shi’a majority in Iraq, and now it is supporting the Houthi rebels in Yemen to overthrow the government (Denison, “Is Iran Rebuilding The Persian Empire?”).
Is the coalition’s military intervention a lawful use of preemptive force?
Clearly Saudi Arabia is not only intervening because of the Yemeni president’s request but also because the imminent threat that Saudi Arabia and the rest of the Middle East is facing. Iran as a rising superpower is a ‘’nightmare’’ to Saudi Arabia because not only will Iran gain control over the Middle East but also over the Saudi Arabian Peninsula. Thus it is arguable that Saudi Arabia has demonstrated necessity of self-defense (Denison, “Is Iran Rebuilding The Persian Empire?”). But is pre-emptive self-defense legal?
Before the UN charter
Long before the UN Charter was adopted, customary international law accepted the use of preemption in the case of self-defense. The acceptance entailed that the use of preemption in anticipation of self-defense was acceptable (Arend, “International Law and the Preemptive Use of Military Force.”).
Those states that use force to defend themselves need to provide proof of necessity. The state needs to prove that the “necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment of deliberation.” This means that the state has to provide proof that it had no other choice but use force to protect itself from the imminent threat (Arend, “International Law and the Preemptive Use of Military Force.”).
The second criterion that a state has to follow is proportionality. The state has to act in a manner of proportion to the threat. Assuming that necessity authorized the entry of the enemy’s territory, the state must act in a manner that is not excessive or unreasonable since the entry was supervised by the ‘’necessity to Self-defense’’ therefore the act must be kept within that framework (Arend, “International Law and the Preemptive Use of Military Force.”).
The UN Charter
After the end of World War II, the framers of the UN charter wanted to establish a system that would protect future generations from the scourge of war and they intended to do that through the restriction of the use of force. They created article 2(4) under the UN charter that tells states 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 other manner inconsistent with the Purposes of the United Nations.’’ Use of force is only permissible in two cases: use of force in self-defense (Article 51) and use of force that is authorized by the Security Council (Article 42) (Arend, “International Law and the Preemptive Use of Military Force.”).
Even though the wording of articles 51 is clear it caused a divide between scholars. On one side, there are those scholars, sometimes called the ‘‘restrictionists’’, who interpret article 51 as a restriction to the use of force and limit it only in the case of self defense when the enemy state has already launched a military attack. From this perspective, the use of preemption is prohibited and thus also illegal (Arend, “International Law and the Preemptive Use of Military Force.”).
On the other hand there are other scholars, sometimes called the ‘’counterrestrictionists’’, who believe that article 51 does not restrict ‘’the preexisting customary right of anticipatory self-defense’’. A typical counterrestrictionist would argue that the ‘’inherent right’’ reference in article 51 actually means the continuation of the pre charter context of the use of force which is the ‘’customary right of anticipatory self-defense’’ (Arend, “International Law and the Preemptive Use of Military Force.”).
Counterrestrictionsists emphasize that there are international precedents for the pre-emptive use of military force. After the events of 9/11, US foreign policy shifted away from the policy of deterrence and containment that was used during the cold war. The administration formulated a new national security strategy. A key component of this new strategy is preemption, which basically entails that the US can attack the enemy before the enemy uses force first. Preemption has been hotly debated in the arena of international law and still remains controversial (Arend, “International Law and the Preemptive Use of Military Force.”).
Preemption is only justifiable when it is in conformity with international Law.
The Bush doctrine
The Bush doctrine, which has been expanded and prolonged under the current administration, has serious implications and may jeopardize international peace and security. The doctrine is unable to distinguish between unlawful aggression and preemption. In consequence, other states may believe that it is their right to take any action against an enemy state. The Bush doctrine therefore does not concern itself with the basics of international relations and the advantages of proper multilateralism(Gupta,”The Doctrine Of Pre-emptive Strike: Application And Implications During The Administration Of President George W. Bush.”).
The Bush doctrine is very vague about the type of state action towards imminent issues, such as that of weapons of mass destruction. It also does not give any details about the timing or the purpose of a pre-emptive attack. The only point the doctrine was clear about is how the US self-assesses an imminent danger. The US definition of a threat includes an enemy-state increasing it nuclear power capability or adding biological weapons to its stockpiles. From this perspective, North Korea is a clear threat to the US (Gupta,”The Doctrine Of Pre-emptive Strike: Application And Implications During The Administration Of President George W. Bush.”).
Many warned against the atrocities that could stem out of the Bush Doctrine. The doctrine gives leeway to ‘’more powerful states’’ to ‘’use it as a rationale to settle scores against weaker states that are deemed to pose a threat to the stronger nation’s security’’. Henry Kissinger was one of the first people to really highlight the dangers of the Bush doctrine when he said ‘’it cannot be in either the American national interest or the world’s interest to develop principles that grant every nation an unfettered right of pre-emption against its own definition of threats to its security’’. US was finally able to recognize the dangers of the doctrine and set out to warn other nations, especially India against the use of preemption but many criticized the US and argued that the US contradicts itself because it is setting to warn others but still reserves the right of preemption to itself (Gupta,”The Doctrine Of Pre-emptive Strike: Application And Implications During The Administration Of President George W. Bush.”).
Was the preemptive invasion of Iraq a violation of international law?
The Anglo-American interference in Iraq in the spring of 2003 has been very controversial and many went into debate on whether the intervention was legal and whether it was justifiable. The intervention in Iraq is debatable because of the discrepancies between preemption and international law (Cop, “Has the Military Action against Iraq Transformed System of Law Governing Use of Force?”).
According to Arthur Schlesinger Jr, former Secretary of State to President Kennedy, The Iraq invasion is not a preemptive war but more likely a preventive war because the ground on which preemptive attack is legal is when the state (US) shows necessity. In other words, for the Iraq invasion to be perceived as a preemptive attack the US should have demonstrated that it had no other choice but attack which was not the case in Iraq (“Was the Preemptive Invasion of Iraq a Violation of International Law?’’).
The UN should have issued another resolution, says Kofi Anan Secretary General of the UN because ‘’the Security Council indicated that if Iraq did not comply there would be consequences’’. And that it was the Security Council role to conceive those consequences. Since the Security Council did not approve the attack then it does not conform to the UN charter and it is thus illegal (“Was the Preemptive Invasion of Iraq a Violation of International Law?’’).
According to Erwin Chemerinsky, Professor of law and political science at Duke University, the invasion of Iraq was illegal because nothing under international law gives the right to another state to use ‘’preemptive war to overthrow a government and disarm it’’ and like Arthur Schlesinger said, the attack fit none of the exceptions under which preemption is accepted (“Was the Preemptive Invasion of Iraq a Violation of International Law?’’).
Having taken the views of these prominent figures and most importantly the view of the former secretary general of the UN, one can certainly say that the invasion of Iraq is certainly a breach of international law (“Was the Preemptive Invasion of Iraq a Violation of International Law?’’).
Preemption is only justifiable when it is in conformity with international Law. By contrasting the case of Yemen to Iraq it became possible to distinguish when Preemption is Justifiable and when it’s not. In one’s opinion, Yemen is a clear case of a justifiable and perhaps a legal use of preemption because Saudi Arabia has demonstrated a necessity of self-defense. Also the invitation Saudi Arabia received from the Yemeni president solidified its position. On the other hand, the invasion of Iraq can serve as an example of a breach to international Law regarding the use of force. In the case of Iraq, The use of Preemption was unreasonable and was not based on necessity of self defense. The US has adopted its own definition of preemption which is discrepant to International law.