Vol. 20 No. 12 (December, 2010)
pp.676-679
REAPPRAISING THE RESORT TO FORCE: INTERNATIONAL LAW, JUS AD BELLUM AND THE WAR ON TERROR, by Lindsay Moir. Oxford and Portland, Oregon: Hart Publishing, 2010. 192pp. Hardback. $70.00/ £35.00. ISBN: 9781841136097.
Reviewed by Scott Nicholas Siegel, Department of National Security Affairs, Naval Postgraduate School. Email: snsiegel [at] nps.edu.
Many commentators have suggested
that everything changed after the terrorist attacks of September 11, 2001.
Al-Qaeda’s ability to carry out massive attacks on US territory, leading to the
deaths of nearly 3000 people, for some meant that the tenets of classic
international law were obsolete in an age of global terrorism. Lindsay Moir’s
monograph successfully challenges these conclusions. Instead, the author shows
how the rules governing the conditions under which states can use force have not
substantially changed since 9/11. In fact, the rules on declaring war have
become strengthened.
Moir’s central argument, based
on a careful legal analysis, is that
states cannot rely on the UN Charter’s right to self-defense or other
elements of public international law to attack another state preemptively. This
is true even when such threats emerge from private armed groups. There is
nothing unique about non-state actors and the nature of their threat that
suggests the justifications for the use of force requires departure from
established legal tradition. Moir’s analysis is limited to the legal questions
surrounding the use of force. From a political perspective, however, the book
eschews any discussion of why justifications for the use of force changed after
9/11. Was it because of inherent threats to a state’s security or the result of
rational self-interest given a government’s policy motivations? Or were the
attacks of 9/11 so traumatic that some of the world’s leaders attempted to
devise novel legal justifications for why they chose primarily the use of
military force to combat terrorism? While a superb legal exegesis, the book
raises a series of political questions that remain wholly unanswered.
The late Louis Henkin once
stated, “Almost all nations observe almost all principles of international law
and almost all of their obligations all of the time” (Henkin 1979, p.47).
But noncompliance still occurs often. Moir wishes to argue that the US’s
two main military missions after 9/11, in Afghanistan under Operation Enduring
Freedom (OEF) and in Iraq under Operation Iraqi Freedom (OIF), are such cases.
Whether they were unlawful is the central focus of Moir’s analysis. But the
motivation for his questions is also political. Engagement with this topic
appears to be for two reasons. First, he wants to add his own voice to the
strong opposition to the war in Iraq. Second, and following this claim, he
wishes to reassert the relevance of international law in governing the affairs
of states. It bears emphasizing, however, that Moir’s own political motivations
do not interfere or affect his careful, persuasive [*677] analysis of whether
these two military operations were lawful.
Moir’s analysis begins with an
exegesis of the state of the law as it stood before 9/11. Article 2, §4 of the
UN Charter stipulates that states are prohibited from threatening or using force
that jeopardizes the territorial integrity or political independence of another
state. The exceptions are for cases of self-defense, which is permitted under
Article 51 of the Charter and is recognized as a fundamental right of states.
But what constitutes an attack? How do we know a state’s actions in response are
in self-defense? Are there any limits on what those actions may entail?
Moir quickly dismisses the
arguments that states can use force in self-defense in anticipation of an
attack. Judges and legal scholars interpret Article 51 rather narrowly. Military
action in self-defense could only occur if an attack by another was actually
imminent. That is, the use of force for self-defense may only happen if
an attack was being launched; defensive measures were the only way to guard
against it; there is no practical alternative; the actions for self-defense are
limited in scope and severity; or a state has requested immediate assistance
from the international community. There are disputes at the margins over what is
immediate versus anticipatory. Examples of such disputes include Israel’s
actions during the 1967 Six Day War and its attack on the Osirak nuclear reactor
in Iraq in 1981. Nevertheless, Moir argues that there is a broad consensus that
a doctrine of preemption, let alone preventive war, is not permitted under the
UN Charter or customary international law. Of course, what qualifies as
“imminent” in the face of today’s type of international terrorism is hotly
debated.
What of self-defense when
non-state actors are attacking? This is where the international legal community,
namely the International Court of Justice, and states appear greatly divided. In
the NICARAGUA case (1986), the Court ruled that the Nicaraguan government’s
implicit support for rebels attacking Costa Rica, El Salvador, and Honduras did
not meet the threshold that justifies military acts of self-defense. It is
unclear where exactly that threshold lies and when we know it is crossed. As a
result, the criticism of the ruling by national governments was severe, because
each state perceived the ruling as highly impractical. Most governments have
tolerated retaliation by the states attacked by such private groups. What is in
greater dispute among governments is whether the force used in self-defense is
proportionate to the aims sought.
Who authorizes the use of force
in cases of self-defense? Moir persuasively argues that Article 39 of the UN
Charter stipulates that only the Security Council can determine whether there
has been a breach in the peace and decides what actions are necessary to restore
peaceful relations. The Security Council has a wide degree of discretion in
determining both when a clear threat to the peace exists and what measures are
needed in response when adopting a resolution. Yet, the resolutions are usually
the product of political compromise and careful parsing of language. The
Security Council also authorizes UN members explicitly to use military force.
