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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 12 April 2015
Reappraising the Resort to Force?
Jus ad Bellum
and the War on Terror
LINDSAY MOIRE
INTRODUCTION
Many commentators claim that the military response to the terrorist attacks launched on 11 September 2001, encompassing action against Afghanistan and Iraq, and commonly referred to as the 'war on terror', has significantly impacted upon the international law regulating resort to armed force (jus ad bellum). Some even suggest that the operations in Afghanistan and, more especially, Iraq could herald a sea-change in terms of when states may — or will —use force, risking the very future of the UN system as we know it.' A detailed examination of the impact of these operations on the future of the UN and Security Council is beyond the scope of this article. Instead, the legality of the military action taken against Afghanistan in 2001 and Iraq in 2003 will be assessed in the context of the existing legal framework, the justifications advanced and the reaction of the international community. In light of the conclusions reached, the article can then address the question of whether the right to use force in international law is truly undergoing a radical transformation.
Professor Lindsay Moir, McCoubrey Centre for International Law, Law School, University of Hull, UK
See, for example, Richard A. Falk, 'What Future for the UN Charter System of War Prevention?' 97 American Journal of International Law (2003) 590; Thomas M. Franck, 'What Happens Now? The United Nations After Iraq' 97 American Journal of International Law (2003) 607; Tom J. Farer. 'The Prospect for International Law and Order in the Wake of Iraq' 97 American Journal of International Law (2003) 621; and Jane E. Stromseth, `Law and Force After Iraq: A Transitional Moment' 97 American Journal of International Law (2003) 628.
MILITARY ACTION AGAINST AFGHANISTAN
On 7 October 2001, the US and UK launched Operation Enduring Freedom, a series of military attacks on Taliban and Al-Qaeda targets in Afghanistan.2 Despite suggestions that several alternative legal justifications could have been advanced for the strikes,' both states relied exclusively on the right of self-defence.' The validity of this claim depends firstly on whether the terrorist attacks of 11 September could be characterised as an armed attack for the purposes of Article 51 of the UN Charter. Article 51, however, does not entirely codify the international law of self-defence. In order to be lawful, any such action must also satisfy the requirements imposed by customary international law — i.e., the use of force must also be necessary and proportionate in the circumstances.'
Was there an Armed Attack?
Article 51 of the UN Charter permits individual or collective self-defence 'if an armed attack occurs against a Member of the United Nations'. Exactly what type of activity constitutes an armed attack is not, however, free from controversy.
2
For an exposition of the military response and events leading up to it, see Sean D. Murphy, 'Terrorist Attacks on World Trade Center and Pentagon' 96 American Journal of International Law (2002) 237.
4
For US justification, see the letter of 7 October 2001 addressed to the
President of the Security Council from the Permanent Representative
of the US to
the UN, UN Doc. S/2001/946 (7 October 2001). The UK chargé d'affaires
provided similar notification to the Security
Council on the same date, UN Doc.
S/2001/947.
5
Case Concerning Military and Paramilitary Activities in and Against Nicaragua
(Nicaragua v. United States of America), ICJ Reports (1986) 14, at
paragraph 176.
2005 Reappraising the Resort to Force 3
Christopher Greenwood, for example, accepts that the concept is 'generally used with reference to the use of regular armed forces by states', but counters that 'there is no a priori reason why the term should be so confined:6 Article 51 certainly does not limit self-defence to the situation where one state is attacked by another. Indeed, as Thomas Franck argues, 'the right is expressly accorded in response to "an armed attack" and not to any particular kind of attacker:7
Armed attacks can certainly be carried out by irregular troops.8 This was made explicit in the Nicaragua Case, where the International Court of Justice held that acts of armed bands or irregular forces can amount to an armed attack where the acts of armed force are 'of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces'.9 In order to arrive at this conclusion, the Court relied on the UN General Assembly's Definition of Aggression, which includes 'the sending by or on behalf of a state of armed bands, irregulars or mercenaries which carry out acts of armed force against another state of such gravity as to amount to the acts listed [earlier in the paragraph}'.'° Using this definition to determine the existence of an armed attack is not entirely free from difficulty, in that no precise conformity exists between the notions of armed attack and aggression. Nonetheless, Christine Gray points out that the Court's approach was probably justified in light of state practice, and the decision stopped short in any case of asserting that the two concepts were the same."
9 Nicaragua Case, paragraph 195.
I0 UNGA Resolution 3314
(XXIX), Definition of Aggression, 14
December 1974, Article 3(g).
Gray, Use of Force, 109.
More problematic is the degree of state involvement necessary for the actions of irregulars to qualify as an armed attack. The Definition of Aggression requires that irregular forces be sent 'by or on behalf of a state'. An ability to attribute responsibility for the attacks to a state is therefore necessary. The ICJ used a test of 'effective control' in Nicaragua, holding that mere assistance provided by a state in terms of weapons provision, or logistical or other support was insufficient to constitute an armed attack:2 The judgment has been criticised, however, with the International Criminal Tribunal for the Former Yugoslavia opting instead for an `overall control' standard, arguing that both judicial and state practice 'envisaged state responsibility in circumstances where a lower degree of control than that demanded by the Nicaragua test was exercised'.13 Clearly, an element of state control was still nonetheless required. That there was a close relationship between Al-Qaeda and the Taliban regime is beyond doubt. An element of complicity on the part of the Taliban, and so Afghanistan, also seems certain. Whether the Taliban exercised either effective or overall control over Al-Qaeda is less evident. The question of Taliban responsibility for the 11 September attacks, and consequent legitimacy of Afghanistan as a target, will be returned to below.
