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9 Responses

1. You can always count on KUKD Bolton to assert as fact a highly contested argument as to the legality of the Iraq War. Hans Corell, former Legal Advisor to the UN Secretary General in March 2003 was very clear in (sadly) considering that the invasion was an illegal act by two of the key members of the Security Council. You can see his comments in the ASIL Proceedings 2007 under Ethics, Legitimacy and Power……”
   
   Best,
   
   Ben

   5.29.2008
   at 12:47 pm EST Benjamin Davis

2. “Since the Security Council’s unanimous 1991 adoption of Resolution 678 - the ceasefire resolution ending the first Persian Gulf war - Saddam Hussein’s regime repeatedly violated it. By systematically demonstrating its unwillingness to abide by Security Council resolutions, Iraq violated the terms of the ceasefire in countless ways. By so doing, Iraq vitiated the ceasefire, and revived the initial authority under Security Council Resolution 678 to use all necessary means to deal with the threat posed to international peace and security by Iraq. Accordingly, the premises of your question are erroneous in law and erroneous in fact.”

   Followup questions: Mr. Bolton: Other than the Security Council what entity or body is authorized, under international law, to render a binding legal conclusion that “repeated” violations of a Security Council’s resolution have, in fact and in law, occurred? Provide legal authority to support the entities or bodies you name. Identify all other instances where “vitiation” of a ceasefire resulted in the lawful resumption of war under a Security Council resolution. Provide other examples initial authority to wag war have been “revived” by an entity other than the Security Council. What entity or body, other than the Security Council, is authorized, under international law, to determine that the alleged “repeated violations” are sufficiently material for an entity –other than the Security Council — to “authorize” the initiation a war of aggression.
   
   Explain how a question can be “erroneous in law”. Describe, in as great a detail as is possible for you, the threat Iraq, in fact, as opposed to your imagination, posed. If the U.S. didn’t believe that Security Council authorization was required to renew the war why did it take, or attempt to take, the steps it took to obtain it?
   
   I certainly hope that some country somewhere has the courage to indict him for being the war criminal he is.

   5.29.2008
   at 3:47 pm EST stevelaudig

3. Better yet, explain why violation of a ceasefire shouldn’t renew an already-authorized war in the manner that breaking a ceasefire has done for the last century or so?

   5.29.2008
   at 4:12 pm EST Matthew Gross

4. Better still, explain why a ceasefire should be capable of perpetuating a casus belli under the jus ad bellum? Say, if the original action against Iraq had been based on Article 51, rather than Article 42, why would a ceasefire, containing all sorts of conditions, keep the justification of self-defense available in respect of armed action against any future Iraqi breach of those conditions, whether they involve an ‘armed attack’ or not?

   Why, furthermore, should Article 60 VCLT (the source of the concept of a ‘material breach’) apply to SC resolutions? Explain, if you will, why - given that the SC, unlike the drafters of a treaty, remains in place to decide all subsequent matters itself - it should be appropriate to allow the norm takers to affect the existence of the rules where necessary, when the norm giver might do it just as well.

   5.29.2008
   at 4:42 pm EST Tobias Thienel

5. Better still, explain why a ceasefire should be capable of perpetuating a casus belli under the jus ad bellum? Say, if the original action against Iraq had been based on Article 51, rather than Article 42, why would a ceasefire, containing all sorts of conditions, keep the justification of self-defense available in respect of armed action against any future Iraqi breach of those conditions, whether they involve an ‘armed attack’ or not?

   A cease-fire is merely a pause in hostilities agreed to by both parties. Cease-fires are ended all the time without effecting the legal status of the conflict (I’d point to the Israeli-Palestine conflict as an example.)

   As such, it wouldn’t effect casus belli for a conflict at all. The aggressors are still the aggressors, regardless of who ended the cease-fire.

   Why, furthermore, should Article 60 VCLT (the source of the concept of a ‘material breach’) apply to SC resolutions? Explain, if you will, why - given that the SC, unlike the drafters of a treaty, remains in place to decide all subsequent matters itself - it should be appropriate to allow the norm takers to affect the existence of the rules where necessary, when the norm giver might do it just as well.

   This was intentionally done by the SC itself. They had the option to phrase the resolution however they wanted, including additional terms regarding the resumption of hostilities. Instead, the said the following in Resolution 687:

   Declares that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions above, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with resolution 678 (1990);
   
   

   Having stated the agreement is a cease-fire, why should it not be bound by the traditional termination constraints of a cease-fire? It would seem to me they have agreed to such.

