Redefining Legitimacy:  Legal Issues

 

By David K. Linnan © 2004

 

Paper for

Redefining Legitimacy:  Legal and Moral Issues in U.S. Foreign Policy and Military Strategy

Rudolf C. Barnes Symposium

January 30, 2004

Univ. of South Carolina Law School

 

            We open today’s symposium by examining certain legal rules concerning the use of armed force.  We seek correspondingly to define a variety of terms you will hear repeatedly today.  Everyone has heard these terms post-9/11, but only some have legal significance.  The others may have political or military but not legal significance as such, and I largely leave to subsequent speakers to clarify the significance of most non-legal terms beyond noting their non-legal character.

 

            The terms to be treated include:

Law of armed force;

Collective security (system);

Self defense;

Anticipatory self-defense;

Territorial integrity;

Indirect aggression;

Intervention;

Preemptive war;

Weapons of mass destruction (WMDs);

Terrorism (al Qaida);

War on terrorism;

Rogue states;

Non-state actors; and

Humanitarian intervention.

            We can, however, take some of the suspense out of the legal analysis already in terms of ultimate conclusions.  In international law terms the use of armed force in Afghanistan falls within most international lawyers' "zone of comfort." However, the same cannot be said in unequivocal terms about the use of armed force in Iraq under traditional US views.

 

Speaking as a lawyer, the striking thing about the use of armed force in Iraq is that, while it might have been possible to make a colorable case to fit it within traditional use of force categories (e.g., anticipatory self-defense), for whatever reason the US government choose not to try to cloak its policy decision to use armed force in traditional legal terms.  Instead, it apparently intended to establish as a matter of principle the claim of a new concept to justify the use of armed force (so-called preventive war, premised on what appear now to be faulty assumptions about weapons of mass destruction or WMD in Iraq).  Thus, without the cover of a Chapter VII UN Security Council Resolution or traditional self-defense law, the US invaded Iraq.  Had weapons of mass destruction or concrete evidence of military relationships between the state of Iraq and al Quaida terrorists been found, claims about preventive war probably would have been regarded as overblown political rhetoric overlaid over traditional legal categories like self-defense.  The supposed special character of WMDs presents scant comfort, because there is a tradition reaching back to the 1960s of treating them under anticipatory self-defense doctrine (first strike problems).

 

            The aggressive assertion of "preventive war" in the absence of formal justification now looks problematic, however, since there is no mistake or similar doctrine in international law justifying the unilateral use of armed force on the basis of mistaken assumptions concerning WMDs in Iraq.  The subsequent fallback position in legal terms, that humanitarian intervention could also justify the use of armed force in Iraq, is unconvincing as judged by its not even lukewarm reception by both states and publicists.  Ultimately, the so-called "preventive war" approach simply appears to be a bridge too far in legal terms.  We leave to our non-lawyer speakers the broader task of assessing its legitimacy and the effects of its failure under those circumstances, assuming it to be a good faith mistake, albeit one not acknowledged by the law.

 

Post-9/11 Factual and Policy Background

            The background for the current use of armed force in Iraq and Afghanistan reaches separately back to early 1990s problems involving what are now judged to be al Qaida operations against US interests, such as the original 1993 bombing of the World Trade Center, the 1998 bombing of the U.S. Embassies in Kenya and Tanzania, and the 2000 attack on the U.S.S. Cole.  In this light, the September 11, 2001 airplane attacks on the World Trade Center represent the culmination of an on-going process rather than an isolated event.  For these purposes it is sufficient to note that al Qaida, commonly referred to as a terrorist organization, in legal terms does not appear to have b

een affiliated with a state or government in carrying out its attacks on US interests (i.e., in ordinary English there has been no convincing proof offered of a link between any state and al Qaida despite sometimes loose assertions concerning share interests between al Qaida and the so-called "Axis of Evil" states, particularly Iraq and Iran).  In legal terms al Qaida was and still appears to be a "non-state actor," and "terrorism" for these purposes describes an approach to the calculated use of unlawful violence with more political than legal content (once a determination is made that the violence is unlawful, lawyers largely do not care about motivation).

 

            Whether or not a state were involved, international lawyers noted that US political and military doctrine began to consider asymmetric threats such as terrorist attacks already during the Clinton Administration under policy statements (military "white papers") culminating in the September 2002 Bush Administration's National Security Strategy (NSS).[1]  The NSS, issued post-9/11, and related reports contemplate a world in which military-style threats are no longer tied to a bipolar, Cold War-style world or even national states.  Instead, they contemplate the problem of weak or failing states, and so-called rogue states (meaning states typically seeking WMDs in order to assert themselves on a regional basis, often in violation of international law and in any case commonly in aggrandizement of individual leadership) which may harbor or encourage terrorism for their own purposes.  The NSS aggressively mandates confronting states tied to terrorism, asserting a right of self-defense in legal terms allowing preemptive, unilateral action.

