Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism

Max Planck Yearbook of United Nations Law

Volumn 8, Issue , 2005, Pages 383-455

  Lietzau, William K ^a  

^a The Department of Defense

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EID: 85180072074     PISSN: 13894633     EISSN: None     Source Type: Book Series    
DOI: 10.1163/187574104x00094     Document Type: Chapter

References (203)

1. See, e.g., “Terrorists Hijack 4 Airliners, Destroy World Trade Center, Hit Pentagon; Hundreds Dead”, Washington Post, 12 September 2001, A1; E. Lipton, “Struggle to Tally All 9/11 Dead by Anniversary”, N.Y. Times, 11 September 2002, 1 (The final World Trade center death toll will drop no lower than about 2.750, not including the 10 hijackers. Counting the 233 killed in Washington and Pennsylvania, it will remain the second-bloodiest day in United States history, behind the battle of Antietam in the Civil War). The dead include citizens of more than 90 countries. A City of New York Office of the Comptroller estimated the overall economic loss to New York City resulting from the 9/11 attacks as totaling between US$ 82.8 and US$ 94.8 billion dollars. See .
2. Treaty of Westphalia, Peace Treaty between the Holy Roman Emperor and the King of France and their Respective Allies, 24 October 1648, available at: . Ending the Eighty Years’ War between Spain and the Dutch, and the German phase of the Thirty Years’ War, the Peace of Westphalia recognized the full territorial sovereignty of the Member States of the Holy Roman Empire, rendering the princes of the empire absolute sovereigns in their own dominions. See Encyclopaedia Britannica, 2002, DVD.
3. In 1945, World War II having drawn to an end, representatives of 50 countries met in San Francisco at the United Nations Conference on International Organization to draw up the United Nations Charter. Those delegates deliberated on the basis of proposals worked out by the representatives of China, the Soviet Union, the United Kingdom and the United States at Dumbarton Oaks, United States in August-October 1944. The Charter was signed on 26 June 1945 by the representatives of the 50 countries. Poland, which was not represented at the Conference, later signed the Charter and became one of the original 51 Member States. The United Nations officially came into existence on 24 October 1945, when the Charter had been ratified by China, France, the Soviet Union, the United Kingdom, the United States and a majority of other signatories. The creation of the United Nations is widely recognized as one of the most important events of the post-World War II period. That the delegates were influenced substantially by the war is reflected in the preamble to the U.N. Charter, which provides: “We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind ...”. The fundamental purpose of the Charter is the maintenance of international peace and security (Article 1 (1) U.N. Charter). See R.B. Russell, A history of the United Nations Charter – the Role of the United States 1940 – 1945, 1958, 964, providing an in-depth description of the formation of the Charter.
4. See H. Lauterpacht, “The Problem of the Revision of the Law of War”, BYIL 29 (1952), 360 et seq. (382).
5. Professor R. Wolfrum serves as Director of the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany.
6. R. Wolfrum, Introductory Remarks at the Max Planck Institute for Comparative Public Law and International Law—Conference on the American/European Dialogue: Different Perceptions of International Law?, ZaöRV 64 (2004), 255 et seq.
7. See, e.g., J. Chirac, “Iraq War Illegal”, United Press International, 21 March 2003: “French President Jacques Chirac on Friday said the U.S.-led war against Iraq was illegal. Speaking at a EU Summit in Brussels, Chirac threatened to veto a resolution handing control of the post-war reconstruction of the country to the United Nations”; D.A. Spritzer, “CSSD Declares Iraq War is Illegal”, Prague Post, 2 April 2003: “Fist pounding, whistling, and hot tempers characterized the March 30 Social democratic (CSSD) debate over Iraq, which yielded a resolution that condemns the U.S.-led war”; J.L. Tan, “Iraq War Was Illegal, Blix Says”, Press Assn., 5 March 2004.
8. G. von Glahn, Law Among Nations: An Introduction to Public International Law, 3rd edition, 1976, 38.
9. Ibid.
10. H. Lauterpacht, Oppenheim’s International Law: A Treatise, Vol. 1, Peace, 8th edition, 1955, 91-94; A. Nussbaum, A Concise History of the Law of Nations, 1954, 102-114.
11. See generally M. Walter, Just and Unjust Wars, 1977.
12. Ibid.
13. See article 1 of the Kellogg-Briand Pact of 27 August 1928, LNTS Vol. 94 No. 2137.
14. 191 nations are Members of the United Nations.
15. Article 2 (4) U.N. Charter.
16. Article 2 (3) U.N. Charter.
17. Article 2 (4) U.N. Charter.
18. Article 42 U.N. Charter providing: “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”
19. In its entirety, Article 51 U.N. Charter reads: “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 in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
20. Article 39 U.N. Charter.
21. Article 42 U.N. Charter.
22. For example, the United States invoked Article 51 U.N. Charter to justify the US invasion of Panama, see “Excerpts from Statement by Baker on U.S. Policy”, N.Y. Times, 21 December 1989, A9, and to justify air strikes against Libya in 1986, see M.N. Leich, “Contemporary Practice of the United States Relating to International Law”, AJIL 80 (1986), 612 et seq. (632). The United Kingdom invoked Article 51 U.N. Charter to justify military action against Argentina in the Falklands dispute, see D.E. Acevedo, “The U.S. Measures Against Argentina Resulting from the Malvinas Conflict”, AJIL 78 (1984), 323 et seq. (324). Israel claimed self-defense to justify attacks against terrorist organizations based in Jordan and Lebanon, and the Soviet Union did so to justify intervention in Afghanistan in 1979, see O. Schachter, “Self-Defense and the Rule of Law”, AJIL 83 (1989), 259 et seq. (263 note 23).
23. Article 51 U.N. Charter.
24. B. Simma (ed.), The Charter of the United Nations: A Commentary, 1994, 13-18.
25. Ibid., 663: “As the system of collective security has been of little practical significance, (...) international legal practice since 1945, contrary to the intentions of the authors of the Charter, has continued to be determined by unilateral use of force by states. (...) The right of self defense laid down in Art. 51 of the U.N. Charter, being the only exception to the prohibition of force of practical significance, has therefore become the pivotal point upon which disputes concerning the lawfulness of the use of force in inter-state relations usually concentrate.”
26. See T. Kearly, “Regulation of Preventive and Preemptive Force in the United Nations Charter: A Search for Original Intent”, Wyoming Law Review 3 (2003), 663 et seq.
27. Simma, see note 24, 678: “Though the founding members of the UN had at first waived the broad concept of self-defense by adopting Art. 51, subsequent state practice did not confirm that position in such a way as to amount to a uniform pattern of behavior.”
28. Ibid.
29. Ibid.
30. I. Brownlie, International Law and the Use of Force by States, 1963, 272 – 275: “The prevailing view refers, above all, to the purpose of the U.N. Charter, i.e., to restrict as far as possible the use of force by the individual state, and considers Art. 51 to exclude any self-defense other than in response to an armed attack. (...) The prevailing doctrine is opposed by an approach that regards the customary right of self-defense as not being affected by Article 51, but rather having only received a particular emphasis (...) this approach is intended to serve as a justification for traditional forms of self-defense, even of self-help in particular cases. (...) The content and scope of the customary right of self-defense are unclear and extend far into the sphere of self-help in such a way that its continuing existence would, to a considerable extent, reintroduce the unilateral use of force by states, the substantial abolition of which is intended by the U.N. Charter.”