Several commentators do not, however, insist that state responsibility must exist in order for an armed attack to have occurred. Greenwood argues persuasively that the attacks on the World Trade Center and Pentagon clearly demonstrate the ability of terrorists — even if acting beyond the control or without the complicity of any state — to cause 'death and destruction on a scale comparable with that of regular military action by a state'. He believes that 'it would be a
12
Although the Court accepted that such assistance could be a threat or use of force, or unlawful intervention. See Nicaragua Case, paragraph 195. Judges Schwebel and Jennings took the opposite view.
2005 Reappraising the Resort to Foree 5
strange formalism which regarded the right to take military action against those who caused or threatened such consequences as dependent upon whether their acts could somehow be imputed to a state'," and illustrates the absence of such a requirement by reference to the Caroline:5 Commonly accepted as the locus classicus regarding self-defence in customary international law, that particular dispute arose out of the activities of Canadian rebels rather than the activities of state forces. At no stage, however, was it suggested by the parties to the dispute (the US and UK) that this factor had any impact on the legality of the armed response.'
In light of developments in the international order, and the growing importance of non-state actors, such an approach is certainly appealing. It would seem perfectly reasonable to argue that the question of whether or not an armed attack has occurred, in the sense of scale and consequences, should be distinguished from the question of state responsibility for that attack. Whether a state has been attacked, and who the state may legitimately respond against can therefore be treated separately Whether state practice currently supports this position is, however, doubtful.
Despite such difficulties, and before any determination had been made regarding responsibility for the attacks, the UN Security Council adopted Resolution 1368 on 12 September 2001:8 The Preamble explicitly recognised `the inherent right of individual or collective self-defence', from which it might
14 Greenwood, 'War Against Terrorism', 307.
16
Greenwood, 'War Against Terrorism', 308.
18 UN Doc. S/Res/1368 (2001), 12 September 2001.
reasonably be assumed that the Security Council considered the 11 September atrocities to constitute an armed attack, and that self-defence was indeed available.' Unfortunately, Resolution 1368 makes no explicit mention of an armed attack having occurred. Instead, paragraph 1 determined the attacks to represent 'a threat to international peace and security'. The same is true of Resolution 1373.2 Of course, this does not mean that they cannot also be an armed attack,' and the implication that the international community believed this to be the case seems clear.
Taking the above factors into account, it would seem untenable to insist that the events of 11 September 2001 did not, and — in international law — could not, amount to an armed attack upon the US. The consequence of such a determination is that the US (and any other state acting in a collective response — in this case the UK) had the right to respond forcibly through the legitimate exercise of self-defence. Be that as it may, some difficult questions regarding the use of force against Afghanistan remain.
19
See, for example, Greenwood, 'War Against Terrorism', 308, who argues that
the language used by the Security Council 'could only mean'
that the attacks
were eonsidered an armed attaek for the purposes of Article 51. See also Franck,
'Terrorism', 840.
20
UN Doc. S/Res/1373 (2001), 28 September 2001. See Antonio Cassese, 'Terrorism is Also Disrupting Some Crucial Legal Categories of International Law' 12 European Journal of International Law (2001) 993, at 996, where Resolution 1368 is
described as 'ambiguous and eontradictory'.
21
As Greenwood explains, War Against Terrorism', 307, the
invasion of Kuwait by Iraq in 1990 was treated by the Security Council as a
threat to/breach of international peace and security.
At the same time, however,
the right of Kuwait and its allies to act in self-defence was reaffirmed,
clearly demonstrating that the
invasion was an armed
attack.
2005 Reappraising the Resort to Force 7
Was the Response
Necessary? Was the Attack Over?
The terrorist attacks occurred on 11 September 2001. The response did not take place until 7 October 2001, twenty-six days later. As Antonio Cassese explains, 'traditional or "classic" self-defence must be an immediate reaction to aggression; if the victim state allows time to elapse, self-defence must be replaced by action under the authority of the UN Security Council. Nor can the victim state resort to armed reprisals, which ... are held to be contrary to international law.' Does this delay cast doubt over the legitimacy of the US response as self-defence?
If considered a response to an isolated armed attack which was over, the military action against Al-Qaeda and Afghanistan certainly looks like an armed reprisal. 23 As such, it would be contrary to international law.24 In order to qualify as a lawful exercise of self-defence, the use of force must be protective rather than punitive, i.e., necessary to repel an ongoing or imminent armed attack, rather than to retaliate for a previous attack. In practice, this is often an extremely
24
See UNGA Resolution 2625 and Advisory Opinion on the Legality of the Threat
or Use of Nuclear Weapons, ICJ Reports (1996) 226, at
paragraph 46.
