Legitimate Use of Force and the National Interest: Continuing the Discussion

by Tom Farer

I want first to qualify my statement in the last post that probably a majority of contemporary scholars and governments still cling to the position that the only legitimate uses of force are defense against armed attack and enforcement action authorized by the Security Council. In fact, particularly among European and American legal scholars and NATO governments there has grown a conviction that force may or at least should be used as a last resort to prevent or terminate crimes against humanity even without Security Council Sanction; these scholars (among whom I number myself) and governments have, in other words, endorsed Humanitarian Intervention (HI). This position could be seen as a corollary of the claim, first officially articulated, I believe, by Lloyd Axworthy when he dominated Canadian foreign policy, that states have a responsibility to protect (RTP) their nationals and that the failure to exercise that responsibility gives other states a license to act as the delinquent state’s proxy for that purpose. (I recognize that the assertion of a right to intervene for humanitarian purposes preceded in time authoritative articulation of RTP.) While not explicitly endorsing Humanitarian Intervention, by endorsing the idea of RTP, Kofi Annan while serving as UN Secretary-General certainly hinted at its legitimacy. The International Commission on Kosovo set up by the Government of Sweden expressed my own views when it drew the distinction between “legitimacy” and “legality” under the Charter. Legitimacy obtains, I believe it was saying in the case of non-UN-sanctioned military operations like NATO’s in the Kosovo case, when the use of force satisfies Just War criteria.

Roger Alford’s thoughtful comment provides a nice segue to the issue for which I tried to lay a foundation in my second post, namely whether or in what circumstances a state can legally take preventive military action unsanctioned by the Security Council against non-state terrorists residing in another country. By “legally” I mean within the UN Charter paradigm. Roger writes that I am “equivocal” about the case where the potential target state is either unwilling or unable to act at the request of the state at risk from the terrorists. Perhaps it would be more precise to say that I am “uneasy and unclear.” Uneasiness is native to the issue and will therefore endure. The lack of clarity is susceptible to immediate correction.

To a degree Roger himself suggested the source of my unease. As Ken notes, we are dealing with networks of alienated groups, some of them microscopic, and even individuals. Some are already committed to violent action; others are not themselves committed to violence but are willing to enable those who are; still others may simply be contemplating active cooperation with committed terrorists; and still others may be at the stage of deep alienation but without specific plans or active involvement. David Kilcullen, the former counter-terrorist advisor to General Petraeus, calls it the “ladder of extremism.” What unites everyone on it is the Jihadi narrative in which the West, led by the US and assisted by Islamic traitors, is waging war against the Muslim world for the purpose of extracting its resources and keeping it weak. What distinguishes them, aside from their respective positions on the ladder, are local conditions that, together with the narrative, feed their alienation.

A doctrine authorizing unilateral action may be aimed initially only at groups on the top of the ladder and might purport to limit attacks on them to cases where it is clear either that they are preparing a specific attack or series of attacks or that they have already engaged in terrorist actions (and thus have demonstrated their dangerousness and may be presumed to be preparing additional attacks, as in the case of Al Qaeda). And the doctrine may further condition recourse to force on the unwillingness or inability of the host state to move against the terrorists or to authorize action by the government that regards itself as the terrorist’s target. But just as the Israeli experience suggests that a license for brutal interrogation nominally limited to the “ticking bomb” case will metastasize, so in practice, I suspect, will be a nominally very limited doctrine of unilateral armed prevention. The operative presumption is likely to become: “When in doubt about the quality of our intelligence or the place of suspected terrorists on the ladder of extremism or the willingness or ability of the haven state to act as our proxy, it is better to err on the side of prevention.” The result, I fear, would be a further global erosion of normative restraint on the use of force. As the Russians recently demonstrated, other countries will certainly claim the same privileges as the US and, relying on strained analogies, possibly a good many more. So there are ample grounds for “unease.”

Does my unease lead to the conclusion that unilateral action should be ruled out either as a matter of law or long-term national interest in limiting the use of force as an instrument of statecraft? First the legal question. And the answer is: “It depends.” I distinguish in my book the case of Afghanistan where a state knowingly provides a base for a terrorist organization that is engaged in a series of attacks on Americans. Since each attack can be fairly seen as analogous to a “battle” in an ongoing war and attacks may be renewed at any time, and since the haven state has demonstrated its unwillingness to halt the attacks, I conclude that a forceful U.S. response falls within the Charter paradigm as self-defense under Article 51 of the Charter, if reported to the Security Council as Article 51 requires. Given conditions in Somalia, assuming US operations there have be directed against Al Qaeda members, it too would fall within the Charter, if the U.S. reported it actions to the Council.

The more difficult case is the allegedly terrorist group that has not previously attacked U.S. targets but is believed to have secured WMD and the US has intelligence that the group is planning its first attack, intelligence so sensitive it is reasonably unwilling to share it with Security Council members. My inclination would be to treat this as too exceptional a case to turn into a formal exception to the Charter rules, to treat it by analogy to euthanasia in domestic law.

http://opiniojuris.org/2008/09/04/legitimate-use-of-force-and-the-national-interest-continuing-the-discussion/

8 Responses

  1. Well I would suggest there is an even more disturbing case than the Russian actions in Georgia, namely the actions of the United States over the last seven years. We don;t have to look very far to find a terrorist organization armed with WMD — the Republican Party is obviously the most dangerous terrorist organization in the world, and over the last seven years they’ve murdered a lot more people than Al Qaeda has. When someone argues for the preemptive use of force, all they’re really saying is that Al Qaeda’s attack on 911 was just a good idea.