 

            Afghanistan was invaded post 9/11 relatively quickly in October 2001 in the name of suppressing al Qaida via the Taliban.  The initial US military action was justified in terms of self-defense, but the UN Security Council eventually embraced the use of armed force in Afghanistan under Chapter VII resolutions.  Iraq was invaded in March 2003 expressly without the legal support of a Chapter VII Security Council Resolution.  To date, there is no Chapter VII resolution post-Gulf War justifying the use of armed force in Iraq.

 

Development of Legal Principles Concerning the Use of Armed Force

            This part of the presentation sets forth an abbreviated history of the development of public international law's restraints on the use of armed force. It also sketches conceptual differences within this area. Beyond history, our examination is cast largely in terms of the U.N. collective security structure and the proper reading of U.N. Charter Articles 2(4) and 51 (including legal concepts of self-defense with aspects of necessity and aggression). A short summary then follows of how related legal positions are reflected in the Afghanistan and Iraq situations.
 

            All these issues can be understood only against the backdrop of the intended supranational peacekeeping role of the Security Council under the U.N. Charter (and distant echoes of the predecessor League of Nations' failure). The Security Council's long-term Cold War institutional paralysis led to a situation in which the unilateral self-defense concept achieved predominance, conflict was often waged by proxy in insurgencies (thus not always international at first glance) and States' cooperation was limited.[2]  Political changes in the former Soviet Union and then the first Bush Administration's successful pursuit of a Security Council mandate to use armed force to dislodge Iraq from Kuwait revived hopes that regional conflicts could be managed under the multinational Security Council system (as contemplated in the immediate aftermath of World War II). The revival did not entirely live up to expectations, however, since the end of the Cold War did not herald a general peace so much as a changed international environment including non-state sponsored terrorism and similar threats in part coinciding with access to WMD concerns.
 

I. Nascent Regulation of the Use of Force and Outlawing Aggression

            The development of modern principles limiting armed force is best understood against the backdrop of 19th Century views concerning legality of its use and the formal, legal concept of war. In opposition to older natural law views requiring 'just cause' for a 'just' or legal war, the positivistic 19th Century international law concept of war adhered to the view that each State as an element of its sovereignty retained the right to go to war against another State at any time for any reason, or for no reason at all (under jus belli ac pacis). At the same time, the use of force in international relations was distinguishable from war per se if only arbitrarily under doctrines concerning the state of war (incorporating a subjective, intent-based test of animo beligerendi that required one or sometimes both parties intend or believe that a state of war exist before the use of force would be viewed as a hostile act in the course of a war). In spite of propagandistic attempts to justify the use of force in asserting another State's prior affront (real or imagined), it was generally acknowledged under 19th Century views of international law that armed force could be used to protect a State's economic and other interests during peacetime as well as wartime (distinguished under traditional legal categories as involving the "law of peace" versus the "law of war").
 

            Determining the legality of armed force had little meaning in the context of a system where the right to make war was legally unlimited. However, collateral views about rationales for recognizing the use of force retain some relevance for modern international law principles. For these purposes, one can distinguish between older views recognizing self-help or self-preservation as the justification for the use of force. The self-help rationale focused on the lack of an adjudicatory and enforcement mechanism under then-contemporary international law (providing a State with no effective recourse if an obligation owed by another State were violated). On the other hand, the self-preservation rationale responded to the perception that a State must have some right to resist attacks on its interests (and ultimately on its very existence).
 

            The development of modern international law views concerning war and the use of force dates back to the end of the 19th Century.[3]  It incorporates two distinct areas of legal attention. Within the traditional coverage of the law of war, from the time of the First Hague Peace conference (resulting in the various 1899 Hague Conventions and Declarations largely limiting armaments, followed by the Second Peace Conference resulting in the 1907 Hague Conventions, and through modern day arms control agreements and the various Geneva Protocols) one legal strand has accepted the idea of armed conflict but sought essentially on humanitarian grounds to limit the fashion in which hostilities would be conducted. We largely pass over this humanitarian law, and turn our attention instead to the second legal strand, namely the limitation of the use of force itself under international law. Development of the second legal strand dates back effectively to the founding of the League of Nations in the aftermath of World War I and through the applicable U.N. Charter interpretation ultimately affects all modern uses of armed force.
 