8 New
Zealand Yearbook of Jurisprudence Vol 8.1
difficult distinction to make. A number of states, including the US, have sought to rely on the 'accumulation of events' theory, whereby a consistent pattern of small-scale attacks is seen as amounting to a single — and ongoing — armed attack. This could justify a large-scale response, since proportionality is to be measured against the attack as a whole and the continuing threat, rather than individual incidents.'
Seen in the context of attacks on American embassies in Ethiopia and Kenya in 1998, and the USS Cole in 2000, it could be argued that the 11 September attacks were simply the latest terrorist acts in an ongoing armed attack against the US. In that case, it could be argued that the military response was legitimately designed to repel further, imminent, attacks. Rejection of the 'accumulation of events' theory would not, however, necessarily prove fatal. Even if the 11 September attacks are considered to be unrelated to previous terrorist attacks on US targets, it would not seem unreasonable to treat them as the initiation of a new armed attack. The fact that the events in question were limited to 11 September does not preclude the possibility, or likelihood, that other attacks would occur in due course — in other words, that the armed attack would continue. It is precisely this continuing threat of armed attack that the US was defending itself against. As John Negroponte, US Ambassador to the UN, explained in his communication of 7 October, 2001:
The attacks on 11 September 2001 and the ongoing threat to the United States and its nationals posed by the Al-Qa'ida organization have been made possible by the decision of the Taliban regime to allow the parts of Afghanistan that it controls to be used by this organization as a base of operation...
25 The relationship between armed reprisals and self-defence is
particularly difficult and complex. For further discussion see Gray, Use of
Force, 121-125, and 160-164; Christopher Greenwood, `International
Law and the
United States' Air Operation Against Libya' 89 West Virginia Law Review
(1987) 933.
2005 Reappraising the Resort to Foree 9
In response to these attacks, and in accordance with the inherent right of individual and collective self-defence, United States armed forces have initiated actions designed to prevent and deter further attacks on the United States.26
Likewise, the UK informed the Security Council that its armed forces had been deployed 'in exercise of the inherent right of individual and collective self-defence, recognized in Article 51, following the terrorist outrage of 11 September, to avert the continuing threat of attacks from the same source:" The use of force in self-defence against a continuing armed attack is in no way contrary to international law.
It is accepted by a significant number of scholars and states that states need not actually wait to be attacked in order to take defensive action. Self-defence is also available where an armed attack is imminent.' Whether an attack is imminent must be determined according to the intelligence available —a rather sensitive issue. The actions of states must, however, be judged against the information available to them at the time, rather than with the benefit of hindsight. The US and UK clearly believed that further attacks by Al-Qaeda were imminent and, as such, explicitly informed the Security Council that defensive action was being taken to prevent these from occurring. As Greenwood argues, 'an imminent threat of armed attack was undeniably in existence after 11 September and the military action taken by the United States and its allies is properly seen as a forward-looking measure to prevent that threat from materializing, rather than as a
26
UN Doc. S/20011946. Emphasis added.
27 UN Doc. S/20011947.
Emphasis added.
10 New Zealand Yearbook of Jurisprudence Vol 8.1
backward-looking act of retaliation for what had gone before:29 Taking military action to prevent an attack which, although imminent, has not actually occurred yet, undoubtedly makes an evaluation of its proportionality difficult.' It does not, however, render the use of force unlawful per se.
Was Afghanistan a Legitimate Target?
The September 11 attacks were perpetrated by Al-Qaeda, not by Afghanistan. The extent to which the military response against Afghanistan was lawful therefore depends upon the extent to which Afghanistan itself (or the controlling Taliban regime) was involved. The issue has already been raised with respect to the question of whether the atrocities represented an armed attack. It is the view of this author that they did. Does this mean that Afghanistan was legally responsible for the attacks, and that the use of force against Taliban targets was permissible?
Security Council Resolution 1368 certainly called for states to bring to justice not only the perpetrators of the terrorist acts, but also their sponsors, stressing 'that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable'.31 As Franck points out, there can be no doubt that the Taliban regime falls within such a designation.' Furthermore, the Taliban had clearly violated its obligations in international law by allowing Al-Qaeda to operate from within Afghanistan. The General Assembly's Declaration on Friendly Relations asserts in the context of the prohibition on the use of force that every state not only has the duty to `refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State', but also to
29 Greenwood, War Against Terrorism', 312.
30
See discussion of this issue below.
31 UN Doc. S/Res/1368 (2001), 12
September 2001, paragraph 3.
32 Franck, 'Terrorism',
841.
2005 Reappraising the Resort to Force 11
`refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts when the acts ... involve a threat or use of force:" This interpretation refers, however, to the use of force as prohibited by Article 2(4) of the UN Charter. The threat or use of force per se does not trigger the right of self-defence — only an armed attack does this, and there is no suggestion that the use of force and an armed attack are the same thing.' Afghanistan may well have violated several international obligations, but not all violations of international law by a state permit an armed response.
