Legal Restraints on the Use of Force in Combatting Mass-Casualty Terrorism

There are only two things about the consequences of the use of force that can be predicted with absolute confidence. One is that innocent lives will be destroyed. The other is that when democracies go on a war footing, the normally ample liberties of their residents (particularly resident aliens but also citizens) will shrink. It therefore follows from the description of Liberalism contained in my first post that liberals will be skeptical about proposals to use force and will oppose them whenever less inherently destructive means appear to be available or when it appears that violent means will have a net adverse effect on humanitarian values. In short, for Liberals there is a presumption against recourse to force which dissolves in the face of exigent circumstances and legitimate ends. Self-defense is a legitimate end. The use of force for traditional reasons of state, namely to enhance national power, wealth or prestige at the expense of other peoples, is not. (I note, parenthetically, that skepticism does not equate with that lock-step exhaustion of non-violent means embedded in UN practice. When, for instance, genocide looms, the most immediately appropriate response will often be to reach for the bayonet. And the very readiness to leap to the option of force, if credible, may obviate its actual application.)

I think it fair to say that at least in the first decade following the founding of the United Nations, the generality of scholarly and diplomatic discourse supported an interpretation of the Charter that incorporated Liberalism’s use-of-force metric. Article 2(4) read in conjunction with the totality of Chapters 7 and 8 was construed as banning force except where it was authorized by the Security Council under its Chapter 7 authority or was employed in self-defense against an actual or what reasonably appeared to be (pace Kelsen and Randelshofer) an imminent armed attack. To be sure, there were scholarly voices of dissent—most notably Julius Stone, Derek Bowett and Myres McDougal– that on various grounds claimed a wider ambit for the use of force. And certainly a number of states able to project force transnationally—in particular the US, the USSR and Israel—episodically employed it in ways that could not be reconciled easily, if at all, with the more restrictive view. But even in the face of that inconsistent practice, probably a majority of scholars and UN members continued right through the Cold War to insist that the only legal uses of force unauthorized by the Security Council were cases of self-defense against actual or imminent armed attack.

In recent years, however, the Charter conceived as above all a formally hegemonic system of restraint on the use of military power to advance self-defined national interests has been buffeted from several quarters. Neo-conservative publicists like Jeane Kirkpatrick and John Bolton, have described it as an intolerable restraint on the exercise of American hegemony for the purpose of spreading democracy and free markets and, particularly since 9/11, extirpating terrorist movements, at least those hostile to American interests. For them international legal restraint is a tool of Lilliputians for imprisoning a noble crusading Gulliver. In Kirkpatrick’s words: “foreign governments and their leaders, and more than a few activists here at home, seek to constrain and control American power by means of elaborate multilateral processes, global arrangements, and UN treaties that limit our capacity . . . to act abroad.” The Pentagon’s 2005 National Defense Strategy Paper echoes this theme: “Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora . . . and judicial processes [presumably the International Criminal Court and a few national courts in Europe asserting a broad jurisdiction over crimes against humanity]”

Neo-cons seem to be questioning not so much the formally authoritative character of the UN system as its compatibility with US interests including the democratization of the world, the extirpation of hostile movements that employ terrorist means and the denial of WMD to unfriendly states. The Bush Administration has been in step with them. What is unclear to me is whether the Administration and its fellow-travelers are claiming that the system is broken and hence not applicable to anyone or simply that the US being exceptional, the Charter restraints are not applicable to it.

From a very different point on the political spectrum, a few scholars, Tom Franck and Michael Glennon prominent among them, have challenged the authoritativeness of the system, stating in essence, that the magnitude and openness of deviance (most notably Kosovo and Iraq) evidence a collapse of that influence which norms must possess in order to be deemed operative.

But the most extraordinary and paradoxical source of doubt about the contemporary authority of Charter norms comes from within the UN system itself, from the High Level Panel of diplomatic paladins, broadly representative of the UN membership, appointed by Kofi Annan in the wake of Iraq to assess how well the UN system had been doing to address threats to the peace. With respect to the restraints on the use of force, the Panel concluded that as a consequence of the Cold War and the multiple instances of great-power deviance from the notional norms of the system, they had not even in the first instance become operative. However, the Panel concluded, there now existed a broad consensus in favor of finally making those norms operative and, it added pointedly, an equally broad opposition to special privileges for any power even when purporting to act in defense of Charter values. It did everything but name the United States.

Against that background, the central policy issue is whether, as neo and other types of conservatives argue, the Charter norms, whatever their previous virtues, have been rendered obsolete by the onset of mass-casualty terrorism against a background of spreading capability to produce and deploy WMD. I will turn to that issue in my next post.