   5.30.2008
   at 10:45 am EST Matthew Gross

6. I wasn’t going to suggest that a ceasefire affected the casus belli. Instead, I would suggest that the casus belli, particularly one under Article 51, lapses of its own operation once the original ‘armed attack’ is no longer present (which, admittedly, is still the case if there is still a proximate risk of renewed attack). Once the facts on the ground have reached that stage, the defender state must cease using force. It cannot simply declare a ceasefire and take up arms again in accordance with that, unless a new ‘armed attack’ materializes. Nor would a ceasefire put in place before the end of lawful defensive measures (i.e. still in the presence of an ‘armed attack’) provide any basis for the renewal of armed action if the ‘armed attack’ ceases to be present while the ceasefire is in force.

   Basically, my argument is that the existence of a ’state of war/armed conflict’ has no bearing whatsoever on the legality of military action. That is always a question of the jus ad bellum.

   A ceasefire may therefore be no more than a pause in hostilities, and leave the characterization of the situation unaffected (though I wonder what the concept of the ’state of war/armed conflict’ is for, other than IHL). But this does not mean that a state may, as it were, continue to use force, for no reason other than that this is a mere continuation of a state of affairs that started out as lawful.

   On the other matter, that of the Security Council: Article 42 of the Charter says that the Council may authorize the use of force if ‘it consider[s] that measures provided for in Article 41 are inadequate or would be inadequate.’ In keeping with the purpose of the Charter to minimize the use of force (witness the preamble: ’scourge of war’, etc.), it therefore demands that the Council form a judgment on the necessity of armed action. I would have thought this refers to every time that peace on the ground (in fact) is to give way to the use of force. Of course, under the US/UK argument, much the same obligation would have applied, but only when Res. 678 and 687 were adopted. I don’t think that’s a credible reading of the subsidiarity of Article 42, essentially for the reason mentioned above: the Council is make a careful assessment every time it decides that people should be exposed to the scourge of war. It follows that it would not even be allowed to put in place an authorization to use force at some future point in time, and for reasons that are only loosely circumscribed. [Who's to say, incidentally, that on the US/UK approach, there is any strict need for the Council to find that a material breach has occurred?]

   5.30.2008
   at 3:43 pm EST Tobias Thienel

7. Instead, I would suggest that the casus belli, particularly one under Article 51, lapses of its own operation once the original ‘armed attack’ is no longer present (which, admittedly, is still the case if there is still a proximate risk of renewed attack). Once the facts on the ground have reached that stage, the defender state must cease using force. It cannot simply declare a ceasefire and take up arms again in accordance with that, unless a new ‘armed attack’ materializes. Nor would a ceasefire put in place before the end of lawful defensive measures (i.e. still in the presence of an ‘armed attack’) provide any basis for the renewal of armed action if the ‘armed attack’ ceases to be present while the ceasefire is in force.

   While I understand your line of reasoning, I think you underestimate how undesirable such a situation would be. Ceasefires can be called for a number of reasons, ranging from a break for (possibly unsuccessful) peace talks to a mutually-agreed break to allow for the evacuation of civilians.

   If it is held that casus belli such as that provided by Article 51 expires, we add a significant risk to declaring a ceasefire. If one is attacked by a hostile nation, and then declares a ceasefire for whatever reason, you’re left with no legal recourse as your enemy positions themselves for the next attack. If you argue that nothing short of an “armed attack” can breach a ceasefire, you strip any conditional ceasefire (such as Resolution 678) of any real meaning.

   I’m arguing from outcome rather than law here, as to my knowledge no one has really been tried on this issue, and is unlikely to be until at the very least the ICC decides what a crime of aggression is.

   In keeping with the purpose of the Charter to minimize the use of force (witness the preamble: ’scourge of war’, etc.), it therefore demands that the Council form a judgment on the necessity of armed action. I would have thought this refers to every time that peace on the ground (in fact) is to give way to the use of force.

   This seems to imply even an undeclared ceasefire (basically, a halt in operational tempo) would necessitate reauthorization before hostilities could continue. The Security Council remained seized of the issue and could have acted to prevent hostilities during the second Iraq War. They did not.

