Governing the Use-of-Force in International Relations

The Post 9/11 US Challenge on International Law

A. Warren, I. Bode

• Publisher: Palgrave Macmillan
• Year: 2014
• ISBN:
  9781137411440
• Topic: Politics & International Relations
• Subtopic: Public Policy
• Index: Politics & International Relations

This book examines US recourse to military force in the post-9/11 era. In particular, it evaluates the extent to which the Bush and Obama administrations viewed legitimizing the greater use-of-force as a necessary solution to thwart the security threat presented by global terrorist networks and WMD proliferation.

1

The International Legal Paradigm: The UN Charter jus ad bellum Regime

Under the George W. Bush administration, the post-9/11 War on Terror “drive” saw an immense challenge to long-standing pillars of international law that included the legal justification for military engagement – specifically on the conditions for the use-of-force – and the nature in which prisoners of war could be captured, questioned and tried.¹ In appearing to “straighten up” the United States’ international reputation, the election of Democratic candidate Barack Obama in 2008 as the 44th president of the United States “sought nothing less than to bend history’s arc in the direction of justice, and a more peaceful, stable global order.”² Having lost much credibility during the Bush tenure in office, the electoral victory of Obama promised a “realignment”³ in which “hopes were raised in the US attitude towards international law.”⁴ In evaluating the transition from the Bush and Obama administrations in the context of international law, and specifically, their respective approaches to the use-of-force, this foundational chapter provides an overview and evaluation of the international legal paradigm as seen through the UN Charter jus ad bellum regime. It will be argued that both the Bush and Obama doctrines were neither created nor exist in a legal vacuum, but were incorporated, or perhaps even entwined, in a comprehensive system of normative rules leading the use-of-force in international relations – that being, the UN Charter jus ad bellum regime.

In establishing the international legal context within which the Bush and Obama administrations sought to execute their respective global campaigns against terrorism, the chapter begins with a broad introduction to the principles and procedures of the Charter jus ad bellum regime, the key provision of which is the Article 2(4) general prohibition on the use-of-force. While the Charter regime is often viewed – at least on the surface – as a comprehensive arrangement for regulating the use-of-force, many commentators have argued that the continued occurrence of global violence and conflict has for all intents and purposes relegated it to a position of “obsolete” law. A careful assessment of such arguments, however, indicates that notions of the Charter’s demise are greatly exaggerated. Not only is the Charter regime alive and relevant, it also still remains a significant option in the context of regulating international force. Notwithstanding the viewpoints of many international legal commentators, the Charter regime has superseded and subsumed the customary use-of-force regime; UN members do not have the option of reverting to customary law whenever the Charter rules are not to their liking.

In saying this, however, it is important to note that the Charter’s rules are by no means set in concrete. The wording of the Charter is often imprecise and ambiguous, making it susceptible to interpretation when conditions and events in the global order evolve and change. As such, the chapter examines some of these interpretative arguments, focusing specifically on debates pertaining to the interpretation of two key elements in Article 2(4), that being, the term “force” and the phrase “territorial integrity or political independence.” Two arms of these interpretative debates will then be evaluated in the context of the discourse surrounding humanitarian intervention and pro-democratic intervention. As the examination of these debates illustrates, the Charter is very much open to interpretation and thereby, predisposed to change and attempts to alter it. The chapter next considers this process of change or what can be defined as the ongoing reinterpretation of the Charter. Indeed, states pursue the adaptation of the Charter regime commensurate to the shifting global conditions via a process of claim and consent on par to the customary international law-making process, but, unlike that process, one that is defined by the textual and normative structure of the Charter regime. Finally, the chapter argues that regardless of apparent interpretative ambiguity, the essence of the Charter jus ad bellum regime – Article 2(4) – retains a robust normative core, and it is one of the reasons states have pursued great levels of malleability in their use-of-force as they attempt to broaden the Article 51 self-defense exception in lieu of interpreting the general prohibition of force itself. The Bush and Obama administrations’ campaign in the fight against global terrorism to this end will be the subject of the subsequent chapters.

The prohibition of the use-of-force in Article 2(4) and its interpretations

As World War II was coming to its demise in 1945, representatives from 50 states gathered in San Francisco to draft the charter of the new global organization, the United Nations.⁵ Created in the spring of the said year, the UN Charter put forward a set of provisions pertaining to the maintenance of international peace and security to the Security Council. These included

collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.⁶

In attempting “to save succeeding generations from the scourge of war,”⁷ the Charter’s architects constructed a regime that required states to pursue conciliatory means for the resolution of international disputes, and one that rigorously regulated the conditions in which the use-of-force could be undertaken in the international context. As such, the UN Charter sought to establish a normative order that would severely restrict the resort to force⁸ and, through Article 2(4), articulated the necessity of states to “refrain in their international relations from the threat or use-of-force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”⁹

Based on its inference that its principle on the non-use-of-force is binding on all states of the international system, whether UN members or not, it has been argued that Article 2(4) reflects customary international law.¹⁰ Indeed, the International Law Commission (ILC) posited in 1966 that “the law of the Charter” pertaining to the prohibition of the use-of-force in itself “constitutes a conspicuous example of a rule in international law having the character of jus cogens.”¹¹ That said, the Article 2(4) prohibition on the use-of-force is certainly not absolute. There is a specific exception to the general prohibition encompassed in Article 51 that allows for individual and collective self-defense. As stated, there is “nothing in the present Charter” that will restrict “the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”¹² Additionally, the article signifies that measures taken by members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way impact the “authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”¹³