31. Article 51 U.N. Charter: “Nothing in the present Charter shall impair the inherent right of ... self defence if an armed attack occurs against a Member of the United Nations (...).” (emphasis added).
32. Simma, see note 24, 669: “An armed attack only exists when force is used on a relatively large scale and with substantial effect.”
33. Corfu Channel Case, ICJ Reports, 1949, 4 et seq. The case concerned Albanian claims that its territorial sovereignty was violated by British warships passing through the Corfu Channel part of which involved Albanian territorial waters. In the context of a determination of whether the British passage was “innocent,” the ICJ quoted a British telegram concerning the action that stated that British passage “was made with ships at action stations in order that they might be able to retaliate quickly if fired upon again.” The ICJ stated that, “[I]n view of the firing from the Albanian battery ... [earlier], this measure of precaution cannot, in itself, be regarded as unreasonable.”
34. See A.C. Arend/ R.J. Beck, International Law and the Use of Force beyond the U.N. Charter Paradigm, 1993, Chap. 7; J. Winthrop, “International Law Notes, Attack on the Iraqi Intelligence Service Headquarters”, Army Law (August 1993), 46; Simma, see note 24, 124.
35. Letter from Ambassador J. Scali, US Representative to the United Nations to the Secretary-General, 14 May 1975, quoted in: E.C. McDowell, “US Department of State”, Digest of United States Practice 777, 1978, stating that “my Government reserves the right to take such measures as may be necessary to protect the lives of American citizens and property, including appropriate measures of self-defense under Article 51 of the United Nations Charter.”
36. See L. Henkin, “Use of Force: Law and U.S. Policy”, in: id. (ed.), Right v. Might: International Law and The Use of Force, 1989, 37.
37. See “Deadly Attacks Bombs Rip Two African Capitals”, Akron Beacon Journal, 8 August 1998, A1; D. Johnston /S.L. Myers, “Investigation of Attack on U.S. Destroyer Moving Slowly”, N.Y. Times, 30 October 2000, A10.
38. Arend/ Beck, see note 34, 72, citing Y. Dinstein, War, Aggression and Self-Defense, 1988, 172: “While some commentators believe that customary international law permits self-defense only after an armed attack occurs, the more common view is that the customary right of self-defense is also accorded to States as a preventive measure (taken in “anticipation” of an armed attack, and not merely in response to an attack that has actually occurred).” H.B. Robertson states that the terms anticipatory self-defense, preemptive self-defense, and preventive war are terms used to describe a more aggressive use of force in self-defense. See generally, H.B. Robertson, “Contemporary International Law: Relevant to Today’s World?”, in: J.N. Moore/ R.F. Turner (eds), Readings on International Law From the Naval War College Review 1978-1994, 1994, 3. For purposes of this paper, the most commonly used terms: anticipatory self-defense and preemptive self-defense, are used interchangeably to describe a use of force to prevent a specific anticipated attack by denying an adversary the means of attack.
39. The attack followed the eviction of United Nations peace-keeping forces from the area by the Egyptian president, the blocking of Israel’s southern port of Eilat, and the conclusion of a military pact between Jordan and Egypt. M.N. Shaw, International Law, 1991, 694. See generally J.N. Moore (ed.), The Arab-Israeli Conflict, 1974.
40. Simma, see note 24, 676: “Since the (alleged) imminence of an attack cannot usually be assessed by means of objective criteria, any decision on this point would necessarily have to be left to the discretion of the state concerned. The manifest risk of abuse of that discretion which thus emerges would de facto undermine the restriction to one particular case of the right of self-defense.”
41. See O. Schachter, “The Right of States to Use Armed Force”, Mich. L. Rev. 82 (1984), 1620 et seq. (1634-1635).
42. Simma, see note 24, 663.
43. Article 51 U.N. Charter.
44. Dinstein, see note 38, 169-170; but Simma, see note 24, 666 note 25, contending that “the appropriate debate is whether Article 51’s “inherent” language recognizes that the right exists with respect to non-UN members as well; it is not intended to evince “a right of self-defense existing independently from the Charter under natural Law.”
45. See G.B. Roberts, “Self Help in Combating State-Sponsored Terrorism: Self-Defense and Peacetime Reprisals”, Case W. Res. J. Int’l L. 19 (1978), 243 seq. (273-274).
46. Schachter, see note 22.
47. As a threshold matter, peacetime reprisals must be distinguished from belligerent reprisals during armed conflict. According to Oppenheim, the former are “resorted to for the purpose of settling a conflict without going to war, the latter [belligerent reprisals] are retaliations in order to compel an enemy guilty of a certain illegal act of warfare to comply with the laws of war.” L. Oppenheim, International Law, Vol. 2, 7th edition, 1948, 143.
48. See D.W. Bowett, “Reprisals Involving Recourse to Armed Force”, AJIL 66 (1972), 1 et seq. (1), explaining that “few propositions about international law have enjoyed more support than the proposition that, under the Charter of the United Nations, the use of force by way of reprisals is illegal.”
49. A/RES/2625 (XXV) of 24 October 1970. As a threshold matter, peacetime reprisals must be distinguished from belligerent reprisals during armed conflict. See also A. Roberts/ R. Guelff (eds), Documents on the Law of War, 1982, 15: “A reprisal is an otherwise illegal act of retaliation carried out in response to illegal acts of warfare and intended to cause the enemy to comply with the law.”
50. Bowett, see note 48, 1.
51. Ibid.
52. Military and Paramilitary Activities (Nicaragua v. US), ICJ Reports 1986, 14 et seq., (101-103), holding that a state is responsible for “sending by or on [its] behalf armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to an actual armed attack conducted by regular forces, or its substantial involvement therein.”
53. J. Lobel, “The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan”, Yale J. Int’l L. 24 (1999), 537 et seq. (541).
54. United States Diplomatic and Consular Staff in Tehran, (U.S. v. Iran), ICJ Reports 1980, 3 et seq. (42). (hereinafter Iranian Hostages Case).
55. See, e.g., R. Erickson, Legitimate Use of Force Against State Sponsored Terrorism, 1989, 100-103; W. Solf, “International Terrorism in Armed Conflict”, in: H.H. Han, Terrorism and Political Violence, 1993, 317-331; M. Lohr, “Legal Analysis of U.S. Military Responses to State-Sponsored International Terrorism”, Naval Law Review 34 (1985), 1 et seq. (7-9).