            The League's founding is acknowledged as a watershed, reflecting the general political consensus in the aftermath of World War I that the traditional law jus belli ac pacis was grossly unsuitable as a method of resolving international disputes. Without addressing the League's eventual failure to maintain international peace, we focus here on three narrow legal points involving the treaty character of the 1919 League Covenant. First, the apparent renunciation of war as a method of settling international disputes was recognized at the time of the League's founding as a departure from existing customary law. This creation of new international law by treaty was thus effective only among League Member States and did not immediately accede to the status of new and universally binding customary law. Most but not all of the major powers were members (for example, the United States was not). Second, the operative Covenant provisions largely referred to a rejection of 'war,' with the result that at least initially older, intent-based state of war doctrines arguably permitted a State to use armed force in the conduct of international affairs (but then to deny that "war was involved). To the extent Article 10 of the Covenant apparently required mutual assistance against "aggression" or its threat against the "territorial integrity and existing political independence" of League Members, this undertaking was characterized as a moral rather than legal obligation by some States. Each Member State was left individually to decide what its assistance should consist of in a specific instance. Third, while outlawing a "resort to war," in opposition to the current U.N. Charter the Covenant's language was literally silent on "self-defense." Covenant Article 16 stipulated that a Member State's violation of its obligations in resorting to war would be deemed an act of war against all other Members, and it contemplated that those States could then wage a defensive war against the transgressor (not avoiding the previously discussed problems inherent in keying the response to 'war'). Mention is made of self-defense only indirectly or by inference as in the problematic mutual assistance undertaking of Covenant Article 10.
 

            The Covenant's shortcomings were recognized already in the 1920s, and a combination of general anti-war sentiment and demands for structural improvement in the means for peaceful resolution of disputes (chiefly arbitration and conciliation) led to further conferences and treaties. By the time of the 1925 Locarno Treaties (providing for the peaceful arbitration of disputes among World War I's European protagonists), Article 2 of the centerpiece guaranty treaty distinguishes between "attack," "invasion," or "resort to war," and expressly recognizes that these do not include the use of armed force in the exercise of "legitimate defense" or pursuant to actions taken under the League's aegis or various Covenant provisions.
 

            The 1928 General Treaty for the Renunciation of War ("Kellogg-Briand Pact") represents the effective culmination of efforts between the World Wars to address perceived problems in the Covenant and League system. The fact that the United States was a signatory and the Kellogg-Briand Pact’s ambition to go beyond the Covenant substantively (and eventually to form the basis of new general international law excluding aggressive war) make it particularly important. By its terms the Kellogg-Briand Pact condemned "recourse to war" to resolve disputes and "renounce[d] it as an instrument of national policy." The Covenant’s unfortunate employment of "war" was repeated, raising the questions whether the Kellogg-Briand Pact was subject to the same infirmities of whether it was intended generally to establish that, subject to limited exceptions, the use of armed-force to resolve disputes was unlawful. However, the better view is that signatory States' use of armed force without sufficient legal cause itself already was rendered generally unlawful. Customary law incorporated this view in any case during the 1930s (as confirmed by war crimes tribunals in the aftermath of World War II).  Effectively, at this point "war" ceases to have much meaning as a term of art in public international law, for which purposes its employment correspondingly in the current language of "war on terrorism" represents rhetoric rather than possessing legal significance.
 

            The Kellogg-Briand Pact contained on its face no reference to self-defense, however, in the preparatory work and by exchange of diplomatic notes the parties variously reserved rights of "self-defense," "legitimate defense" or "legitimate self-defense." The United States itself expressly stated by note that nothing therein "restrict[ed] or impair[ed] in any way the right of self-defense" which is "inherent in every sovereign state and implicit in every treaty." The United States" note went on to characterize self-defense as an "inalienable" and "natural right," which "[e]very nation is free at all times and regardless of treaty provisions" to exercise and apparently laid claim to the ability of each State to decide for itself at least initially when its own right of self-defense applied.
 

            During the 1930s legal developments began to diverge. One branch eventually followed by Socialist law and Developing Nation views (predominantly under the Continental legal science view) focused on the legal concept of aggression chiefly in territorial, first-strike terms (harkening back to League Covenant Article 10, conceived of originally in response to Germany’s World War I invasion of Belgium). Another branch incorporating the American view concentrated on the legal concept of self-defense (rooted in customary law ideas of self-preservation). Legal analysis under both viewed large scale military invasion by an aggressor State as unlawful. However, opinions differed concerning the legality of low-level intervention in asserting traditional diplomatic protection (military operations carried out on foreign territory in protection of the lives or property of a State’s nationals) and the assertion of "self-defense" in the protection of vital interests of a political or economic nature.
 