Afghanistan's responsibility for the September 11 attacks must accordingly be demonstrated. This is difficult, and depends upon the nature of the relationship between the Taliban and Al-Qaeda. It will be recalled that the ICJ held in Nicaragua that providing financial or logistical support and weapons violated international law, but did not trigger state responsibility for an armed attack.' Rather, an element of control on the part of the state was required. The extent of this control may, however, have become rather flexible. Cassese, for example, argues that:
the training, moving, lodging, and equipping of an insurgent or terrorist army, or simply giving sanctuary to rebels or terrorists ... should engage the State's responsibility for attacks by the rebel or terrorist troops. At the other end of the scale [assistance] may involve
33
UNGA Resolution 2625 (XXV), Declaration on Principles of International Law
Concerning Friendly Relations and Cooperation among States
in Accordance with
the Charter of the United Nations, 24 October 1970. For discussion see
Greenwood, 'War Against Terrorism', 313,
and Cassese, 'Terrorism', 997.
Afghanistan was also in breach of several explicit obligations imposed by the
Security Council in
the wake of attacks on American Embassies in 1998.
34
Bruno Simma (ed), The Charter of the United Nations: A
Commentary (2nd edition, Oxford, 2002), Volume I,
790-792.
35 Nicaragua Case, paragraph 195.
12 New Zealand
Yearbook of Jurisprudence Vol 8.1
merely permitting insurgents or terrorists to sleep in disused huts in remote border areas, acquiescence which should not of itself engage the State's responsibility for an armed attack.36
Gray admits that 'considerable uncertainty' continues to exist in this area.' Other scholars have argued that the relationship between the Taliban and Al-Qacda met the requirements of the Definition of Aggression in any case.' The UK certainly asserted that Al-Qaeda had been able to carry out the attacks only 'because of their close alliance with the Taleban regime, which allowed them to operate with impunity in pursuing their terrorist activity'." The action taken by the US and UK was therefore — at least explicitly — based on a higher level of support than Al-Qaeda simply being harboured by the Taliban.' Neither state, however, made the claim that Afghanistan was responsible for the attacks.' Taliban control
36
Antonio Cassese, International Law (2nd edition, Oxford, 2005),
471-472. He accepts that the area between these extreme positions is 'grey'. See
also Moir, Internal
Armed Conflict, 49-50.
37 Gray, Use of Force,
167.
38 Gray, ibid., refers to Byers, 'Terrorism After 11
September'.
41
Greenwood, War Against Terrorism', 312, accepts that it would have been difficult to produce evidence of state responsibility
over Al-Qaeda may not have been conclusively proved, but a degree of complicity in terms of their interdependence, and significant involvement in Al-Qaeda activities on the part of the Taliban, seemed clear. Some may doubt this, but the evidence presented by the US and UK was found entirely convincing by the vast majority of states."
Greenwood suggests that Afghanistan's position could, alternatively, be seen as 'analogous to that of a neutral state which allows a belligerent to mount military operations from its territory: even though it is not responsible for those operations, it exposes itself to the risk of lawful military action to put a stop to them:" Such lawful military action is, however, properly limited to those enemy troops operating from the neutral state, and not the infrastructure of the neutral state itself." In any event, it would appear that the relationship between Afghanistan and Al-Qaeda — despite falling short of responsibility — was considered sufficient to render the former a legitimate target for self-defence. Extensive international support for the operation certainly supports this contention.
sufficient to satisfy the Nicaragua criteria when military action was
initiated.
42
In addition to the Security Council, NATO, the EU, the OAS and a number of
individual states supported the action. Having received
evidence from the US,
NATO found it 'clear and compelling' that the attacks were directed from abroad,
and triggered the self-defence
provision of the Washington Treaty. See Statement
by NATO Secretary General, Lord Robertson,
<http://www.nato.int/ docu.speech/2001/s011002a.htm>
. Shaw states in 'Keep the Response Legal' that
'governments from the US to the UK and Pakistan, including scores of others
around
the globe' found the responsibility of Afghanistan to have been
'adequately demonstrated'. Cassese suggests that 'practically all
states' had
accepted the legitimacy of action in response to the attacks based on Article
51. See Cassese, International Law, 474.
43 Greenwood, `War
Against Terrorism', 313.
Was the Response Proportionate?
Not only must self-defence be necessary in the particular circumstances, it must also be proportionate. The pivotal question here is, 'proportionate to what?' It is certainly not the case that the military response had to be proportionate to the 11 September attacks in order to be lawful — this represents a fundamental, although surprisingly common, misunderstanding of the concept's Comparing the death and destruction caused by the terrorist attacks with that caused by the military response would be valuable in terms of assessing proportionality if the US/UK operation was seen as an armed reprisal rather than self-defence. International law does not permit armed reprisals, however, and the action was never characterised as such.