56. Cf. article 8 of the International Convention for the Suppression of Terrorist Bombing, 15 December 1997. See also article 10 International Convention for the Suppression of the Financing of Terrorism, 9 December 1999. In addition, the Security Council has enacted S/RES/1373, imposing e.g. binding obligations upon states to prevent and suppress the financing of terrorist acts, to refrain from providing any support to terrorists, to deny safe haven to terrorists, to develop effective border controls, and to bring to justice those who commit terrorist acts, and to eliminate the supply of weapons to terrorists, S/RES/1373 (2001) of 28 September 2001, paras 1-2. See also A.D. Sofaer, “Sixth Annual Waldemar A. Solf Lecture in International Terrorism, the Law, and National Defense”, Mil. L. Rev. 126 (1989), 89 et seq. (108). If not a crime of universal jurisdiction, terrorism is at the very least a crime of expanded jurisdiction. The entry into force of several counter-terrorism conventions that promulgate an aut dedere aut punire regime lends credence to the fact that even prior to 9/11, there was a growing consensus view that passive toleration of terrorist presence is no longer acceptable. Restatement (Third) of the Foreign Relations Law of the United States 404 (1987)—(The courts may have jurisdiction for “certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, even absent any specific connection between the state and the offense. When proceeding on that jurisdictional premise, neither the nationality or the accused or the victim, nor the location of the crime is significant. The underlying assumption is that the crimes are offenses against the law of nations or against humanity and that the prosecuting nation is acting for all nations”). See also Demjanjuk v. Petrovsky, 776 F. 2d 571, 582-83 (6th Cir. 1985).
57. Simma, see note 24, 676: “Self-defense is thus permissible only after the armed attack has been launched. (...) Therefore Art. 51 has to be interpreted narrowly as containing a prohibition of anticipatory self-defense”; accord M. Akehurst, A Modern Introduction to International Law, 1984, 223.
58. See, e.g., R. Sadurska, “Threats of Force”, AJIL 82 (1988), 239 et seq. (256-260).
59. But see M. Bothe, “Terrorism and the Legality of Preemptive Force”, EJIL (2003), 227 et seq., arguing that the preemptive strike doctrine of National Security Strategy 2002, adapts the perceived threats concept so as to unacceptably expand the right of anticipatory self-defense.
60. See, e.g., Brownlie, see note 30, 275-280; L. Henkin, How Nations Behave: Law and Foreign Policy, 2nd edition, 1979, 141; but see M.S. McDougal, “The Soviet-Cuban Quarantine and Self-Defense”, AJIL 57 (1963), 597 et seq. (599), arguing that the Charter’s drafters, by inserting Article 51, did not intend to impose new limitations on the self-defense right; Schachter, see note 41, 1634-1635; A.D. Sofaer, “International Law and Kosovo”, Stanford J. Int’l L. 36 (2000), 1 et seq. (16); T.M. Franck, Recourse to Force: State Action Against Threats and Armed Attacks, 2002, 97-99.
61. See generally S.D. Murphy, “Terrorism and the Concept of “Armed Attack” in Article 51 of the U.N. Charter”, Harv. Int’l L. J. 43 (2002), 41 et seq.; C. Stahn, “International Law Under Fire: Terrorist Acts as ‘Armed Attack’: The Right to Self-Defense, Article 51 (1/2) of the U.N. Charter, and International Terrorism”, Fletcher Forum of World Affairs 27 (2003), 35 et seq.
62. But see Y. Dinstein, War, Aggression and Self-Defense, 2001, 165-169. Criticizing anticipatory self-defense and stressing the need for a precipitating armed attack. Dinstein would apparently not impose a temporal requirement on self-defense action as discussed below.
63. Article 51 U.N. Charter.
64. See E. Clift/ J. Nelson, “Official Tells of Decision-Making; Reagan OKd Plans for Earlier Attacks”, L.A. Times, 16 April 1986, 1.1. On 5 April 1986, a bomb exploded in a discotheque in Berlin frequented by United States service personnel. Of the 200 injured, 63 were American soldiers; one soldier and one civilian were killed. On the late evening of 15 April and early morning of 16 April 1986, under the code name El Dorado Canyon, the United States launched a series of military air strikes against ground targets inside Libya. The timing of the attack was such that while some of the strike aircraft were still in the air, President Reagan was able to address the US public and much of the world. He emphasized that this action was a matter of US self-defense against Libya’s state-sponsored terrorism. In part, he stated: “Self-defense is not only our right, it is our duty. It is the purpose behind the mission (...) a mission fully consistent with Article 51 of the U.N. Charter.” The President claimed “irrefutable proof” that Libya had directed the terrorist bombing of the disco, citing American intelligence interception of a message from Gaddafi ordering an attack on Americans “to cause maximum and indiscriminate casualties.”
65. See M. J. Glennon, “Preempting Terrorism; The Case for Anticipatory Self-Defense”, Wkly. Standard, 28 January 2002, 17, 24; D. Polman, “‘War’ is Now More than a Metaphor; Deadly Terror Attacks – and the Promised U.S. Response – Make a Long Overused Word Mean Just What It Says”, Phila. Inquirer, 13 September 2001, A5. One could argue that the concept of anticipatory self-defense was not called into question during the initial intervention in Afghanistan. This is because the primary criticism of the doctrine for some had always been the absence of an actual “armed attack”. The events of 9/11 amounted to an armed attack on the United States, and the close association between the Taliban and the perpetrators of the attack justified an imputation of responsibility to Afghanistan. In fact, however, the cross-border attack did little to alter the anticipatory nature of the United States response. The nature of a terrorist attack is such that it is temporally confined – there is no continuing attack that requires immediate defensive measures. Thus, the armed response in this instance was really designed to prevent additional future terrorist attacks. Regardless of the terminology used, however, the United States’ responsive intervention into Afghanistan does not fit neatly into the language of Article 51 of the U.N. Charter. It has, nevertheless, been widely accepted as a lawful act of self-defense.
66. The US did not initiate intervention in Afghanistan until 8 October 2001, 27 days after the attacks of 11 September; see also Article 51 U.N. Charter.
67. See S/RES/1368 (2001) of 12 September 2001: The Security Council, Reaffirming the principles and purposes of the Charter of the United Nations, Determined to combat by all means threats to international peace and security caused by terrorist acts, Recognizing the inherent right of individual or collective self-defence in accordance with the Charter, 1. Unequivocally condemns in the strongest terms the horrifying terrorist attacks which took place on 11 September 2001 in New York, Washington, D.C. and Pennsylvania and regards such acts, like any act of international terrorism, as a threat to international peace and security; (...)
68. As used in this paper, the term “unsanctioned” refers to uses of force not expressly authorized by the United Nations. A classic case study of unsanctioned self-defense against the weapons of mass destruction threat is the 1981 Israeli air strike against the Osirik nuclear reactor outside Baghdad. Although one justification for the attack was the existence of an armed conflict between Israel and Iraq, Israel also claimed that “in removing this terrible nuclear threat to its existence, Israel was only exercising its legitimate right of self-defense within the meaning of this term in international law and as preserved also under the United Nations Charter.” In assessing the merits of this argument, it is important to note that Israel had fought Iraq three times (1948, 1967, 1973) and Iraq denied the right of Israel to exist as a state. Israel concluded that it was a future target of Iraqi nuclear capability, which it estimated would be operational by 1985. See A. D’Amato, “Israel’s Air Strike Upon the Iraqi Nuclear Reactor”, AJIL 77 (1983), 584 et seq. Despite the proportional nature of the attack, Israel’s actions were widely condemned. See also R.F. Teplitz, “Taking Assassination Attempts Seriously: Did the United States Violate International Law in Forcefully Responding to the Iraqi Plot to Kill George Bush?”, Cornell Int’l L. J. 28 (1995), 569 et seq. (576-583).