  II. Collective Security, Self-defense and Interpretation of the U.N. Charter

            The most important difference between the League of Nations and U.N. arguably lies in enforcement mechanisms rather than fine substantive distinctions concerning views of armed force's legality. Given international law's inherent lack of coercive enforcement mechanisms (because there is no supranational "sovereign" to levy penalties in the Austinian sense), enforcement mechanisms and substantive law standards enjoy equal significance. The U.N. Charter incorporates both modern substantive law norms governing the use of armed force as well as a new organizational structure to enforce international peace in the form of the Security Council system.[4]  The League structure permitted only coordination of individual States' voluntary responses to aggression, while the Security Council system permits designation of an aggressor State to be coupled with a mandatory coercive regime (requiring member States to oppose the disturbance of international peace, using force if necessary ). At an extreme, traditional law's categories of belligerent and neutral States have been displaced by aggressor States and all other States (arrayed against them under Security Council direction).
 

            The final treaty terms of the U.N. Charter were negotiated at the 1945 San Francisco Conference on International Organization (open to all interested States except the defeated Axis Powers). Under the circumstances, the U.N. collective security system was devised in a conscious effort to revive many of the League of Nations’ aspirations in a more effective enforcement structure. Beyond the danger of general conflagration (World War II had just ended), the drafters of the Charter had before their eyes the example of the League's ultimate failure in its 1930s dealings with regional conflicts: Japan's 1931 invasion of Manchuria, the 1934-35 Italo-Abyssinian War, the 1939 Soviet-Finnish War and Germany's progressive occupations of the Rhineland (1936), Austria (1938), and Czechoslovakia (1939).
 

            The San Francisco Conference saw a variety of proposals by small States addressed to reconciliation of non-intervention principles with collective response to aggression along League lines (and an attempt to make collective response mandatory, a goal sought by weak States and resisted by strong States ever since the failure of League Covenant Article 10). The Security Council system agreed upon addressed perceived flaws in the League Covenant system by providing that a unified Security Council could compel all U.N. Member States to respond to threats against international peace (under U.N. Charter Chapter VII). In matters concerning international peace, however, by virtue of special veto provisions no action could be forced against the will of any Permanent Member of the Security Council (World War II's chief Allied Powers, France, Britain, China, the Soviet Union and the United States). When united, however, the Security Council could (1) withdraw matters concerning international peace from U.N. General Assembly consideration as well as (2) preclude unilateral self-defense from interfering with Security Council measures. On a substantive law level, a fair reading of the San Francisco proceedings illuminates the conceptual interrelationship of current U.N. Charter Article 2(1) (sovereign equality of all States, the basis of the new general U.N. system), Article 2(3) (calling for the peaceful resolution of all disputes), Article 2(4) (apparently absolute prohibition of the use of armed force against the "territorial integrity or political independence" of any State" recalling the language of League Covenant Article 10) and Article 51 (specifically recognizing the exercise of collective or individual self-defense pending Security Council action against threats to international peace).
 

            On an institutional level, the opposing vetoes of the United States and the Soviet Union largely foreclosed Security Council-mandated coercive peacekeeping activity during the entire Cold War period. Korea was the sole significant exception prior to the Gulf war Kuwait situation (minor exceptions include Rhodesia). As an organizational matter, a general form of collective security response evolved during the Korea situation in the form of voluntary action by Member States acting through the U.N. General Assembly (so-called "Uniting for Peace Resolutions," controversial and, due to the voluntary nature of any State's assistance, subject to many of the League Covenant system's infirmities). For the most part, however, the legal basis for any State's collective security response revolved around divergent interpretations under the U.N. Charter of competing views of self-defense and aggression developing since the 1930s. As a technical matter, the substantive law issues revolve around concerns whether drafters of the U.N. Charter intended to depart from progressive legal developments concerning the use of armed force dating back to the creation of the League (as opposed to merely incorporating applicable customary law as understood on the eve of World War II). Different readings of the relevant treaty provisions are the literal source of widely divergent interpretations of modern self-defense rights: the proper interpretation and interplay between Articles 2(4) and 51 of the U.N. Charter. Departing from the Covenant's and Kellogg-Briand Pact's problematic usage of the term "war," Article 2(4) is expressly directed against the "use of force":
 

"All [Member States] shall 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."
 

Departing from prior treaties" literal silence, Article 51 expressly addresses "self-defense":
 

"Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members . . . shall not in any way affect the authority and responsibility of the Security Council . . . to take at any time such action as it deems necessary in order to maintain or restore international peace and security."
 