In contrast to reprisals, self-defence is forward-looking. Proportionality therefore relates not to the armed attack that has taken place, but rather to the continuing threat that the use of force is designed to counter. It will be recalled that Negroponte's communication to the Security Council on 7 October 2001, invoking Article 51, referred not only to the attacks of 11 September 2001, but also to 'the ongoing threat to the United States and its nationals'.' It is against this ongoing threat that proportionality must be measured. As Greenwood explains, 'That does not mean that past events are disregarded — the terrible loss of life on 11 September was all too clear an indication of the destructive power of the terrorists — but it is relevant as an aid to determining the
45
See, for example, Myjer & White, 'The Twin Towers Attack', 8, where the authors suggest that the issue of proportionality was problematic, asking, 'Does an attack against a small part of the United States, albeit one with devastating consequences for the people in the area hit, justify an armed response against a whole eountry, with the aim not only to root out the terrorists but to destroy and remove the effective, though unrecognized, government?'
scale of the future threat, not as its own yardstick for measuring proportionality:'
Of course, compared to an assessment of damage already suffered, it is difficult for states to demonstrate with precision the extent of any future threat, no matter how imminent. Nonetheless, it would seem reasonable to argue that, in light of the capacity of Al-Qaeda to inflict massive harm on the US, and given the apparent unwillingness of the Taliban government to take steps preventing future attacks, the most effective protection of American security would be gained by seeking to destroy the Al-Qaeda network in Afghanistan and to remove the Taliban regime. Measured according to this scale, the military action taken by the US and UK was not only necessary, but was also within the acceptable limits of proportionality. The use of force against Afghanistan in response to the terrorist attacks of 11 September was, accordingly, a valid and lawful exercise of the right to self-defence.
MILITARY ACTION AGAINST IRAQ
Amid extensive international disagreement, Operation Iraqi Freedom, aimed at the removal of Saddam Hussein and his Ba'athist regime, began on 20 March 2003. Led by the US and UK, but with participation by Australia and several other states, the legal basis for the action remains highly contentious.
Was the Action Taken in Self-defence?
It is impossible to bring Operation Iraqi Freedom within traditional notions of self-defence. In terms of a strict application of Article 51, no armed attack attributable to Iraq had taken place. Even the more expansive customary approach to self-defence, enunciated in the Caroline Case, requires an armed attack to be imminent. As Franck explains:
47 Greenwood, War Against Terrorism', 314.
... UN and International Atomie Energy Ageney inspectors were actively engaged in situ in an apparently unrestricted search for weapons of mass destruction (WMDs) undertaken with full authorization by the Seeurity Council. Whatever the inspectors did or did not learn about Iraqi WMDs, nothing in their reports lends any credibility to the claim of an imminent threat of armed aggression against anyone.48
Nonetheless, some commentators contend that anticipatory, or pre-emptive, self-defence was a legitimate justification for the action."
In September 2002, whilst action against Iraq was being contemplated, the US set out its National Security Strategy.' Part V provides that:
We must be prepared to stop rogue states and their terrorist clients before they are able to threaten or use weapons of mass destruction against the United States and our allies ...
... the United States can no longer solely rely on a reactive posture as we have done in the past. The inability to deter a potential attacker, the immediacy of today's threats, and the magnitude of potential harm that could be caused by our adversaries' choice of weapons, do not permit that option. We cannot let our enemies strike first.
51:1 The National
Security Strategy of the United States of America, http://www.whitehouse.
govinschiss.html.
2005 Reappraising the Resort to Force 17
... The greater the threat, the greater is the risk of inaction — and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively.
This assertion of a right to act pre-emptively caused `considerable consternation' .51 It would seem clearly to exceed the limits of international law which, to the extent that it permits anticipatory self-defence at all, does so only in those circumstances mentioned in the Caroline.'
US Officials strenuously denied that the 'Bush doctrine' was an innovation, arguing that Secretary of State Webster had made a famous defence of anticipatory action." As Richard Gardner outlines, however, such an interpretation of the Webster formula is 'patently misleading'. In fact, Webster strictly limited anticipatory self-defence, asserting that it was possible only where an attack was imminent.' The Strategy accepts in Part V that:
For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that represent an imminent danger of attaek. Legal scholars and international jurists often conditioned the legitimacy of pre-emption on the existence of an imminent threat — most often a visible mobilization of armies, navies, and air forces preparing to attack.
54 Ibid., 587.
18 New Zealand
Yearbook of Jurisprudence Vol 8.1
It goes on, however, to argue that, 'We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries: John Yoo has asserted that imminence should no longer be limited to temporal scope, but should also include:
... the 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 harm that could result from the threat.55
Applying this 'reformulated test', he concludes that the action against Iraq was lawful."
Criticism of the Bush doctrine has, however, been both widespread and fierce. Numerous commentators assert that the right of self-defence claimed is too extensive.' In addition, Part III of the Strategy provides that:
While the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively against such terrorists, to prevent them from doing harm against our people and our country ...
Franck sees this provision as being even more fundamental than Part V, conflating the extensive right of pre-emptive self-defence with the assertion that the US itself can determine whether, and when, the right is to be exercised." The US would thus be 'free to use force against any foe it
55
Yoo, 'War in Iraq', 574.
57
See, for example, Gardner, 'Neither Bush'; Falk, 'War Prevention'; Franck,
'What Happens Now?'; Shapiro, 'Shifting Sands'; Jutta Brunnee
& Stephen J.
Toope, 'The Use of Force: International Law and Iraq' 53 International and
Comparative Law Quarterly (2004) 785.
58 Franck, 'What Happens
Now?', 619.