Combined with the ambiguous threshold of violence that would permit the use of
[*678] force in self-defense, it is unsurprising that the legal debate over US
military operations after 9/11 centered on these two issues.
In the next two chapters, Moir
carefully applies these legal findings to both the wars in Afghanistan and Iraq.
He finds good grounds to question their lawfulness. First, armed insurgents
within Afghanistan, not the Taliban, attacked the US. Therefore, under
NICARAGUA, the US had no justification for attacking or even removing the
Taliban from power. The Taliban had no control over the group, which is defined
as directing a group’s activities, not whether an armed group is operating in a
state’s territory with implicit consent. Second, once Flight 93 crashed in a
field in Pennsylvania, the attacks had stopped. There was no immediate
threat of additional ones. Third, the forced removal of the Taliban regime was
also disproportionate to the aims sought to be achieved, which was the capture
or elimination of Osama bin Laden and other members of Al-Qaeda. Of course, none
of these legal conclusions would have mattered to the United States government
at the time.
One possible legal justification
for toppling of the Taliban regime Moir does put forward is the regime’s
repeated violations of UN Security Council resolutions demanding the surrender
of Al-Qaeda members to the US or international courts. Noncompliance with UN
resolutions would also become the chief legal basis for the United States’ case
for attacking Iraq. But Moir meticulousl y unpacks the arguments of both the
United States and the United Kingdom that military intervention was permissible
under UN Resolutions 678, 687 and 1441. Unsurprisingly, Moir finds little legal
or logical support for their argument. (A memo written by then-Attorney General
Lord Peter Goldsmith to Prime Minister Tony Blair, released through the Chilcot
Commission’s investigation concerning the war in Iraq, shows that British
officials themselves were not convinced that there was a legal basis for the
war.)
Widespread opposition in the
world community to the war in Iraq and the Bush administration’s clear
manipulation of intelligence to justify the war helped cast doubt on the
revolutionary legal interpretations of the laws of war US officials constructed
to justify the war in Iraq. This reticence to accept the Bush administration
doctrine of preemption was not just a function of the world public opinion
against its contempt for international law. It also reflected the fear other
governments had if this legal doctrine became fully accepted as a fixture of
customary international law. If broadly accepted, other states could justify
their own military interventions, unleashing chaos in the international system.
For the sake of world order, most governments did not accept these revolutionary
legal concepts. Thus, Moir is correct to conclude that there should be little
concern that a new doctrine of preemption or, more precisely, preventive war has
now supplanted classic principles of international law.
What is less clear is what
constitutes self-defense when facing a threat by armed private groups operating
across international borders. The level of destruction the 9/11 terrorists
unleashed on the United States raises doubts about whether the high evidentiary
standards [*679] earlier ICJ rulings, such as NICARAGUA, can and must be met
before a state chooses to disarm or eliminate private actors operating in
another country’s territory. Proving that a state is actively supporting a
non-state violent group to justify armed intervention is unrealistic in the
light of the great harm these groups can inflict in such a short amount of time.
But the fears of the effects for international stability by responding
constantly with only the use of military force still preclude governments from
quickly responding solely with this tool of statecraft. This may explain why
India refrained from responding militarily to the Mumbai terrorist attacks after
the perpetrators were discovered to have close ties to terrorist groups
operating in Pakistan.
What is missing from Moir’s
analysis, however, is the politics behind these attempted changes to the laws of
war. Reviewing the case law, it is curious that Israel and the United States are
the perennial suspects accused of violating international law. Why would the
United States, the largest and most powerful state in the international system,
and Israel, a small country in a very hostile neighborhood, both be regularly
appearing as respondents in the cases of international law? Part of the reason
is surely that their opponents, the states under attack, are seeking whatever
rhetorical and normative tools are available to them to curtail their actions.
But both countries have also demonstrated at least a problematic record of
abiding by the norms of international law, especially in regards to the use of
force. For example, in the US there is a powerful conservative stream of legal
thought that perceives a limited role for international law in shaping state
practice. It is the ascendance of this school of thought domestically that
explains why Moir’s book even became necessary.
The skepticism or even contempt
these countries have for international law may simply be the result of being
constant targets of violent action. But, in the wake of the attacks of 9/11 and
their aftermath, the available evidence shows that military responses to these
threats are not the most effective methods of preventing them. Thus, there is no
practical necessity to revise the laws of war. Instead, how these two countries
have reacted to international terrorism and the culture of fear that emerged
afterwards seems to be driving these intellectual endeavors to change the laws
of war. We need to better understand these dynamics. When we do, we will not
just be able to determine whether changes to the laws of war are necessary. We
will also be more effective at preventing future violations of the laws of war
by having strong legal norms and arguments to which we can turn to stop unlawful
actions from happening again.
REFERENCES:
Henkin, Louis. 1979. HOW NATIONS
BEHAVE. New York: Columbia
University Press.
CASE REFERENCES:
CASE CONCERNING MILITARY AND
PARAMILITARY OPERATIONS IN AND AGAINST NICARAGUA (NICARAGUA v. UNITED STATES OF
AMERICA), ICJ Reports (1986) 14.
*********************
© Copyright 2010 by the author, Scott Nicholas Siegel