            Based upon technical principles of treaty interpretation, the correct reading of the U.N. Charter is that Article 2(4) is more than a general statement of principles and directly covers the use of armed force in international relations (as augmented by Article 2(1)'s sovereign equality concept). It largely incorporates the customary law in this area developed particularly in the wake of the Kellogg-Briand Pact (subject to a recognition that certain United Nations organs have a final power of determination in such matters). Article 51's specific mention of self-defense should not be understood as an independent locus of textual interpretation. Instead, Article 51 simply states a rule of preliminary disposition pending Security Council action (which preliminary disposition may remain permanently in place insofar as the Security Council is paralyzed by veto or chooses not to act). However, this statement of the law (essentially in terms of the American view) is probably a minority view in the international community of States.
 

            On a structural basis, modern views of self-defense may be separated into two polar groups. The American view focuses on Article 51's "inherent right" language viewing Article 51 largely as a general savings clause for the customary law (viewing Article 2(4) as a rather abstract general statement of principle rather than an operative treaty provision). Socialist law views (seemingly with Continental legal science and Developing Nation views) see Article 51 as the proper focus for examination of the modern concept of permissible self-defense (viewing Article 2(4) by its terms as permitting the use of armed force only under Article 51 self-defense or the authority of U.N. organ). Their interpretation of permissible self-defense under the U.N. Charter involves literal interpretation of Article 51's first clause (transforming "armed attack" into a term of art alternatively precluding self-defense claims in response to de minimis disturbances of international peace and anticipatory self-defense as recognized by traditional law). By this chain of reasoning, Article 51's armed attack terminology prescribing the boundaries of permissible self-defense is read into Article 2(4) as the source of the aggression prohibition. This is linked in the case of the Continental legal science view to a variety of doctrinal interpretations of the self-defense concept (apparently influenced in varying degrees by domestic law concepts of self-defense and necessity). In the case of Socialist law and certain Developing Nations views, they are joined more directly to aggression in a pairing of Articles 2(4) and 51.

            Thus, the self-defense and aggression concepts are linked in uneasy fashion under modern international law. For our purposes, we distinguish here between the two basic approaches to self-defense noted above. On a technical level, the two differ on whether self-defense under the U.N. Charter should be treated as a definitional construct delimited by views of aggression itself or whether the content of the self-defense concept should be derived from a restrictive view of the older customary law embodying a self-preservation rationale. Both approaches nominally treat self-defense and aggression as independent concepts, but the definitional construct approach treats self-defense as aggression's mirror image while the customary law view itself is severed from the aggression concept. The aggression concept (and indirectly the true scope of U.N. Charter Article 2(4)’s textually absolute prohibition on violations of territorial integrity) over time has evaded any generally accepted definition in various U.N.-related proceedings.[5]  Beyond the easy case of a large scale military invasion (as with Iraq’s 1990-91 attempted annexation of Kuwait), there continues to be substantial disagreement about the scope of aggression viewed as a legal concept. Beyond intellectual disputation, however, the determination of what constitutes aggression is vitally important under this approach when it is allowed negatively to define self-defense.

            Major differences have revolved around issues such as "indirect aggression" (crucial during the Cold War). The American view maintains that sponsored insurgencies normally constitute grounds for collective self-defense measures against the sponsoring State. Meanwhile, Socialist law and Developing Nations views claim special rights to undisturbed external support of national liberation fronts and anti-colonial movements under self-determination or similar principles (in the Middle East context, Arab States’ support for the P.L.O.). For technical reasons, the Continental legal science view characteristics such foreign sponsorship in most circumstances as "mere intervention" (not justifying collective self-defense measures against the sponsoring State or the use of force on a foreign State’s territory against insurgents operating from cross-border sanctuaries under specific interpretations of U.N. Charter Article 2(4)). As a result, leading self-defense precedents supporting the American view have been rejected or recharacterized beyond recognition (e.g., The Caroline,[6] providing that self-defense requires the “necessity of self-defence is instant, overwhelming, and leaving no choice of means, and no  moment for deliberation” ). The American view itself has departed from traditional law principles from time to time in postulating a right for States to use armed force in a foreign State in support of its citizens’ fundamental human rights (impinged on by totalitarian governments) in terms of humanitarian intervention.[7]  Differing views are also apparent in connection with the use of armed force abroad in situations such as hostage rescues and anti-terrorism measures.

                        Here is where we find one issue concerning terrorism or threats more generally involving non-state actors.  The issue may be stated in terms of the self-defense formulation that, if only an “armed attack” is valid grounds for self-defense, does a non-state actor’s terrorist bombing rise to the level of an “armed attack”?  There is not much question that such activity could be criminalized under domestic law, so the real issue is whether states under international law may use armed force on the territory of another state to ward off the threat.  In legal terms it largely looks like a replay of “indirect aggression” analysis,[8] subject to a variety of claims that various treaty approaches to terrorism permit the use of armed force (except for the fact that the states harboring alleged terrorists are often not signatories to such treaties with the result that we are thrown back on customary law self-defense analysis).  On the one hand, non-US views of self-defense probably would characterize an individual bombing to be de minimus and so lacking as a justification for the use of force.  On the other hand, the non-state actor character itself may be used under non-US views to deny that self-defense as such is involved, instead claiming mere necessity which is then deemed an insufficient ground for the use of armed force.