    My position is simple:

    1) The Kellogg-Briand pact and the IMT Charter are the law.

    2) The difference between Kosovo and Iraq is the intent: using force to stop a rape is not the same thing as using force to commit rape.

  2. With all due respect, that’s the longest, most convoluted thing I’ve seen in months.  I have no idea what point you’re trying to make.  Why not apply your analysis to the Russian invasion of Georgia?  I have no difficulty in saying that Russia acted illegally from start to finish.  Can you really say the same? You will no doubt have noticed that the Russians, with their exquisite sense of irony, have very cleverly adopted the language and theories that George Bush and the Neo-Cons (such as yourself) used to justify their own war of aggression against Iraq.

    For a more specific example, can you draw a truly principled distinction between America’s right (as proclaimed and advocated by assorted neo-cons) to “take out” (e.g., assassinate) Saddam and Russia’s “right” to change Saakashvili’s status from “political corpse” to actual dead person?   Anyone who has been reading the statement coming from the Russians must surely be struck by the parallels between the neo-con’s rhetoric and analysis on Iraq and their illegal actions in Georgia.  So, Bush was entitled to do what he did in Iraq but Putin isn’t similarly entitled to have his “peacekeepers” invade and “prevent” the “growing terrorist threat” allegedly posed by Georgia?

    Once you have made your case, in simple language, we can then have an intelligent debate about whether your lot opened a real Pandora’s box in Iraq and the implications for the future

  3. Response…

  4. Quote: “among European and American legal scholars and NATO governments there has grown a conviction that force may or at least should be used”

    This conflicts with the fundamental principle of law that no one should be her own judge. Those scholars and NATO governments don’t mean that Russia or Iran “may” use force in any case where they are not attacked first, for instance as a pre-emptive defense, or “as a last resort to prevent or terminate crimes against humanity even without Security Council Sanction”. Those scholars and governments mean that they themselves “may” use force.

    This playing her own judge is even more suspect when the majority of the world sees that there is a conflict of interest in those interventions, that those intervening, gain undeserved advantages from those interventions, like oil and power.

    A similar conflict was underlined by Judge Weeramantry in his book “Armageddon or Brave New World”: ‘Stated in language shorn of diplomatic niceties the American and British position is: “It is quite in order for us to have weapons of mass destruction, but other people whom we disapprove of commit a grievous offence under international law if they do. They must be prepared to be brought into line with international law by facing severe punishment if they do. This means that even if their populations were not responsible for this gross violation of international law, they may be killed and injured in their thousands when we attempt to enforce international law in their own interest and in the interests of the world community. We alone will decide against whom we will act and to whom we will grant exemption from obedience to the law.

    If the world should feel that this erode the basis of international law and the moral authority of the self appointed enforcers of international law we will treat such unfair criticism with the contempt it deserves.”’

    Is the fact that those in power play their own judge a fact of life or a natural law? No. The fact that a third, neutral party, a court of law does not exist to decide whether those interventions could be declared “legitimate”, is only a fact because those same guys, who play their own judge, do everything in their power to make such a court impossible. In short those “legitimate” interventions amount to Al Capone declaring that whatever he does is legitimate, and systematically refusing to accept a judge as the decider of this legitimacy.

    Of course those kind of arguments would not convince anybody but some “European and American legal scholars and NATO governments”.

  5. Mitch,

    I see that you seem to think that the Russians broke the law from start to finish against the Georgians.

    I guess my question to you would be, why do you fail to point out that the Georgians started murdering people that were sleeping to begin with?

    The Georgians? They got what they deserved and anyone that wants to cry in their milk over it… too bad. If Saakashvili escapes with his life, and it seems that he will, he should call up Medvedev and Putin and tell them “Thank you.”

    The second that Georgia started killing innocent civilians, Russia absolutely had the right to exterminate every person involved, which certainly included Saakashvili.

    Dayvid Franke

  6. “The second that Georgia started killing innocent civilians, Russia absolutely had the right to exterminate every person involved, which certainly included Saakashvili.”

    That’s certainly a rather… broad reading of humanitarian intervention.

  7. Is it? The same could be argued of anyone that supports the death penalty.

    Russian public opinion certainly isn’t American public opinion, nor should it be.

    The fact remains that Saakashvili started this and although Russia had troops at the border before he started this, they would still be in Russia if he hadn’t done what he has done.

    Anyone that breaks the law and cries for mercy afterward, is deserving of what they get because quite simply, they should have known better.

    How many people has the USA put to death after the court has found them guilty? Pedophiles, murderers, and spies? Hmmm?

    Russia didn’t, nor will it ever need someone’s permission to punish people that blatantly broke the law against Russian citizens. To argue anything else would be both hypocritical and absurd in the highest degree.

    Dayvid Franke

  8. Mr. Gross, I certainly respect your opinion and my goal isn’t to turn people’s opinions against Russia. It is only to state that Russia had the right to defend her citizens every bit as much as anyone else would have the right to.

    A bit about Russian public opinion, though it may seem harsh, there is a certainty that the people that killed civilians and were in turn killed, certainly won’t be doing it again. Granted, though not popular by society’s standards in general, there is a certain straight forward logic that cannot be denied. If people or anyone for that matter, transgress against Russian citizens, there is absolutely no denying the fact of what is going to happen. The United State’s approach, I am certain, would be no different.

    Humanitarian? Of course not. It is akin to what is going on in Iraq and Afghanistan with the United States and Muslims. Saakashvili knew what would happen and he proceeded believing that fear of a new, powerful Russia would prod the court of the world’s opinion in his favour and to a degree, he was correct. It does not absolve him of his responsibility in the matter however.

    Dayvid Franke

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