69. See R. Roeper, “Even Towering Figures are Often Unknowns”, Chicago Sun Times, 14 April 2003, 11; “Saddam and His Statue Take a Fall”, Tulsa World, 10 April 2003, A18.
70. See Bowett, see note 48, 1, explaining that “few propositions about international law have enjoyed more support than the proposition that, under the Charter of the United Nations, the use of force by way of reprisals is illegal.”
71. See Lobel, see note 53, 539; B. Woodward, “CIA Paid Afghans to Track Bin Laden: Team of 15 Recruits Operated Since 1998”, Wash. Post, 23 December 2001, A1.
72. See B. Gellman, “U.S. Supects Al Qaeda Got Nerve Agent from Iraqis; Analysts: Chemical May Be VX, And Was Smuggled Via Turkey”, Wash. Post, 12 December 2002, A1. In 1998, the Clinton administration asserted that Iraq provided technical assistance in the construction of a VX production facility in Sudan, undertaken jointly with Al Qaeda. In retaliation for Al Qaeda’s August 1998 truck bombing of US embassies in Kenya and Tanzania, President Bill Clinton ordered the launch of Tomahawk missiles to destroy the facility, alleged to operate under cover of the al Shifa pharmaceutical plant in Khartoum, Sudan’s capital. See also Lobel, see note 53, 556: Noting that most nations, including U.S. NATO allies such as France, Italy, Britain, and Germany, appear to believe that the United States attacked the wrong factory in Sudan.
73. See, e.g., W.M. Reisman/ J.E. Baker, Regulating Covert Action, 1992, 93, 101-102.
74. Article 33 U.N. Charter: “(1) The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. (2) The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.”
75. Restatement of the Law, Third, Foreign Relations Law of the United States, 1987, § 905, comment g.
76. See Roberts, see note 45, 277.
77. See Bowett, see note 48, 3.
78. Ibid.
79. Bowett, see note 48, 8, quoting S/RES/188 (1964) of 9 April 1964.
80. See also Bowett, see note 48, quoting Doc. S/PV.1109 (1964) “It will also be abundantly plain that, contrary to what a number of speakers have said or implied, this action was not a retaliation or reprisal. There is, in existing law, a clear distinction drawn between two forms of self-help. One, which is of a retributive or punitive nature, is termed ‘retaliation’ or ‘reprisal’; the other, which is expressly contemplated and authorized by the Charter, is self-defence against armed attack. (...) it is clear that the use of armed force to repel or prevent an attack - i.e., legitimate action of a defensive nature - may sometimes have to take the form of a counter-attack.”
81. Ibid.
82. S/RES/188 (1964) of 9 April 1964, denouncing the reprisals and “deploring” the British action.
83. M. Whiteman, Digest of International Law, Vol. 12 (1971) 173-4.
84. Ibid.
85. See Bowett, see note 48, 5-6.
86. Ibid.
87. Bowett, see note 48, 33-36.
88. Ibid.
89. See M.J. Kelly, “Time Warp to 1945 - Resurrection of the Reprisal and Anticipatory Self-Defense Doctrines in International Law”, Journal of Transnational Law & Policy 13 (2003), 1 et seq.; Whiteman, see note 83, 149.
90. See Responsibility of Germany for Damage Caused in the Portuguese Colonies in the South of Africa (hereinafter Naulilaa), 8 Trib. Arb. Mixtes 409 (Port.- Ger. 1928), translated and discussed in W.W. Bishop Jr., International Law: Cases and Materials, 3rd edition, 1971, 903-904. The case grew out of Portugal’s neutrality in World War I. In October of 1921, German officials entered Portuguese Angola to secure the purchase of supplies. Misunderstandings ensued, a Portuguese man fired a weapon, and three Germans were killed. German troops, in alleged reprisals, destroyed
91. Ibid.
92. E. Kwakwa, The International Law of Armed Conflict: Personal and Material Fields of Application, 1992, 130; see also Kelly, see note 89, 12-21.
93. President George W. Bush, Address to a Joint Session of Congress and the American People, Washington DC, 20 September 2001, available at: .
94. 95 See below.
95. “Bush Address Doesn’t Play So Well in Russia”, The Current Digest of The Post-Soviet Press, Vol. 54 No. 5, 27 February 2002: “The U.S. president said (this is also part of his doctrine) that if the national governments of various countries prove unable to stop terrorists on their territory, America will do it for them. The Philippine justice minister, Hernando Perez, replied, ‘This isn’t the tone in which the president of a friendly country should speak to another friendly country.’” Among the NATO allies in Europe, Britain alone supported Bush. The others expressed the concern that America was once again acting on its own.
96. The United States demanded that those controlling relevant territory in Afghanistan (the Taliban) turn over the leaders of Al Qaeda to the United States, close all terrorist training camps in Afghanistan, and provide the United States with full access to the camps to confirm their closure. The Taliban declined to do so. Because the United States did not recognize the Taliban regime as the government of Afghanistan and therefore had no diplomatic relations with them, the US demands and the Taliban’s rejection of those demands were communicated through the government of Pakistan. See R. Chandrasekaran, “Taliban Refuses to Surrender bin Laden: U.S. Develops Options for Military Action”, Wash. Post, 19 September 2001, A1. Further, President Bush issued the demands in a widely reported speech to a joint session of the US Congress, see G.W. Bush, see note 93; see also J.F. Harris/ M. Allen, “President Details Global War On Terrorists and Supporters”, Wash. Post, 21 September 2001, A1.
97. See G. Travalio/ J. Altenburg, “State Responsibility for Sponsorship of Terrorist and Insurgent Groups: Terrorism, State Responsibility, and the Use of Military Force”, Chicago Journal of International Law 4 (2003), 97 et seq.
98. The principle of proportionality, as expressed in US Army Field Manuals, mandates that the anticipated loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained. Dep’t of the Army, Field Manual 27-10, The Law of Land Warfare (July 1956), para. 41, change 1 (hereinafter FM 27-10). Proportionality is a key element of self-defense under Article 51 of the U.N. Charter, Simma, see note 24, 673.
99. See, e.g., J.M. Beard, “America’s New War on Terror: The Case for Self-Defense Under International Law”, Harvard Journal of Law and Public Policy 25 (2002), 559 et seq.; T.M. Franck, “Terrorism and the Right of Self-Defense”, AJIL 95 (2001), 839 et seq.; M.E. O’Connell, “Lawful Responses to Terrorism”, Jurist, 18 September 2001 available at: .
100. See M.J. Kelly, “Understanding September 11th - An International Legal Perspective on the War in Afghanistan”, Creighton Law Review 35 (2002), 283 et seq. (284).
101. See J.A. Cohan, “Formulation of a State’s Response to Terrorism and State-Sponsored Terrorism”, Pace Int’l Law Rev. 14 (2002), 77 et seq.