 

            As the converse of aggression, the definitional construct view of self-defense also has not usually been considered to incorporate restrictive elements accompanying the traditional customary law concept of self-defense (most notably the necessity and proportionality requirements under the Caroline test, as required under the American view). Instead, as a military matter, a State considered to be the victim of aggression might equally well restrict its military operations to driving out invaders (without its own troops crossing its borders), or might carry the war to the enemy by its troops’ invasion of enemy territory. To the extent proportionality is required, however, there is precedent reaching back into the League period (the 1924 Greco-Bulgarian Frontier Incident) to the effect that excessive force initiated in putative self-defense itself is a violation (and may be characterized as aggression under some views).

            US self-defense claims premised on the Caroline face one final legal issue, namely that of immediacy which normally translates into claims about whether anticipatory self-defense is permissible or whether a potential State victim of aggression must wait for the invader to strike first.  The traditional US view is no, there is no requirement to take the first blow, but the Caroline position is hedged in terms of immediacy and the lack of other choices.  This is the hidden legal issue in the concept of “preemptive war,” understood as the use of armed force against an eventual enemy rather than a current threat.  To appearances, the Caroline and traditional US approaches focused on threat analysis rather than an enemy per se.[9]  Recalling legal analysis of first strike discussions around the time of the 1962 Cuban Missile Crisis, however, it would appear that the traditional US position on WMD and anticipatory self-defense still incorporates immediacy in the analysis even of preemptive nuclear strikes.  Thus the puzzling element in the Iraq situation, that the use of force argument seems to be made in terms of preemptive war beyond the bounds of the Caroline even while, at least at the time armed force was initially used, it was still possible in good faith to articulate an anticipatory self-defense position consistent with traditional US views of self-defense doctrine (regardless of the fact that other countries might analyze self-defense under UN Charter Article 51 textually in terms of requiring a prior “armed attack” as condition precedent).
 

            Postwar International Court of Justice cases addressing the use of armed force are only two in number.  The 1949 Corfu Channel Case ("Corfu Channel Case") involved the alleged State responsibility of Albania for foreign warships’ mine-inflicted losses suffered in its territorial waters during peacetime.[10]  As a substantive matter, the case’s peculiar posture presented substantial issues both in the area of the law of straits and territorial waters as well as the threat or use of force within another State’s jurisdiction, together with the basic issue of Albanian responsibility for the mine damage. For our purposes, it suffices to note that the decision in the Corfu Channel Case is inconsistent in important ways with the restrictive reading of U.N. Charter Article 2(4) customarily associated with the definitional construct approach to self-defense.
 

            The 1984 Case Concerning Military and Para-military Activities In and Against Nicaragua ("Contra Case")[11] is the Court’s most recent pronouncement on the self-defense concept. On a very basic level, if for no other reason, the opinion is noteworthy as an implicit confirmation by the International Court of Justice of the post-World War II was crimes tribunals’ rejection of the American view expressed in connection with its reservation to the Kellogg-Briand Pact (the position that a State is the sole judge of its own activities asserted to be in the exercise of self-defense rights). However, it attracted comparatively more attention among American jurists to compulsory jurisdiction issues and the International Court of Justice’s general role than to its substantive pronouncements on self-defense (U.S. disagreement with jurisdictional findings led to withdrawal from the case between the preliminary and merits phases). Further, the Court’s peculiar approach to limitations on its jurisdiction resulted in the application of what it referred to as a variety of customary law (despite liberal references to the U.N. and O.A.S. Charters), rendering interpretation of the precedent problematic. However, read closely it appears that the Court effectively adopted the definitional construct approach to self-defense, essentially tying it to the related interpretation of U.N. Charter Articles 2(4) and 51 (that U.N. Charter Article 2(4) restrictions on the use of armed force permit its use only under the direction of a U.N. organ or under a restrictive idea of self-defense keyed to Article 51's "armed attack" language), largely divorcing it from traditional customary law views of self-defense.
 