2005 Reappraising the Resort to Force 19
perceives as a potential threat to its security, at any time of its choosing and with any means at its disposal',' effectively rejecting any international legal regulation of its resort to force. As Gardner warns, 'if [this] is intended to assert a right available to the United States alone, [it] is obviously unacceptable. If it is intended to assert a new legal principle of general application, its implications are so ominous as to justify universal condemnation:' It is, however, difficult to see how the doctrine could represent a legal principle — with no external criteria, 'what may superficially seem to be a legal norm ... is actually no norm at all.'
In any case, neither the US nor UK (nor, indeed, Australia —the only other state to commit troops initially) relied on preemptive self-defence as the legal basis for action. It is difficult to distinguish official legal justifications from the accompanying political rhetoric, particularly on the part of the US, but once this is achieved it is clear that the right of self-defence against Iraq was not formally asserted.' Arguments to the contrary rest partly on vague references to self-defence in a number of US statements,' and partly on confusion regarding the coincidental timing of the National Security Strategy and military action against Iraq. Gardner argues that, by the time the US outlined its legal position,
59
Ibid.
60 Gardner, 'Neither Bush', 588.
61 Brunnee & Toope, 'The Use
of Foree', 792.
20 New Zealand Yearbook of Jurisprudence Vol 8.1
`public opinion ... had [already] come to view the Iraq war as the first application of the new "preventive war" doctrine.' As Harold Koh concludes, however, 'Although some American officials have suggested preemptive self-defense as an additional basis for the war, the core U.S. claim rests not on that murky ground'.' The legal basis must be found elsewhere.
Was Action Authorised by the Security Council?
The argument that military action had already been authorised by the Security Council is much more plausible. It has been rehearsed in detail by various commentators,' but can perhaps best be summarised by quoting the position as presented succinctly by the UK Attorney-General, Lord Goldsmith:
Authority to use force against Iraq exists from the combined effects of [Security Council] resolutions 678, 687 and 1441. All of these resolutions were adopted under Chapter VII of the UN Charter which allows the use of force for the express purpose of restoring international peace and security:
I. In resolution 678 the Security Council authorised force against Iraq, to eject it from Kuwait and to restore peace and security in the area.
2. In resolution 687, which set out the ceasefire conditions after Operation Desert Storm, the
65
Harold Hongju Koh, 'On American Exceptionalism' 55 Stanford Law Review (2003) 1479, at 1521. See also Gardner, ibid., 588589; Franck, 'What Happens Now?', 611; &Linn& & Toope, 'The Use of Force', 794; Falk, 'War Prevention', 592.
2005 Reappraising the Resort to Force 21
Security Council imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area. Resolution 687 suspended but did not terminate the authority to use force under resolution 678.
67 UK Attorney-General, Legal Basis for the Use of Force Against
Iraq,
<http://www . number-10. gov . uk/output/Page3287 . asp>
. Australia's Attorney-General and
Department of Foreign Affairs issued similar advice,
<http://www.pm.gov.au/iraq>
. No such
advice was published by the US Attorney-General, although a detailed statement
of the US legal argument, taking a similar
approach, has been published by the
Legal Adviser and Assistant Legal Adviser of the US Department of State. See
Taft & B uchwald,
`Preemption'.
22 New Zealand Yearbook of
Jurisprudence Vol 8.1
Resolution 1441 clearly does not authorise the use of force,' but its decision that Iraq was in material breach of its obligations allowed the US, UK and Australia to end the cease-fire imposed by Resolution 687,69 and resume the action originally authorised by Resolution 678.' This position has apparently found favour with the UN previously. When Iraq withdrew co-operation in January 1993, the US, UK and France struck against Iraqi facilities. Boutros Boutros-Ghali, UN Secretary-General, asserted that those states had 'received a mandate from the Security Council, according to Resolution 678, and the cause of the raid was the violation by Iraq of Resolution 687'. He concluded that the action conformed to 'resolutions of the Security Council and ... to the Charter of the United Nations:71 In 1998, with Iraq still hampering weapons inspections, the US and UK launched another series of strikes. The justification advanced was again implied authorisation under Resolution 678, although the Security Council was more divided on this occasion.'
There is considerable strength to the argument. Resolution 678 did authorise the coalition to uphold 'all subsequent relevant resolutions and to restore international peace and security in the area', and contained no temporal limitation.' Nonetheless, it is not ultimately convincing. First, Resolution 678 was passed in response to Iraq's invasion of Kuwait, and aimed at Kuwait's liberation. Subsequent resolutions suggest that the force authorised by Resolution 678 extended only to the removal of Iraqi forces from Kuwait, and that any decision as to further action was for the Security Council to
69 UNSC Resolution 687, 3 April 1991, UN Doc. S/RES/687 (1991).
take.' Franck argues that restoring Kuwaiti sovereignty was the 'leitmotif of Council action':
The restoration of "international peace and security in the area" does not connote some expansive further mandate for contingent action against Iraq at the discretion of any individual member of the coalition of the willing. President George Bush Sr. acknowledged as much in explaining why the American military had not pursued Saddam Hussein's defeated forces to Baghdad. They were not authorized to do so.75
In any case, the authorisation in Resolution 678 was granted to those states 'co-operating with the Government of Kuwait', not to all or any members of the UN. The 1991 coalition did not exist in 2003, and it cannot reasonably be claimed that Resolution 678 gave each of the members of that coalition an unlimited right to take action — either individually or jointly — at any time of their choosing, aimed at restoring peace and security to the area.76
Secondly, the unilateral approach of the 2003 coalition is problematic.' Even if it is accepted that further material breaches of Resolution 687 had occurred,' it is essential to consider who was to decide both this question, and what