102. See 9/11 Resolution, see note 67.
103. The second factor, touching on issues of peacetime reprisal, is potentially relevant for two unrelated reasons. If deterrence is achievable by sending a message that terrorist attacks will be responded to, then it has value in its own right. With respect to Operation Enduring Freedom, however, it probably played a role in several other ways. Though the law has for at least 50 years rejected a retributive component to uses of force under Article 51, there is little doubt that the visceral reaction of international observers was one that would forgive some intellectual rigor in legal reasoning. More importantly, however, it provides evidence of intent and capability, thus bolstering the “necessity” component subsumed by several of the above factors and found in traditional Caroline self-defense analysis.
104. See below note 120 and accompanying text.
105. M.N. Leich, US Dep’t of State, Cumulative Digest of United States Practice in International Law 1981-1988, 1995, 2933-2935. On 19 June 1981, the Security Council, by unanimous vote, “[s]trongly condemn[ed] the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct”, S/RES/487(1981) of 19 June 1981. It appears the touchstone to legality was not the relevance of the target to capability, but a combination of factors, including the absence, at the time, of a demonstration of hostile intent or a precipitating use of force by Iraq.
106. See Woodward, see note 71.
107. See W.M. Reisman, “International Legal Responses to Terrorism,” Houston Journal of International Law 22 (1999), 3 et seq. (31), quoting S.D. Murphy, “Contemporary Practice of the United States Relating to International Law,” AJIL 93 (1999), 161 et seq.
108. National Public Radio Morning Edition (NPR), transcript # 98082115-210, 21 August 1998, available at: .
109. See Address to the Nation on Military Action Against Terrorist Sites in Afghanistan and Sudan, 34 Wkly. Comp. Pres. Doc. 1643, 20 August 1998.
110. A number of US allies including Australia, Great Britain, Germany, Israel, New Zealand and Spain openly supported the attacks, while France and Italy offered tepid support. See “World Reaction”, USA Today, 21 August 1998, 6A; U. Pan / T. Conner, “Ignored Boris Goes Ballistic”, N.Y. Post, 22 August 1998, A5. China, Cuba, Pakistan, Russia and several Arab countries condemned the attacks, see “Allies Back U.S. Strikes; Russia Among the Dissenters”, Minnesota Star Tribune, 22 August 1998, 6A; “Some Countries Back U.S. Strikes; Others See a Diversion,” Minnesota Star Tribune, 21 August 1998, 6A. UN Secretary-General Kofi Annan later criticized “individual actions” against terrorism, apparently implying his disapproval of the forcible measures, see “Annan Faults States’ ‘Individual Actions’ Against Terrorism”, Agence Fr.-Presse, 21 September 1998.
111. See T. Atlas/ R. Mosely, “‘Smoking Gun’ for Sudan Raid Now in Doubt”, Chicago Tribune, 28 August 1998, 1; C. Lynch, “Sudan Working for Better Ties with U.S.,” Boston Globe, 7 October 1998, A8, noting comments by the French Foreign Minister that America’s allies are willing to condone unilateral attacks in certain circumstances, but “you must not get it wrong.” See Lobel, see note 53, 556: “That most nations believe that the United States probably did ‘get it wrong’ in striking the al Shifa plant, means they do not believe the action was legal.”
112. See R. Pyle, “Gorbachev Says Bush had ‘Hidden Agenda’ in Invading Iraq”, Associated Press Worldstream, 7 October 2003.
113. See “Greek Defence Minister Fears New U.S. Arrogance After Iraq”, Agence France Presse, 14 April 2003; “Europeans Dismayed by U.S. Arrogance in World Issues”, Xinhua News Agency, 10 April 2001; “U.S. Arrogance Irks Allies”, Chicago Sun Times, 29 June 1997, 34.
114. Kyoto Protocol to the United Nations Framework Convention on Climate Change, ILM 37 (1998), 22 et seq. (hereinafter Kyoto Protocol). See also T. Watson/ J. Weisman, “6 Ways to Combat Global Warming. Debate Moves Past Whether It’s Happening to What, If Anything, Should be Done About It”, USA Today, 16 July 2001, 1A. The treaty aimed to cut emissions of so-called greenhouse gases, which are blamed for warming the Earth’s atmosphere, by 5.2 per cent from their 1990 levels. Bush announced in March 2001 that the United States would not accept the treaty, arguing that the protocol was flawed and would harm the U.S. economy.
115. Rome Statute of the International Criminal Court, Doc. A/CONF.183/13 Vol. I. See also J. Rabkin, “Don’t Tread on Us! How to Handle the International Criminal Court”, The Weekly Standard, Vol. 7, No. 35, 20 May 2002, 11: “After a year of internal debate, the Bush administration announced a decision last week: The United States would no longer consider itself a signatory to the Rome Treaty establishing the International Criminal Court.” See in this respect also article of M. Benzing, in this Volume.
116. Comprehensive Nuclear Test Ban Treaty (hereinafter Comprehensive Test Ban Treaty or CTBT), see text under . On 13 October 1999, the US Senate voted not to ratify the CTBT, see 145 Cong. Rec. S12504-01 (daily ed. Oct. 13, 1999) (Senate Vote on Ratification of the Comprehensive Nuclear Test Ban Treaty). See A.R. Kuchta, “A Closer Look: The U.S. Senate’s Failure to Ratify the Comprehensive Test Ban Treaty”, Dick. J. Int’l L. 19 (2001), 333 et seq. (535). See also J. Kelley, “U.S. Rebuked on Test Ban Vote Nations Cite ‘Dangerous’ Message”, USA Today, 15 October 1999, 01A; B. Crossette, “World Leaders Criticize the U.S. for Defeat of Test Ban Treaty”, Sun Sentinel, 15 October 1999, 12A.
117. Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, at: (hereinafter Biological Weapons Convention) and the Protocol to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxic Weapons and on Their Destruction, at: (hereinafter Draft Protocol). Six and a half years after negotiations of the Draft Protocol for enforcing compliance with the Biological Weapons Convention began, the United States rejected both the draft Protocol and any further efforts to create a Protocol. On 25 July 2001, Ambassador Donald Mahley, the head of the US Ad Hoc Group delegation, in a speech before the Ad Hoc Group, said the United States would not support the current text, even were it changed. The United States has numerous reasons for rejecting the draft Protocol. One of the main concerns of the Bush Administration was that the measures proposed in the draft Protocol were intrusive on the US Government and private companies, putting national security and commercial proprietary information at risk. According to the United States, the safeguards included in the draft Protocol with a view to protecting proprietary information were inadequate, the inspection regime envisioned by the draft Protocol was insufficient to deter or impede a rogue state’s ability to have a biological warfare program, and State Parties least likely to be proliferators would be most often targeted. The United States reasserted its commitment to finding other tools to strengthen the Biological Weapons Convention. See J. Rissanen, United States’ Position on Protocol Unmoved, 15 October 2001, available at: ; see also US Department of State International Information Programs, Wolfowitz Cites Importance of Biological Weapons Treaty, 28 July 2001, available at: .
118. See J. Pedigo, “Rogue States, Weapons of Mass Destruction, and Terrorism: Was Security Council Approval Necessary for the Invasion of Iraq?”, Ga. J. Int’l & Comp. L. 32 (2004), 199 et seq. (203).