   6.02.2008
   at 11:03 am EST Matthew Gross

8. 
   If it is held that casus belli such as that provided by Article 51 expires, we add a significant risk to declaring a ceasefire. If one is attacked by a hostile nation, and then declares a ceasefire for whatever reason, you’re left with no legal recourse as your enemy positions themselves for the next attack. If you argue that nothing short of an “armed attack” can breach a ceasefire, you strip any conditional ceasefire (such as Resolution 678) of any real meaning.
   

   Is it really altogether desirable to say to an aggressor state that once it has attacked its neighbour, it is never again protected by Article 2(4)? If not, I suppose we will have to accept that the casus belli of self-defense must expire at some point. I find it only natural that this would be the point where the purpose of defensive action has been achieved, i.e. where the threat of a continuation or resumption of armed action has subsided. I find it possible that in your examples, the defender state would still be allowed to continue its armed defensive action. This is largely because a state victim of an armed attack may, of course, while the attack is still in progress or a risk of its continuation remains, try to end the conflict by non-military means. To do so does not necessarily mean, therefore, that the original armed attack is no longer “present”, and that the defender could not take any measures other than peaceful ones. If negotiations break down, the situation of the original armed attack may still continue, and Article 51 will still apply.
   
   The same goes, a fortiori, for your case of a ceasefire to allow for the evacuation of civilians. Such a pause in hostilities would never have been intended to end the conflict, or to alleviate any risk of further aggression.

   The critical point in my argument therefore seems to be that the right of self-defense does not cease to be available as soon as the guns fall silent. The true position, as I understand it, is that Article 51 allows the defender not only to stop the attack, but also to continue to defend itself until the attack can no longer resume. [See the ILC's Addendum to the eighth report on State responsibility, by Mr Roberto Ago, The international wrongful act, source of international responsibility (part 1) (concluded), ILC Yearbook 1980, UN Doc. A/CN.4/SER.A/1980, Vol. II, part 1, pp. 13, 70; D.W. Greig, 'Self-Defence and the Security Council: What Does Article 51 Require?', ICLQ 40 (1991), pp. 366, 392-3; L. van den Hole, 'Anticipatory Self-Defense under International Law', American University International Law Review 19 (2003), pp. 69, 104; S.D. Murphy, 'The Doctrine of Preemptive Self-Defense', Villanova Law Review 50 (2005), pp. 699, 735] The important point, then, is not that the guns are silent, but whether they are likely to remain so for the foreseeable future. Reactive self-defense therefore has a limited aspect of preventive action to it. [Murphy, ibid.]
   
   If a ceasefire does not put an end to the risk that the attack might resume, but only suspends the risk for the time that it remains operational, its end of operation may well entitle the defender state to continue in its defense by using military force. If, however, peace is in fact restored, the ceasefire cannot maintain a contingent right of self-defense for all time, and place that right only under such conditions as its framers may have intended.

   This is just by way of clarification. No need to argue until the cows come home, I guess.

   
   This seems to imply even an undeclared ceasefire (basically, a halt in operational tempo) would necessitate reauthorization before hostilities could continue.
   

   This does seem a little unrealistic. On my reasoning, the authorization to use force under Article 42 may well lapse once the whole operation has concluded, and this because further armed action runs a risk of going beyond the assessment originally (and, with any luck, carefully) made by the Council. But, in what I believe are the correct military terms, that would be a strategic issue, not a tactical (or operational) one.
   
   

   
   The Security Council remained seized of the issue and could have acted to prevent hostilities during the second Iraq War. They did not.
   

   Of course it could have done, but the fact that it did not does not mean it has endorsed, much less authorized, the second Iraq war. To make such a point would be to turn Article 42, and the voting regime of the Council, on its head. But is that actually your argument?

   6.02.2008
   at 1:57 pm EST Tobias Thienel

9. Of course it could have done, but the fact that it did not does not mean it has endorsed, much less authorized, the second Iraq war. To make such a point would be to turn Article 42, and the voting regime of the Council, on its head. But is that actually your argument?

   Not in a real sense, it merely shows (in my opinion) that the Security Council had no real objection towards the US’s position regarding resuming war after the ceasefire. We should at least be able to assume that the Security Council did not think the US invasion was a violation of Article 2.

   Of course, the decision was ruled by realpolitik rather than legal reasoning, but in the end, all Security Council decisions are.

   6.02.2008
   at 2:15 pm EST Matthew Gross

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