Bushdoktrinen och förhållandet till den internationella rättens självförsvar - det preventiva självförsvarets risker

Sammanfattning: The purpose of the thesis is to analyze and problematize the Bush doctrine in regard to established international law on self-defence. The right to self-defence is an exception to art. 2.4 in the UN Charter, the prohibition of the use of force, attributed to sovereign states in according to art. 51 UN Charter, as well as customary international law. It requires at least an imminent attack or threat thereof, to be able to invoke the right to self-defence without breaking the prohibition of the use of force. The Bush doctrine was an attempt by the United States in before the Iraqi invasion in 2003, to bring forward the point in time when the right to self-defence could be invoked. Due to the consequences that follows with the use of weapons of mass destruction, United States wanted to be able to invoke the right to self-defence even before the attack was imminent, in a preemptive state, using the Bush doctrine to present such a notion. The Bush doctrine was heavily criticized from other states. United States paid attention to the critique as they later abandoned talking of preemptive self-defence and instead went with a wide interpretation of what they considered being an ”imminent” attack. In its original version, the Bush doctrine can never be in line with established international law on self-defence. The principles of necessity and proportionality are fundamental in international law and the right to self-defence. The Bush doctrine is in support of preemptive self-defence, which means that the principles of necessity and proportionality are not able to coexist in such a context. Later, United States changed approach and instead did a wide interpretation of the notion of ”imminent” which gained some acceptance from states that earlier had been criticizing the initial Bush doctrine. However, this new interpretation is not a change in practice from the initial doctrine. The purpose is still to let sovereign states act in a preemptive manner. The right to preemptive self-defence is problematic in regard to international law. If there is given a right to, the two principles of necessity and proportionality can no longer be of equal importance, which easily can jeopardize international law as a whole, since preemptive self-defence gives a state right to act before an attack is imminent, and therefore requires to reduce the importance of necessity and proportionality since they cannot coexist. The thesis is written with a legal dogmatic method and a critical perspective, accompanied by an international and comparative perspective.