119. On 2 August 1990, Iraq invaded Kuwait. The Security Council quickly adopted UN Security Council Resolution 660, the first of many condemning Iraq’s actions and demanding withdrawal from Kuwait, see S/RES/660 (1990) of 2 August 1990. Additional Council actions were designed to apply further pressure and bring about Iraq’s withdrawal, see S/RES/661 (1990) of 6 August 1990, imposing broad sanctions on Iraq. S/RES/662 (1990) of 9 August 1990, deciding that Iraq’s annexation of Kuwait was null and void and demanding that Iraq rescind its actions purporting to annex it. S/RES/664 (1990) of 18 August 1990, reaffirming those decisions and demanding that Iraq rescind its order that foreign diplomatic and consular missions in Kuwait be closed, facilitate departure and consular access
120. for nations of third states, and take no action to jeopardize their safety, security, or health. S/RES/665 (1990) of 25 August 1990, calling upon Member States to use such measures as may be necessary to ensure implementation of trade restrictions. S/RES/667 (1990) of 16 September 1990, demanding that Iraq release foreign nationals that it had abducted. S/RES/670 (1990) of 25 September 1990, imposing restrictions on air traffic. S/RES/674 (1990) of 29 October 1990, inviting states to collate and make available to the Council information on grave breaches committed by Iraq. Eventually on 29 November 1990, the Council adopted UN Security Council Resolution 678, which authorized the use of “all necessary means” to uphold and implement Resolution 660 and subsequent relevant resolutions, and to restore international peace and security in the area. The resolution provided Iraq with “one final opportunity” to comply with the Council’s earlier decisions and authorized the use of force “unless Iraq on or before 15 January 1991 fully implements” the Council’s resolutions. It specifically invoked the authority of Chapter VII. On 3 April 1991, the Council adopted Resolution 687, that resulted in a cessation of hostilities but did not return the situation to the status quo ante. Rather it declared that, upon official Iraqi acceptance of its provisions, a formal cease-fire would take effect, and it imposed several conditions on Iraq, including extensive obligations related to the regime’s possession of weapons of mass destruction. As the Council described it, Resolution 687 provided the “conditions essential to the restoration of peace and security.” See W.H. IV Taft/ T. Buchwald, “Preemption, Iraq, and International Law”, AJIL 97 (2003), 557 et seq. Neither the United Kingdom nor Australia invoked self-defense as a legal justification for military action against Iraq. See UK Attorney General Lord P.H. Goldsmith, Legal Basis for Use of Force Against Iraq, 17 March 2003, available at: ; see also the Australian Attorney General’s Department and the Department of Foreign Affairs and Trade, Memorandum of Advice on the Use of Force Against Iraq, 18 March 2003, available at: . Nor did the United States invoke its inherent right of self-defense under Article 51 of the U.N. Charter in the legal justification it submitted to the UN Security Council, letter dated 20 March 2003 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, Doc. S/2003/351 (2003), arguing that “the actions being taken are authorized under existing Council resolutions, including its resolutions 678 (1990) and 687 (1991).”
121. Ibid.
122. See, e.g., Doc. S/PV.2963 (1990), 76-77, reporting Mr. Al-Ashtal, Yemen, referring to Security Council Resolution 678, as “in effect authorizing States to use force” and calling it a “war resolution”; ibid., 58, reporting Mr. Malmierca Peoli, Cuba, calling the resolution “a virtual declaration of war” and a “deadline for war”; ibid., 62, reporting Mr. Qian Qichen, China, stating that “all necessary means” is language that “in essence, permits the use of military action.”
123. See, e.g., S/RES/707 (1991) of 15 August 1991, stating that Resolution 687 itself described “conditions essential to the restoration of peace and security”; S/RES/1441 (2002) of 8 November 2002, 13-14, finding, inter alia, Iraq’s development of weapons of mass destruction (WMD), support for terrorism and repression of the civilian population presented a continuing threat to international peace and security.
124. See Taft/ Buchwald, see note 120, 557. See generally, N. Rostow, “Determining the Lawfulness of the 2003 Campaign against Iraq”, discussing the factual predicate and legal underpinnings for the Iraq campaign, copy on file with author. But see, T.M. Franck, “What Happens Now? The United Nations after Iraq”, AJIL 97 (2003), 607 et seq.; R.A. Falk, “What Future for the UN Charter System of War Prevention”, AJIL 97 (2003), 590 et seq., arguing that additional Security Council authorization was required.
125. S/RES/687 (1991) of 3 April 1991.
126. 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, 36 Stat. 2277, 1 Bevans 631.
127. See, e.g., J. Yoo, “International Law and the War in Iraq”, AJIL 97 (2003), 563 et seq., arguing that law governing armistices justified the invasion of Iraq by US forces. Yoo also contends that well-established treaty law would permit the invasion based on a “material breach” by Iraq (575). This argument would require one to conceive of the pertinent Security Council resolution as a multilateral treaty.
128. But see Taft/ Buchwald, see note 120, 559, arguing that Resolution 687 did not return the situation to the status quo ante.
129. Leich, see note 106, 2933-2935.
130. S/RES/1441, see note 123.
131. See, e.g., S/RES/1031 (1995) of 15 December 1995, terminating use of force authority associated with a previous resolution regarding Bosnia; S/RES/929 (1994) of 22 June 1994, limiting to two-months a previously approved mission regarding Rwanda.
132. Letter to Congressional Leaders Reporting on Iraq’s Compliance with United Nations Security Council Resolutions (19 January 1993), 2 Pub. Papers of George Bush, 1993, 2269-2270. Interestingly, Secretary-General Boutros Boutros-Ghali publicly confirmed his belief in the legality of the 1993 raid. See Transcript of the Press Conference by Secretary-General, Boutros Boutros-Ghali, Following Diplomatic Press Club Luncheon in Paris on 14 January, Doc. SG/SM/4902/Rev.1 (1993), 1.
133. See D. Brown, “Enforcing Arms Control Agreements by Military Force: Iraq and the 800-Pound Gorilla”, Hastings Int’l & Comp. L. Rev. 26 (2003), 159 et seq. (171). On 16-19 December 1998, in a campaign known as Operation Desert Fox, US and British forces conducted a series of strikes against military targets in Iraq. The purpose of the operation was to attack Iraq’s weapons of mass destruction and “its ability to threaten its neighbors.” The operation was in direct response to Iraq’s failure to cooperate with the UN in its effort to oversee Iraqi disarmament. Writers on the subject generally agree that Iraq was not in compliance with the disarmament and inspection provisions of S/RES/687. While the rationale for this operation relied on Iraq’s failure to comply with the original cease-fire terms that abated the Persian Gulf War of 1991, Desert Fox received far less international support.
134. S/RES/1441, see note 123, para. 12.
135. See Yoo, see note 127. The British Government, which clearly desired an additional resolution authorizing force, explained that “Resolution 1441 would in terms have provided that a further decision of the Security Council to sanction force was required if that had been intended. Thus, all that Resolution 1441 requires is reporting to and discussion by the Security Council of Iraq’s failures, but not an express further decision to authorize force.” See Lord Goldsmith, Legal Basis for Use of Force Against Iraq, 17 March 2003, statement by UK Attorney General at Parliament, available at: .
136. As with the possibility of a sunset provision, the notion that a Security Council authorization should only have force if its sitting members would continue to approve it is a textually achievable construct. No change in the law would be required, and practical concerns should drive that debate.
