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Chicago Journal of International Law

Abstract

The most publicized element of The National Security Strategy of the United States of America (the "Strategy"), promulgated in September 2002 by the Bush administration, is its emphasis on the option to use preemptive military strikes to address threats to the United States before they fully materialize. This is set in the context of terrorist organizations, such as al Qaeda, or so-called rogue states, such as Iraq or North Korea, acquiring and threatening to use weapons of mass destruction-in other words, chemical, biological, or nuclear weapons. The terms "preemptive attack," "preventive war," and "anticipatory self-defense" will be used interchangeably in this Article. Arguably, the term anticipatory self- defense could imply action against a truly imminent, alleged threat, while preventive war could be addressed to a threat that is yet to fully mature, with preemptive attack somewhere in between. Even though the three terms are somewhat different, the lines between them are not clear, and they all involve aggressive action. Thus, the question becomes whether a particular attack is justified under the rules of international law as a legitimate act of self-defense, given the circumstances. Section III of the Strategy states that the government will defend the United States, the American people, and our interests at home and abroad by identifying and destroying the threat before it reaches our borders. While the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively against such terrorists. This Article addresses whether the implementation of this doctrine of preemptive attack or preventive war is consistent with international law.

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