75 Franck, 'What Happens Now?', 612.
77 Gray, Use of Force, 276-277.
24 New Zealand Yearbook of Jurisprudence Vol 8.1
action to take in response.' William Taft IV and Todd Buchwald have argued that these issues 'should not obscure a more fundamental point: all agreed that a Council determination that Iraq had committed a material breach would authorize individual member states to use force to secure compliance with the Council's resolutions. This was well understood in the negotiations leading to the adoption of Resolution 1441'." The 2003 coalition accordingly reserved the right to decide for themselves whether Iraq continued to be in material breach of its disarmament obligations, duly deciding that it was.' On that basis, it was asserted that —provided the Security Council had simply discussed Iraq's failures' — military action was possible without further authorisation. This is not the case, and a most convincing destruction of the argument is provided by Franck, who finds it 'creative, and ultimately unsustainable'."
The obligations contained in Resolution 687 were imposed, and to be monitored by, the Security Council. In order to facilitate this scrutiny, in paragraph 34 the Security Council decided to 'remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area: Thus, any further steps were reserved to the Council itself, and not to individual states. Resolution 1441, whilst finding that Iraq was in material breach of Resolution 687, decided to provide Iraq with a `final opportunity to comply' by creating an 'enhanced inspection regime'." Any further
80
Taft & Buchwald, 'Preemption', 560.
81 Gray, Use of Force,
277.
82 Franck, 'What Happens Now?', 611-614.
83
Paragraph 2.
material breach was to result in the Council convening immediately, 'in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security.' Warning of 'serious consequences as a result of its continued violations'," the Council decided in paragraph 14 to 'remain seized of the matter: Vaughan Lowe thus argues that, 'the Security Council was itself actively seised of the matter at all critical times ... [and the UK] was quite right to press hard for a second resolution ... explicitly authorising the use of force'.' As Franck states:
... what Resolution 1441 did was to purchase unanimity for the return of the inspectors by postponing to another day, which the sponsors hoped might never be reached, the argument as to whether Resolutions 678 and 687 had authorized further enforcement at the sole discretion of one or more of the Council's members.87
In light of the above, the present author believes that there was no basis in international law for military action against Iraq in 2003.
CONSEQUENCES FOR THE Jus AD BELLUM?
What flows from these conclusions? To be sure, the action against Iraq may have serious implications for international relations and the future of the UN.88 Much will depend on the continuing attitude of the US. After all, President Bush framed the issue in terms of whether the UN would 'serve the
84
Paragraph 12.
735 Paragraph 13.
87
Franck, 'What Happens Now?', 614.
purpose of its founding, or will it be irrelevant?'89 The Security Council's refusal to sanction action against Iraq does not, of course, render it irrelevant — quite the opposite. The Council properly 'served the purpose of its founding by its refusal to endorse recourse to a war that could not be persuasively reconciled with the UN Charter and international
Political fallout is one thing. Operation Iraqi Freedom has, however, had little impact on the jus ad bellum. Despite adoption of the National Security Strategy, there is no serious suggestion that Iraq was the first example of US pre-emptive action. The Bush doctrine was — at least in relation to Iraq — political rhetoric, rather than the legal justification. Several states opposing the action 'expressly rejected' the doctrine,' and although over forty states offered support to the coalition, 'it seems that none did so on the basis of the doctrine of pre-emptive self-defence.' Following the 2002 bomb attack in Bali, Australia indicated support for the doctrine,' but it did not seek to rely on it in 2003, and `[e]ven the UK' has sought to distance itself from such claims.'
Some authors argue that the position expressed in the National Security Strategy may not represent an attempt to radically transform the notion of self-defence in any case. Miriam Sapiro finds it 'reassuring' that the doctrine was apparently narrowed by William Taft IV as early as
91 Gray, Use of Force, 182.
92
Ibid, 183.
94 See
Gray, Use of Foree, 178-179.
2005 Reappraising the Resort to Force 27
November 2002." He argued that the Strategy relied upon the criteria applied to the Caroline incident and Israel's attack upon Iraq in 1981, namely that 'in the face of overwhelming evidence of an imminent threat, a nation may take preemptive action to defend its nationals from unimaginable harm:" Gray writes that it 'remains to be seen' whether a new, expansive, doctrine of self-defence is really being advanced by the US, believing it 'possible that the USA will eventually decide not to persist in this controversial line, on the basis that its earlier doctrine of self-defence against imminent attack ... offers it enough flexibility without provoking opposition from its allies.' Similarly, Jutta Brunnee and Stephen Toope suggest that the National Security Strategy might represent the 'high-water mark of US self-defence rhetoric, and that the actual legal justifications for the Iraq invasion are indicative of a shifting tide:"
All formal attempts to base the use of force against Iraq in international law rested squarely on Security Council authorisation under Chapter VII, clearly seeking to bring it within the existing parameters for the resort to force. The argument is fatally flawed, and impressed neither the rest of the international community, nor UN Secretary-General, Kofi Annan, who declared the action a violation of the UN Charter." Operation Iraqi Freedom was not lawful. Of course, international law is based on what states say and what states do, and it is true that apparent abrogation from its rules can result in the evolution of new rules. As Torn Farer explains:
95 Sapiro, 'Shifting Sands', 602.
97 Gray, Use of Force,
184.