There are two components of Article 51 that need to be considered. First, the article refers to the “inherent” right of self-defense. For the likes of Yoram Dinstein, arguments pertaining to this “inherent” right deriving from the transcendental notion of natural law and/or the sovereignty of states are not plausible.¹⁴ In his view, a more balanced interpretation is reflected by the International Court of Justice (ICJ), which held in Nicaragua (Merits) that “it is hard to see how this inherent right of self-defence can be other than of a customary nature.”¹⁵ By referring to this “inherent right” in Article 51, the Charter jus ad bellum regime incorporates the customary rules on self-defense as they were during the period in which the Charter was drafted; although there is a substantial divergence among analysts as to what was the substance of the then prevailing customary rules.¹⁶ The second component pertains to the period of this right of self-defense, and this too has engendered varying levels of disagreement. David Harris argues that this right is temporary and that a state may execute its right of self-defense only until such time as the Security Council “has taken measures necessary to maintain international peace and security.”¹⁷ In this regard, the Council could inter alia (i) give its retrospective seal of approval to the exercise of self-defense; (ii) impose a general cease-fire; (iii) demand withdrawal of forces to the original lines; (iv) insist on the cessation of the unilateral action of the defending state supplanting it with measures of collective security; or (v) decide that the state engaged in so-called self-defense is in reality the aggressor.¹⁸ It is here that Council measures supersede state action taken in self-defense. Thomas M. Franck, on the other hand, endorses John Foster Dulles’s interpretation of the Charter at the time of its drafting, in which self-defense actions taken under Article 51 can move alongside Security Council measures.¹⁹ This interpretation was evident during the 1991 Gulf War and in the aftermath of the 9/11 attacks when the Security Council recognized “the inherent right of individual or collective self-defense” in this context.²⁰ It appears to be generally accepted, however, that should the Security Council be reluctant or incapable of taking effective action in the execution of its duty to reestablish international peace and security – as has been distinctly evident in the past – a state’s right to undertake self-defense measures continues uninterrupted.²¹

It can be argued that the provisions of the Charter jus ad bellum regime are certainly not fixed and unchangeable. There are many terms and definitions in the relevant articles – such as “force” in Article 2(4) or the “inherent right of self-defence” in Article 51 – that are ambiguous and have spurred extensive debate and interpretation since the inception of the Charter. UN institutions and states, as well as the legal literature itself, have not been successful in solidifying these terms in a coherent or an agreed-upon fashion.²² This is not to say, however, that this is a failure specifically unique to the Charter; disputes pertaining to the meaning of rhetoric and vague formulations have been endemic to all international treaties as they are the outcomes of state compromises. Indeed, no word formula can have, apart from context, any single “clear and unambiguous” or “popular, natural and ordinary” meaning that predetermines decisions in infinitely varying controversies.²³ The task of treaty interpretation, especially the interpretation of constitutional documents devised in the UN Charter, “is not one of discovering and extracting from isolated words some mystical pre-existent, reified meaning,” particularly when viewed in “the developing future.”²⁴ Rather, it is one of giving that meaning to “both words and acts, in total context, which is required by the principal, general purposes and demands projected by the parties to the agreement.”²⁵ It is in this light that the UN Charter, as comparable to a constitutional document in the international order, can be viewed as an evolving organ – its provisions drafted with an element of ambiguity that enables some degree of reinterpretation based on changing international conditions. Nonetheless, this also presents some vexing questions. That being, to what extent are these provisions so imprecisely written as to leaving them susceptible to virtually any interpretation as a means of complimenting a state’s particular political interests? Moreover, to what extent is there a solid substantive core to the UN Charter jus ad bellum regime that extends beyond the conditions of the moment? We will provide answers to these questions in examining the legal debate surrounding two further possible exceptions to the prohibition on the use-of-force: pro-democratic intervention and humanitarian intervention.

Article 2(4) and pro-democratic intervention

A significant issue that has generated extensive debate in the context of Article 2(4) pertains to the alleged right of pro-democratic intervention – that being, an assertive intervention in another state as a means to instill a democratic regime in that state. In this scenario, it appears that the literal textual assessment of the Charter would preclude such a right. The prohibition on the use-of-force in Article 2(4), in combination with the prohibition on intervention in the domestic affairs of states in Article 2(7),²⁶ could be read to protect state sovereignty from external interventions to implement democracy.²⁷

For the likes of Oscar Schachter, Article 2(4) can be interpreted so as to amplify the probability of a people’s free choice of government and political structure – in other words, that the intervention is legal if it engenders popular rule.²⁸ However, the argument put forward by W. Michael Reisman that “ongoing self-determination” is a superior principle of international law that opposes the exact interpretation of Article 2(4) and justifies the use-of-force, provides no definitive independent support.²⁹ Subordinating the general prohibition in Article 2(4) to the right of pro-democratic intervention is a drastic departure from that principle,³⁰ as such intervention undoubtedly undermines the said article. As stated, “an invasion, however brief in duration, violates the essence of territorial integrity . . . Moreover, for a foreign power to overthrow the government of an independent state is surely ‘against the political independence of that state’.”³¹ Juxtaposing arguments necessitate an “Orwellian construction” of the article’s terms.³² It is here that reinterpreting Artic...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• List of Figures and Tables
• Acknowledgments
• List of Abbreviations and Acronyms
• Introduction
• 1. The International Legal Paradigm: The UN Charter jus ad bellum Regime
• 2. Self-Defense in International Law: Preemptive/Preventive Requisites
• 3. Preventive and Preemptive Self-Defense in US National Security Policy: A Brief History
• 4. Bush and the Use-of-Force
• 5. Obama and the Use-of-Force
• 6. The Rise of Drones
• Conclusion: the Use-of-Force and the Making of Hegemonic International Law – From Bush to Obama
• Notes
• Bibliography
• Index