137. See Yoo, see note 127, see also Taft/ Buchwald, see note 120.
138. See Travalio/ Altenburg, see note 98.
139. Ibid., 118.
140. See Yoo, see note 127, 575.
141. The term “prevention” is most commonly used as a pejorative for evolving administration self-defense doctrines because it evokes a sense of the broadest possible authority (i.e., while “preemption” and “anticipatory” imply an extant threat, prevention may suggest that force can be used to undermine a mere ability). The terms are used interchangeably in this paper since the relevant concept is the legal authority regarding an “inherent right to self-defense.” That authority does not derive from any of the politically-charged terms at issue.
142. J. Acton, “Power corrupts; absolute power corrupts absolutely”, in: id./ G. Himmelfarb (eds), Essays on Freedom and Power, 1984, 357 et seq. (364).
143. A note regarding unilateralism is appropriate here. We should be clear on the relevant legal principle. Many who condemn the United States invasion into Iraq would differentiate it from Kosovo due to the “multilateral” nature of the Kosovo intervention. Ironically, at the time of this writing there are over 80 countries involved in Operation Iraqi Freedom at Central Command Headquarters and over 30 nations have put troops on the ground in Iraq—significantly more than participated in Operation Allied Force in Kosovo. Nevertheless, the point is irrelevant regardless of its veracity. The fact is that there is nothing in the U.N. Charter to suggest that “unilateral” interventions are illegal while multilateral ones are not. The Charter provides for one mechanism to authorize use of force. It is a very specific mechanism, and it would be a strange argument indeed to suggest that a general preference for collective action so favors multilateralism that the simple claim to multilateral support is sufficient to transform that which is a clear violation of the treaty into something authorized by it.
144. The National Security Strategy of the United States of America, September 2002, available at: .
145. J.L. Gaddis, Surprise, Security, and the American Experience, 2004, 94.
146. National Security Strategy 2002, see note 144, Part III: “We will disrupt and destroy terrorist organizations by: (...) defending the United States, the
147. American people, and our interests at home and abroad by identifying and destroying the threat before it reaches our borders. (...) we will not hesitate to act alone (...) to exercise our right of self-defense by acting preemptively against terrorists, to prevent them from doing harm against our people and our country. (...).” See also M. Donnelly, “Hitting Back? The United States’ Policy of PreEmptive Self-Defense Could Rewrite the Rules of Military Engagement,” 28 August 2002, ABC News Online, available at: . At a West Point graduation ceremony in June 2002 Bush stated: “The war on terror will not be won on the defensive. We will take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge.”
148. The Caroline (exchange of diplomatic notes between the United Kingdom and the United States, 1842), J.B. Moore, A Digest of International Law, 1906, 2.Sect., 409, 412.
149. National Security Strategy 2002, see note 144, 5, 13, Chapter III is entitled “Strengthen Alliances to Defeat Global Terrorism and Work to Prevent Attacks Against Us and Our Friends,” Chapter V is entitled, “Prevent our
150. Enemies from Threatening Us, Our Allies, and Our Friends with Weapons of Mass Destruction.”
151. Kenneth Roth, Executive Director of Human Rights Watch, for example, suggests that use of the term as it applies to terrorism should only be metaphoric—as a hortatory device. See K. Roth, “The Law of War in the War on Terror”, Foreign Aff. 83 (2004), 2 et seq.
152. National Security Strategy 2002, see note 144, 15.
153. Ibid.
154. See generally J. Quigley, Politics, Law, and Society: Palestine and Israel: A Challenge to Justice, 1990; N. Boustany/ P.E. Tyler, “Iraq Masses Troops at Kuwait Border, U.S. Puts Gulf Warships on Alert as Tensions Rise Over Oil Quotas,” Washington Post, 24 July 1990, A1.
155. The Oxford Dictionary and Thesaurus, 1996, 734. See also Yoo, see note 127, 572 “(...) the concept of imminence must encompass an analysis that goes beyond the temporal proximity of a threat to include the probability that the threat will occur.”
156. See generally, Bothe, see note 59.
157. ICC Statute, see note 116.
158. C.S. Sharnetzka, “The Oslo Land Mine Treaty and an Analysis of the United States Decision Not to Sign”, Dick. J. Int’l L. 16 (1998), 661 et seq. (673-676). On 17 September 1997, after a two week long conference in Oslo, Norway, almost one hundred nations agreed on a Treaty to ban the use of anti-personnel land mines. This Treaty was the result of an eleven-month long process, initiated in Canada, which became known as the Ottawa Process and was the first international agreement to totally ban the use of anti-personnel mines. The United States sought major adjustments to the treaty including the ability to use anti-personnel land mines deployed along the Demilitarized Zone in Korea and the ability to use “smart” self-destructing anti-personnel land mines as components in mixed anti-tank munition packages. The United States’ proposals were rejected in Oslo and President Clinton decided not to sign the treaty.
159. See note 115.
160. See note 117.
161. Gaddis, see note 145, 99-100.
162. National Security Strategy 2002, see note 144, Part III, 5.
163. Ibid.
164. J.B. Moore, see note 147, 412; H. McCoubrey/ N.D. White, International Law and Armed Conflict, 1992, 91-96; O. Schachter, International Law in Theory and Practice, 2nd edition, 1991, 150-152.
165. National Security Strategy 2002, see note 144, 15.
166. See Letter from Daniel Webster, US Secretary of State, to Henry Fox, British Minister in Washington, 24 April 1841, in: British and Foreign State Papers 1840-1841, 29 (1857), 1138. See also “International Military Tribunal (Nuremberg), Judgment and Sentences”, AJIL 41 (1947), 172 et seq. (205): “preventive action in foreign territory is justified only in case of ‘an instant and overwhelming necessity for self- defense, leaving no choice of means, and no moment for deliberation’”, quoting the Caroline Case; see also D.W. Bowett, Self-Defence in International Law, 1958, 142-143.
167. See Letter from Lord Ashburton to Daniel Webster, US Secretary of State, 28 July 1842, British and Foreign State Papers 1841-1842, 30 (1858), also available at: .
168. See, e.g., Yoo, see note 127, 574, noting that the definition of “imminent” has become more nuanced due to the advent of weapons of mass destruction and claiming that the term now must subsume a number of factors: “probability of an attack; the likelihood that this probability will increase, and therefore the need to take advantage of a limited window of opportunity; whether diplomatic alternatives are practical; and the magnitude of the harm that could result from the threat.”
169. See, e.g., M. Casey, “U.N. Chief Says Mass Graves in Iraq Show Atrocities Committed by Saddam’s Regime”, Associated Press Worldstream, 22 August 2003.
170. See J. E. Stromseth, “Rethinking Humanitarian Intervention: The Case for Incremental Change, in Humanitarian Intervention: Ethical, Legal, and Political Dilemmas”, in: J.L. Holzgrefe/ R.O. Keohane (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas, 2003, 234.
171. Simma, see note 24: “Under the U.N. Charter, forcible humanitarian intervention can no longer, therefore, be considered lawful.”
