The Law of Force

What are the bounds of the international legal framework within which the United States may legally respond to terror?



The Law of Force
By Kendall Clark

"I say, bomb the hell out of them. If there's collateral damage, so be it.
They certainly found our civilians to be expendable" -- Sen. Zell Miller.

"We will not do it in such a way that if the United States feels a need to
act alone by itself, we will not be constrained by the fact that we're
working with others as well" Secretary of State Powell.

"I say to our enemies, 'We are coming. God may show you mercy. We will not'"
-- Sen. John McCain.

Congressional Authorization of Force

The Congress has authorized President Bush to use force to respond to the
terrorist attacks of 11 September. The bill of authorization was introduced
and passed into law before all but a very few Americans were able to read
it, and before even fewer Americans were able to consider carefully whether
it should have been passed at all. The Congressional resolution is very
broad, authorizing the President to "determine" the "nations, organizations,
or persons" which "planned, authorized, committed, or aided" the terrorist
attacks "or harbored such organizatiosn or persons". The President alone may
determine the targets of U.S. military force. He is authorized to use force
against any entity that "harbored" the terrorists, although the resolution
fails to explain what "harbor" means. The President is authorized to use
force "in order to prevent any future acts of international terrorism
against the United States". And the resolution, again, offers neither a
definite meaning of nor limit upon "international terrorism" or "future
acts".

The International Use of Force

Where does the U.S. stand legally? To international use force legally,
Washington must obtain a United Nations Security Council resolution, which
it should expect to obtain successfully only after meeting the relevant
conditions. One condition is to attempt a peaceful resolution to the
dispute. Before it can use force against Afghanistan, even if the Taliban is
actively shielding bin Laden, Washington must comply with Articles 2(3) and
33 of the UN Charter:

All Members shall settle their international disputes by peaceful means in
such a manner that international peace and security, and justice, are not
endangered.

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 (emphasis added).

Washington must, therefore, as a matter of law, attempt to resolve the
dispute (with Afghanistan or with other States) peacefully, without
resorting to force. That obligation applies equally to the so-called
"harboring countries", ones against which, whatever the nature of its
dispute with bin Laden or al Qaeda, Washington has no legitimate
self-defense claims. The issue of so-called harboring countries could be
brought before [1]International Court of Justice, for example, if diplomatic
efforts to resolve the dispute are unsuccessful. If Washington has
sufficient evidence, it should seek a formal bill of indictment against any
States that aided the terrorist attacks. The ICJ's [2]Court docket is full
of relevant and similar cases. Washington's obligation under Articles 2(3)
and Article 33 must be understood in light of the fact that the present
international dispute is mixed: some parties to the dispute are States, and
members of the UN, other parties are likely private organizations and
groups. The UN Charter creates an international security regime between and
among its Members, between and among States. The relation of a State, such
as the U.S., and a terrorist organization, such as bin Laden's, is more
properly understood as the relation between a State and persons suspected of
international crime. Washington owes obligations of one kind to Afghanistan,
Pakistan, and other States; it owes obligations of a different kind to al
Qaeda, to bin Laden himself. Some of these obligations overlap, others do
not. This perfectly ordinary feature of international law is presently
unclear because of Washington's of disdaining the valid and lawful
distinction between bin Laden's organization and States that "aided" or
"harbored" bin Laden. That position, no matter how often or strongly it's
asserted, cannot overturn Washington's obligations under the UN Charter. Nor
can it blur the distinction between obligations that a State owes to other
States -- expressed by the UN Charter and international law -- and the
obligations a State owes to persons suspect of committing crimes against it
-- expressed in various places, one of which is the Universal Declaration of
Human Rights. Washington is not obligated to resolve its dispute with bin
Laden or al Qaeda according to Articles 2(3) and 33; rather, it owes the
same obligations to bin Laden as it owes to any criminal not presently
residing within reach of its sovereignty. The ordinary procedure in cases
like this is to extradite bin Laden to stand trial for his crimes. But
extradition is not, according to international law, obligatory in the
absence of an explicit treaty or agreement. The U.S. may not legally use
force to compel Afghanistan -- nor any other State, no matter how just its
cause against bin Laden may be -- to extradite bin Laden. To refuse
extradition is an abuse of Afghanistan's State power -- though, perhaps an
understandable abuse, given Washington's illegal cruise missile attack
against Afghanistan -- but it cannot, without explicit authorization from
the Security Council, warrant lawful use of force by the U.S. Failure to
extradite does not constitute an armed attack against the U.S..

The Limits of Self-defense

Assuming that peaceful means fail, Washington must seek UN authorization for
the use of international force. Washington is legally constrained by
Articles 2(4) and 51 of the UN Charter, which together constitute a
comprehensive legal limit the use of international force, no less so than by
its own War Powers Act (1973) or Constitution. As Rosalyn Higgins has said,
in her Problems and Process: International Law and How We Use It, the "UN
Charter is intended to provide for a watertight scheme for the contemporary
reality on the use of force. Article 2(4) explains what is prohibited,
Article 51 what is permitted." Article 2(4) of the UN Charter says that

All Members 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.