98 13runnee & Toope, 'The Use of Force', 794.
Because every action by a eonsequential state for whieh it elaims legitimacy will produce prescriptive implications beyond its peculiar facts, it will generate a modification of the principal norm if other consequential states follow suit (or even declare a readiness to) when the appropriate occasion arises.m
Violations, however, do not easily change international law in the face of consistent and widespread opposition. Such opposition exists in this case, and the jus ad bellum remains unchanged as a result of the coalition's violation.
The use of force against Afghanistan was much less controversial for most states, with support for US military action against Afghanistan almost universal?' Its impact on the jus ad bellum, however, may be more significant, in that previous state practice would probably not have supported such a response. A small number of states, including the US (and Israel), had previously argued that self-defence against terrorist attacks — striking terrorist targets within the host state — was lawful.'" 'Self-defence' in these situations, however, looked very much like armed reprisals, and international reaction was mixed at best. When, for example, Israel responded to terrorist attacks by Arab groups operating within Lebanon by attacking Beirut airport in 1968, it claimed to be acting in self-defence. This was condemned unanimously by the Security Council.'" In contrast, when the US responded to Al-Qaeda' s attacks on its embassies in Kenya and Tanzania in 1998 by striking targets in Afghanistan and Sudan, the international response was much more equivocal.' Even states refusing to condemn such
100 Farer, 'In the Wake of Iraq', 623.
lol Despite difficulty demonstrating Afghanistan's responsibility for the
Al-Qaeda attacks, only Iran and Iraq opposed the action.
102 See Cassese,
'Terrorism', 996; Gray, Use of Force, 160-164.
2005 Reappraising the Resort to Force 29
actions, however, tend not to support self-defence as the legal basis — at least explicitly. Their reaction demonstrates tolerance and sympathy, not an acceptance of formal legal justifications.1"
Widespread acceptance of the legality of action against Afghanistan has therefore led some commentators to claim that it has 'dramatically altered this legal framework',' and that the customary limits of self-defence have been extended. Terrorist attacks can now be treated as analogous to attacks by a state, allowing an armed response against the territory of a state 'harbouring' the terrorists,' or, even more extremely, `regardless of any link between them and a particular State."' This disregards the Nicaragua judgment, which is not necessarily a problem per se — international law can, after all, evolve. But whether Operation Enduring Freedom will have such long-term implications is still unclear. Gray states that the level of support 'could constitute instant customary international law and an authoritative reinterpretation of the UN Charter, however radical the alteration from many States' prior conception of the right to self-defence!' Cassese disagrees, arguing that, whilst there seemed to be widespread convergence towards a new notion of self-defence, this was 'to a large extent motivated by the emotional reaction to the horrific terrorist action of 11 September, [and] may not amount to the consistent practice and opinio juris required for a customary change."' The ICJ has since implied that acts must still be imputable to a foreign
105 Gray, ibid., 162-164.
106 Cassese, 'Terrorism', 996.
107 Ibid.,
997.
108 Gilbert Guillaume, 'Terrorism and International Law' 53 International and Comparative Law Quarterly (2004) 537, at 546.
30 New Zealand Yearbook of Jurisprudence Vol 8.1
state in order to trigger self-defence:" That Operation Enduring Freedom represented an ad hoc consensus, due to the particular circumstances, seems, therefore, entirely possible. Steven Ratner terms this the 'Eiffel Tower Factor':
It is simply unimaginable that France, Russia, China, or India, each of which spars with the United States on numerous foreign policy issues, would have responded otherwise had Al-Qaeda crashed planes into the Eiffel Tower, the Kremlin, the Forbidden City, or the Taj Mahal. In such a situation, the view of state responsibility proffered by the ICJ, the ICTY, and the ILC — and by many international lawyers — becomes, in effect, instantly anachronistic as a limitation on self-defense.
Indeed, the Eiffel Tower phenomenon might well discount the effect of law eompletely. States reacted as they did on the basis of emotion and empathy:12
It may therefore be dangerous, or premature, to conclude that any enduring change in international law has occurred. Future state practice will reveal more, and the limits of jus ad bellum may yet face sterner examinations. As Ratner recalls, Icloncern for precedent does affect governmental attitudes about some aspects of jus ad bellum ... [but] it did not exert much pull on the United States with respect to [Afghanistan] ' .113 To this could be added ... or Iraq', reminding us that, irrespective of how strictly the limitations imposed by the jus ad bellum are applied, international law is ultimately unable to prevent states from using force where
113 Ibid., 917.
2005 Reappraising the Resort to
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they perceive it to be necessary and are determined to do so. It was ever thus.
32 New Zealand Yearbook of Jurisprudence Vol 8.1
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