The Law of Force

Despite the monstrosity of the terrorist attacks, and despite the many
suggestions by U.S. officials to the contrary, the U.S. is legally constrained
in its use of international force by international law. 

The following article considers the legal case of the U.S.'s proposed or
threatened use of force in response to the attacks. It discusses the U.S.
obligation under the UN Charter, particularly Articles 2(3) and 33, as well as
the permissible cases of the use of force, as expressed by Articles 2(4) and
51.

It may be found on the Web at

	http://monkeyfist.com/articles/786
	
Best,
Kendall Clark, Editor
Monkeyfist.com




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." -- Senator 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.'" -- Senator John McCain

The U.S. [1]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 or consider whether it should have been passed at all.

The 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 organizations 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 neglects 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
offers neither a definite meaning of, nor limit upon, "international
terrorism" or "future acts".

Law and the International Use of Force

But an authorization by the U.S. Congress to use force internationally has a
limited legal scope. To use international force legally, Washington must
further obtain a United Nations Security Council resolution, which it should
expect only after satisfying the relevant conditions. One such 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 [2]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. (UN Charter, Article 2(3))

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 (UN Charter,
Article 33; emphasis added).

Washington must, therefore, as a matter of law, attempt to resolve the
dispute (with Afghanistan or 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 claims against
bin Laden or al Qaeda, Washington has no legitimate self-defense claims. The
issue of harboring countries could be brought before the [3] International
Court of Justice, for example, if purely 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 [4]Court docket is full of relevant, similar cases.

Washington's obligation under Articles 2(3) and 33 must be understood in
light of the various kinds of entity involved in this dispute, which include
not only states, the U.S. and Afghanistan being the two chief states
involved so far, but also private organizations, groups, and individuals.
The UN Charter creates an international security regime between and among
its member states. The relation of a state, such as the U.S., and a
terrorist organization, such as al Qaeda, is just the relation between a
state and a non-governmental organization 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 and 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 [5] incautious dismissal of the valid distinction between al
Qaeda, states that may aid or harbor it, and states within which some of its
members may reside.

That incautious position, no matter how often or strongly it's asserted,
cannot erase Washington's obligations under law. Nor can it blur the
distinction between obligations a state owes to other states, expressed by
UN Charter and international law, and the obligations a state owes to
persons or organizations suspected of committing crimes against it, which
are expressed in various places, including the [6]Universal Declaration of
Human Rights. Not owing Article 2(3) and 33 obligations to bin Laden and al
Qaeda does nothing to erase legal obligations the U.S. owes to Afghanistan.
Washington is not obligated to resolve its dispute with bin Laden or al
Qaeda according to Articles 2(3) and 33; they are not states. It owes bin
Laden and al Qaeda precisely what it owes any criminal organization not
presently residing within its territory, which ordinarily means it must seek
to extradite bin Laden to stand trial for his crimes in the U.S.

But extradition is not necessarily 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 incriminating its evidence
may be -- to extradite bin Laden. Suppose that Chile threatened to bomb
Washington and New York City unless and until the U.S. extradited Henry
Kissinger, and suppose, contrary to the facts, that there were no treaty of
extradition between Chile and the U.S. Chile's demand, while clearly
unlawful and absurd, is a better case of "harboring" than the case of bin
Laden in Afghanistan. To refuse extradition is an abuse of Afghanistan's
state power -- perhaps, however, an understandable abuse, given Washington's
1998 illegal cruise missile attack against Afghanistan, euphemistically
called Operation Infininite Reach -- but it cannot, without explicit
authorization from the Security Council, warrant the lawful use of U.S.
force against Afghanistan. And this is the case whether that force is
intended to compel Afghanistan to extradite bin Laden, or whether it is
intended to punish Afghanistan for not having done so already, or for any
other reason. Failure to extradite constitutes neither an armed attack, nor
an immininent threat of 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, no more or less than every other
state, is legally constrained by Articles 2(4) and 51 of the UN Charter,
which together form a comprehensive legal limit upon the use of
international force. And the constraints formed by the UN Charter are
neither more nor less compelling than the constraints upon force formed by
the U.S. War Powers Act (1973) or the U.S. Constitution. As Rosalyn Higgins
says, 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.

So, 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 U.S. 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.

That the U.S. 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 [7] 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 protect citizens abroad by force,
can it justify the uses of force it's 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. If there is any self-defense justification
whatever to these promised uses of force against, for example, Afghanistan,
Washington must make the case that they are in response to the imminent
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 Washington has most often made
publicly since 12 September is actually a version of nineteenth century
arguments about vital 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 it's not offering an anticipatory self-defense or vital interests
justification, Washington offers a kind of indistinct right of armed
reprisal. 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 too.

In general, reprisals are a class of actions that are 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 often are legally permissible. Included in the
general class of reprisal are armed or forceful reprisals, which have a
different legal standing than non-force reprisals. Reprisals that use force,
or armed reprisals, which surely must be seen to include Washington'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,
no matter the legality or illegality of the acts to which they are meant as
response.

Armed reprisals could be lawful only if the right of self-defense generally
included the right of armed reprisal. It does not. Peter Malanczuk, in
Modern Introduction to International Law, says that the right of
self-defense "does not include a right of armed reprisal; if terrorists
enter one state from another, the first state may use force to arrest or
expel the terrorists, but, having done so, it is not entitled to retaliate
by attacking the other state".

The Force of Law

Washington's courses of lawfully permissible international action are clear.
It may treat bin Laden, al Qaeda, and any other non-governmental
organization involved in terrorist attacks as suspects in acts of
international crime, and it may pursue them accordingly, within the bounds
of international law. It must attempt to resolve peacefully a dispute with
any state that may have harbored or aided the commission of such criminal
acts, including pursuing a case against any such state at the International
Court of Justice or by other peaceful means. It may use international force
only after obtaining explicit authorization by the UN Security Council to do
so, or, in the case of actual future or imminent armed attacks upon the
U.S., it may use force to defend its 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 reasonably be
thought to be merely overwrought, stressful reactions, except that they
conform to the pattern of Washington's rejectionist stance. Law only has the
force that it does because the parties to it, in this case, sovereign
states, agree to bind themselves to it and, in so doing, to all other states
which thus voluntarily enter into lawful, mutual relation. Even the U.S., as
much Empire as state, may bind and, thus, obligate itself to (the force of)
law. The U.S. did so freely when it, in large part, created the UN, its
Charter, the Universal Declaration of Human Rights, and the entire post-WWII
international security regime. While [8] less frantic heads may now be
prevailing, it remains to be seen whether Washington will acknowledge the
bounds of international law and accept the law of force or whether the
familiar rejectionist pattern will be reasserted.

 References:
   1. http://monkeyfist.com/articles/779
   2. 
http://www.un.org/aboutun/charter/
   3.  http://www.icj-cij.org/
   4. 
http://www.icj-cij.org/icjwww/idocket.htm
   5. http://dailynews.yahoo.com/h/nm/20010926/pl/attack_usa_powell_dc_1.html
   6. http://www.udhr.org/
   7. 
http://news.lycos.com/news/forms/printstory.asp?section=Breaking&storyId=243528&topic=national+emergencies+act
   8. 
http://dailynews.yahoo.com/h/newsday/20010927/lo/powell_assailed_over_soft_approach_1.html



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