172. U.N. Charter preamble reciting humanitarian purposes of Charter.
173. See H.H. Perritt, “Kosovo: Internal Conflict, International Law”, Chicago Daily Law Bulletin, 24 July 1998; G. Dinmore, “New Kosovo Massacre May Spur NATO to Act”, Washington Post, 30 September 1998, A1, asserting that the massive refugee flows from Kosovo into the neighboring countries of Albania and Macedonia arguably posed a “threat to international peace and security” and did so long before NATO’s bombing campaign.
174. See Prime Minister Tony Blair, Address at the Chicago Economic Club (24 April 1999). See also T. Blair, “A Military Alliance”, N.Y. Times, 24 April 1999, A19; T. Blair, “A New Moral Crusade”, Newsweek, 14 June 1999, 35: “We are succeeding in Kosovo because this was a moral cause (...).”
175. The speech does not actually use the term “just war.” But see C. Abbott/ J. Sloboda, The “Blair Doctrine” and After: Five Years of Humanitarian Intervention, 22 April 2004, available at: , characterizing the Blair speech as introducing a “just war” doctrine.
176. See note 172.
177. J.D. Levitte, “France, Germany and the U.S.: Putting the Pieces Back Together”, Address at the Council on Foreign Relations, 25 March 2003, 14, available at: .
178. See S. Tharoor, “Relief After Dispair,” The Hindu, 13 April 2003, asserting that the UN may yet play a humanitarian role in Iraq, stating “four years ago, another military conflict not sanctioned by the U.N. resulted in a Security Council resolution that asked the U.N. to legitimate the post-war dispensation in Kosovo and to run the civil administration there.” S. Tharoor, “Why America Still Needs the United Nations”, Foreign Aff. 82 (2003), 1 et seq. Arguing for the importance of legitimacy as well as legality.
179. Oxford Dictionary, see note 153, 856.
180. Gaddis, see note 145, 78-83.
181. See, e.g., Abbott/ Sloboda, see note 173, arguing that current circumstances urgently beg for a “universally acceptable humanitarian doctrine” for intervention.
182. See Blair Speech to Chicago Club, see note 172. The five factors are: 1.) certainty of facts; 2.) exhaustion of diplomatic options; 3.) availability of military options; 4.) preparedness for long-term commitment; and 5.) involvement of national interests. He also identified four precautionary measures involving having right intentions, intervention being a last resort, using proportional means, and having reasonable prospects for success.
183. Simma, see note 24, 123-124. Indeed, United Nations Secretary-General Kofi Annan asked the international community to try to develop a consensus on how to approach emerging humanitarian intervention issues in speeches to the UN General Assembly in 1999 and 2000. In September 2002, Canada responded and established the International Commission on Intervention and State Sovereignty (ICISS). The ICISS concluded that the UN Security Council was the appropriate body for humanitarian intervention authorizations and that the international community should work to improve the performance of that body. See Abbott/ Sloboda, see note 173.
184. But see Blair Press Briefing, 5 March 2004, available at: . In this speech, Prime Minister Tony Blair linked the responsibility of humanitarian intervention to the war on terrorism and the proliferation of weapons of mass destruction, stating “[c]ontainment will not work. (...) The terrorists have no intention of being contained. Emphatically I am not saying that every situation leads to military action. But we surely have a right to prevent the threat materialising; and we surely have a responsibility to act when a nation’s people are subjected to a regime such as Saddam’s.”
185. Person to Person (CBS television broadcast, Sept. 20, 1957).
186. See M. Rosenblum, “UN General Warns of Lessons not Learned from Rwandan Genocide,” San Mateo County Times, 27 March 2004; R. Holbrooke, “How Did ‘Never Again’ Become Just Words?”, Washington Post, 4 April 2004, B2.
187. Simma, see note 24: “Under the U.N. Charter, forcible humanitarian intervention can no longer, therefore, be considered lawful.” Unlike self-defense, the San Francisco drafters were not so prescient regarding humanitarian intervention. Some have suggested, reflecting on US Justice Holmes’ claim that the Constitution is not a “suicide pact,” that humanitarian crises this grave simply require a departure from the words of our international community’s constitutive document—perhaps a jus cogens norm trumps the Charter’s requirements. Others have suggested a listing of factors to justify international humanitarian intervention, and still others an emerging U.N. Charter “common law” in which the absence of a condemning Security Council resolution ex post facto satisfies the requirement of an ex ante resolution, but only in the instance of a humanitarian intervention. Some would claim the existence of a threat to international peace and security as a generally sanctioned justification for the use of force. Many, in the absence of a good legal argument take solace in the “legitimate” characterization even if it is coupled with the adjective “illegal.” See Tharoor, see note 176.
188. Ibid.
189. National Security Strategy 2002, see note 144, 15.
190. Article 2 (4) U.N. Charter.
191. See discussion of the formation of the U.N. Charter, see note 3. See also D.W. Bowett, The Law of International Institutions, 4th edition, 1982, 28-33. Article 23 (1) U.N. Charter: “The Security Council shall consist of fifteen Members of the United Nations. The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council. The General Assembly shall elect ten other Members of the United Nations to be non-permanent members of the Security Council, due regard being specially paid, in the first instance, to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization and also to equitable geographical distribution.”; Article 23 (2) U.N. Charter: “The non-permanent members of the Security Council shall be elected for a term of two years. (...) A retiring member shall not be eligible for immediate re-election.”; Article 23 (3) U.N. Charter: “Each member of the Security Council shall have one representative.”; Article 27 (1) U.N. Charter: “Each member of the Security Council shall have one vote.” Article 27 (3) U.N. Charter: “Decisions of the Security Council (...) shall be made by an affirmative vote of nine members including the concurring votes of the permanent members (...).”
192. Article 9 U.N. Charter: “1. The General Assembly shall consist of all of the Members of the United Nations ...”; Article 18 (1) U.N. Charter: “Each member of the General Assembly shall have one vote.”
193. The most popular initiative outside the United States is to expand the Security Council’s membership and concomitantly to reduce the influence of individual members—particularly the permanent five members.
194. R. Kagan, “A Tougher War for the U.S. is One of Legitimacy”, N. Y. Times, 24 January 2004.
195. Ibid.
196. See J. Rubenfeld, “The Two World Orders”, Wilson Quarterly, Autumn 2003, contrasting European perceptions that World War II exemplified the horrors of popular nationalism, while for the Americans, winning the war represented a victory for nationalism.
197. Ibid.
198. Ibid.
199. See R. Kagan, “Power and Weakness”, Policy Review Online, No. 113, June-July 2002.
200. O.W. Holmes, “Lecture 1—Early Forms of Liability”, in: id., The Common Law, 1949.
201. K. von Clausewitz, On War, edited and translated by M. Howard/ P. Paret, 1976, 120. Clausewitz described the fog of war as the realm of uncertainty that is inherent in any conflict.
202. See W.M. Reisman, “In Defense of World Public Order”, AJIL 95 (2001), 833 et seq., distinguishing the 9/11 attacks from other terrorist acts, and noting the profound implications of the altered character.
203. P. Bradley (ed.), Alexis de Tocqueville, Democracy in America, Vol. I, 1945. “Scarceley any political question arises in the United States that is not resolved, sooner or later, into a judicial question”, ibid., 280.