Preventive Use of Force and the Just War Theory
This dissertation will examine the dangers created by governmental entities that possess or seek to possess weapons of mass destruction (WMDs), for possible use against other states. In order to counter such a threat, traditional notions of anticipatory self-defense such as preemption might prove ineffective as the deployment of WMDs can be carried out in a matter of minutes. As a result of this, some jurists and politicians have called for the broadening of anticipatory self-defense to include preventive force. While the use of preemptive force has been recognized as a legitimate form of selfdefense, such recognition has not been extended to the use of preventive force. This research attempts to answer the following questions: Under what circumstances can preventive force be used against a target state that develops WMDs with the alleged intention to use them? And what procedures would ensure that preventive force is used in a manner that minimizes the possibility of abuse by the state claiming to exercise its right of self-defense? The dissertation will propose a normative framework that will define the scope of the lawful use of preventive force when a state is claiming to be using such force against another state as an exercise of self-defense. The proposed legal framework takes into consideration both recent legal developments as well as relevant instances of state practice in order to circumscribe the use of preventive force to clearly defined cases. The determination of the legality of a preventive strike should be made by the United Nations Security Council. The Security Council would be presented with a proposed preventive strike by a state making the allegation that the strike is necessary to stop another state from developing WMDs that would be used against it in the future. In order to secure an approval for the preventive strike, the “preventor” state would have to show compelling reasons, such as the target state’s prior bad actions, as to why such a strike is necessary.