            A full discussion of the eventually settled and withdrawn case entitled Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America) ("Flight 655 Case," involving the 1988 downing of an Iranian civil airliner over the Persian Gulf by the U.S.S. Vincennes) is beyond the scope of this presentation.[12]  However, it is important under the circumstances precisely because it presents the problem of mistake under use of force law including issues of self-defense, necessity and related matters under U.N. Charter Articles 2(4) and 51. On its face, the substance of the Flight 655 Case is directed at international civil aviation treaty law. The United States' position was that, while the downing of Flight 655 was a tragic mistake, it was incidental to the Vincennes' lawful use of force in self-defense and so no legal responsibility attached to the act. Given views of civil aviation treaty law expressed following the 1983 Soviet downing of Korean Airlines Flight KE 007, it appeared that the civil aviation treaty undertakings are subject to the reservation of rights under the U.N. Charter (here in particular Articles 2(4) and 51). Thus, the issue was theoretically joined over the legality of the Vincennes' use of armed force against the aircraft. If it were lawful under the Charter, no violation of civil aviation law should have been recognized.  The case was effectively settled and dropped from the ICJ list, however, scholarly analysis was that liability existed despite a good faith mistake.[13]  On that basis we say there is no “oops” or good faith mistake doctrine absolving a state from responsibility for the unlawful but good faith use of armed force.  This is the hidden danger of self-judging self-defense;  you break it, you buy it.
 
Use of Force in Afghanistan and Iraq in Context

            We now return in summary fashion to the issue of legal doctrine as applied to the use of armed force in Afghanistan and Iraq presently.  Revisiting our list of terms, the largely non-legal ones include preemptive war, WMDs, terrorism, the war on terrorism and rogue states.  The traditional law of armed force is reasonably narrowly prescribed, and its parameters are set by collective security ideas under UN Charter Chapter VII and related ideas about self-defense law mostly under Articles 2(4) and 51.  There are at times substantial differences between US and some other countries’ views of permissible self-defense, but beyond the differences it would appear that even good faith mistakes about the presence of slef-defense law’s requirements is not an excuse, legally speaking, for the unjustified use of armed force.

 

            The differences between US and some other countries’ views are technical in nature but have surfaced traditionally in discussions of indirect aggression (sponsored insurgencies) and now terrorism involving non-State actors.  The issues at stake involve ideas about territorial integrity and whether States may intervene on the territory of another to alleviate an imminent threat.  Implicit in this formulation are concerns both about whether self-defense is necessary, and whether it can be carried out on the territory of another State without its consent.

 

            While some States might differ, the US followed its traditional views of self-defense in the use of force against Afghanistan and eventually the international community authorized the use of armed force under UN Charter Chapter VII.  Thus, the US’ use of armed force in Afghanistan is largely unproblematic from a legal standpoint.  However, Iraq is a different matter.  By pursuing the so-called preemptive war doctrine, which exceeded even traditional US self-defense views based on the Caroline precedent, the US use of armed force in Iraq in the absence of WMDs arguably goes too far.  The afterthought of trying to justify military intervention based on humanitarian intervention (the idea that Saddam Hussein was a bad man, and the US was liberating the Iraqi people) seems weak at best.  With this legal judgment in mind, our non-lawyer speakers can now pursue the legitimacy question in a broader context.

 


[1] See Schmitt,  Bellum Americanum Revisited:  U.S. Security Strategy and the Jus ad Bellum, 176 Military L. Rev. 364 (2003) (Sixteenth Waldemar A. Solf Lecture in International Law at the Judge Advocate General's School, Charlottesville).

[2] For clarity''s sake, we employ a shorthand in referring to different national views of international law in turn as the "American view," the Socialist law view," the "Continental legal science view" and the "Developing Nations view." Three caveats are in order. First, as might be guessed from the names, these views have been influenced traditionally both by political and legal factors. Second, views of the law have always differed within these broad categories (so monolithic characterization is overly simplistic). In particular, political changes in Eastern Europe make reference to Socialist law views seem dated.  However, the views arguably live on in still formally Socialist states such as in Asia the People’s Republic of China or Vietnam, or under nation views of the newer Eastern European democracies.  Finally, time permits only a summary overview of the true legal complexity in this area.

[3] To a certain degree, dating the modern "humanitarian" arms limitation movement in the law of war to the First Hague Peace Conference is somewhat arbitrary. On the sea warfare side, it might be argued that the abolition of privateering and regulation of neutral shipping rights in the 1856 Declaration of Paris dating back to the Crimean War is a precursor if not part of this movement, while the 1864 Geneva Agreement covers treatment of the wounded and the 1868 St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grams Weight clearly concerns the limitation of specific weapons (explosive bullets) due to the special dangers and carnage they would wreak on troops. Despite these early agreements, it seems more reasonable to date the "movement" aspect from the First Hague Peace Conference.