Thus, without explicit authorization from the UN, the United States may
neither legally threaten to use force nor use it. The only exception granted
by the UN Charter occurs in Article 51:

Nothing in the present Charter shall impair the inherent right of individual
or collective self-defence 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-defence 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.

Had it been able to repel the 11 September attacks directly by using force,
the United States would have been within its "inherent right" to do so as
expressed in Article 51. Washington could legally have ordered the
interception and destruction of an inbound international airliner in neutral
airspace if, in so doing, it was defending the U.S. against an armed attack.
If Washington were able to make a legitimate self-defense case for the
attacks which it's promising, it's safe to assume we'd be hearing such a
case put in precisely those terms. But that's not what we've been hearing at
all. That the United States may now legally use force internationally, as
Washington has threated repeatedly to do, under the rubric of self-defense
is not self-evident. The Congressional resolution seems to offer a
self-defense justification when it says that "such acts render it both
necessary and appropriate that the United States exercise its rights to
self-defense and to protect United States citizens both at home and abroad".
Further the President's [3] National Emergency Proclamation claims as one of
its grounds "the continuing and immediate threat of further attacks on the
United States".

Anticipatory Self-defense?

Setting aside the, for Washington, inconvenient fact that there is no
generally recognized self-defense right to use force to protect citizens
abroad, can it justify the uses of force its promised as self-defensive? The
kinds of use of force Bush has been promising are clearly not purely
self-defensive in nature; they are likely to occur in other countries,
neither in direct response to an armed attack, nor with the intention of
repelling such an attack. Instead, if there is any self-defense
justification whatever to these promised uses of force against, for example,
Afghanistan, Washington must make the case, rather than simply asserting it,
that they are in response to the immediate threat of an armed attack. In
international law there is a contested and limited right of anticipatory
self-defense, that is, using force against the threat of an imminent, armed
attack, before it has actually occurred. The classic expression of the that
right comes from Daniel Webster's diplomatic notes to Britian in the
Caroline case. In order for an anticipatory use of force to be legitimate
self-defense, there must, Webster wrote, be a "necessity of self-defense,
instant, overwhelming, leaving no choice of means, and no moment for
deliberation"; the force used must not be "unreasonable or excessive"; it
must be "limited by that necessity and kept clearly within it". The case for
anticipatory self-defense which the U.S. and the Bush Administration has
most often made publicly since 12 September is actually a version of 19th
century arguments about national interest. Recall that Bush said as early as
his election campaign that he would use force internationally when vital
U.S. interests were threatened. But that view, which claims the right to use
force without an actual attack or the imminent threat of one, is generally
discredited among international law experts. The entire UN security
apparatus was created in order to forestall just such unilateral action.
When its not offering an anticipatory self-defense or vital interests
justification, Washington offers a kind of indefinite plan of armed
reprisals. For example, no other legal category but armed reprisal fits
Bush's promise that "Our war on terror begins with al Qaeda, but it does not
end there. It will not end until every terrorist group of global reach has
been found, stopped and defeated." Likewise consider Bush's claim that "our
response involves far more than instant retaliation and isolated strikes."
That is, our response includes retaliatory strikes, i.e., armed reprisals,
but it will include other things as well. Under international law, a
reprisal is an act that would be illegal except as a response to a prior
illegal act. For example, economic sanctions are generally illegal, but when
they are undertaken as a reprisal, as a response to a prior illegal act,
they may be legally permissible. However, reprisals that use force, or armed
reprisals, which includes Bush's "war on terror" which "will not end until
every terrorist group of global reach has been found, stopped and defeated"
are illegal under international law. The right of self-defense does not
include the right of armed reprisal.

Conclusion

The legally permissible courses of action for Washington are clear. First,
treat bin Laden, al Qaeda, and any other non-governmental organization
involved in terrorist attacks as international criminals, and pursue them
accordingly, within the bounds of international law. Second, resolve
peacefully any dispute with any State that may have harbored or aided such
terrorist organizations, including pursuing a case against any such State at
the International Court of Justice. Finally, use international force only
upon obtaining explicit authorization by the UN Security Council to do so;
or, in the case of actual future or direly imminent armed attacks, in
self-defense to defend U.S. territory and citizenry. In the immediate
aftermath of the 11 September attacks, many current and former high-ranking
officials expressed what can only be called disdain for the bounds of
international law. Such expressions might be reasonably thought merely the
overwrought, stressful reactions, except that they seem to be part of the
pattern of Washington's rejectionist stance. While calmer heads may now be
prevailing, it remains to be seen in the weeks and months to come whether
Washington has seen fit to accept the bounds of international law or whether
the old rejectionist pattern will be
 References:
   1. http://www.icj-cij.org/
   2. http://www.icj-cij.org/icjwww/idocket.htm
   3. 
http://news.lycos.com/news/forms/printstory.asp?section=Breaking&storyId=243528&topic=national+emergencies+act



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Posted on Monkeyfist at http://monkeyfist.com/articles/786