[4] Acknowledgment is due a continuing debate concerning the nature of constituent agreements creating international organizations (as is the U.N. Charter, although our interest lies chiefly in its Articles 2(4) and 51). See generally S. Rosenne, Developments in the law of treaties 1945-1986 181-258 (1989). Passing over longstanding academic distinctions, the debate is characterized by parties’ attitudes towards international organizations themselves and their political role. On the one hand, a constituent agreement may be viewed as a constitutional document, the interpretation of which may be given legitimately to its political or judicial organs. By analogy to a separation of powers analysis, it is possible that both organs have interpretive competencies. It is not clear, however, that a judicial interpretation generally would take precedence (and in the case of the International Court of Justice''s interpretations of the U.N. Charter it may not). Id. at 225-26, citing 12 U.N.C.I.O. 709 (declaration prepared by Committee II/2 subsequently adopted by the entire conference at San Francisco). On the other hand, a constituent agreement may be viewed as an international law agreement like any other, the provisions of which are subject to the standard interpretive approach. While Articles 2(4) and 51 on their face relate to substantive norms, it might be argued that they are so bound up in the politically oriented Security Council peacekeeping system that their proper interpretation must be consigned to it and not the International Court of Justice (the Security Council would remain free to request an advisory opinion or call upon the parties under Article 33(2) to settle their dispute before the International Court of Justice).  The issue is moot here to the extent a decision was made at a certain point to abandon the Security Council system itself in dealing with Iraq.

[5] In the immediate aftermath of postwar war crimes trials, the U.N. undertook to define the aggression concept in the context of formulating a restatement of the so-called Nuremberg principles and the Draft Code of Offenses Against Mankind as substantive law to guide a proposed international criminal tribunal as a permanent replacement for the international military tribunals criticized in some quarters as drumhead courts of the victorious Allies. In various venues, these efforts continued sporadically from the late 1940s through the early 1980s. The General Assembly has promulgated certain generalized statements of principles and compromise definitions in this area (purporting to be statements of existing law), most notably the Declaration on Principles of Internal Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, G.A. Resolution 2625 (XXXV 1970), and the Definition of Aggression Resolution, G.A. Resolution 3314 Annex (XXIX 1974). However, their drafting history, text and generalized nature permit the judgment that they provide better evidence of diplomatic compromise than the law. Different States" views of applicable law are incorporated in different and often conflicting individual provisions. As a result, by stressing different provisions within the same document, different States may advance their own views. By trying to be all things to all States, these documents fail to provide guidance to applicable law in individual circumstances.

[6] 2 J.B. Moore, Digest of International Law 412 (1906).

[7] Advocates of humanitarian intervention typically parce the language of U.N. Charter Article 2(4) in arguing that said intervention is consistent with the purposes of the United Nations.  As a general matter, however, unilateral humanitarian intervention outside the U.N. Security Council context has not found broad support outside the human rights community.  The explanation is simple, that states generally fear humanitarian intervention would be employed by strong states as an excuse for armed intervention into weaker states’ affairs.

[8] Compare Schmitt, Bellum Americanum Revisited:  U.S. Security Strategy and the Jus ad Bellum, 176 Military L. Rev. 364, 375-92 (2003).  Schmitt effectively reprises the Caroline analysis in reviewing responses immediately post-9/11, then notes seemingly puzzled, id. at 387 n. 76, the armed attack analysis challenging the application of self-defense.  The problem on a political level is that immediately post-9/11 and in conjunction more generally with the use of armed force in Afghanistan, the international community largely accepted the self-defense claims, which were not accepted by many states in the use of armed force against Iraq.

[9] This reorientation arguably can be traced all the way back to the NSS and predecessor white papers’ recharacterization in the post-Cold War world of moving the focus of threat analysis.

[10] 1949 I.C.J. 3 (merits). For a detailed analysis of the case see Linnan, Self-defense, Necessity and U.N. Collective Security Under International Law: American and Other Views, [1991] Duke J. Comp. and Int’l L. 57.

[11] 1984 I.C.J. 4 (merits). For a detailed analysis of self-defense aspects of the case see Linnan, Self-defense, Necessity and U.N. Collective Security Under International Law: American and Other Views, [1991] Duke J. Comp. and Int’l L. 57.   Curiously and perhaps understandably given the Contra Case’s politically inflammatory nature, the opinion studiously avoided examination or even significant mention of the legal concept of aggression as such (indirect or otherwise, whether on the part of the United States or Nicaragua).  A similar effect is visible in current discussions of the Iraq situation.

[12]  28 I.L.M. 843 91989) (International Court of Justice 1989 General List No. 79).

[13] Linnan, Iran Air Flight 655 and Beyond: Free Passage, Mistaken Self-Defense, and State Responsibility, 16 Yale J. Int'l L. 245 (1991).