International Law and the Use

International Law and the Use of Force

RIGHTS, REASON or the SURVIVAL of the FITTEST?

When the United States decided, after a lot of serious thought, to use force in self-defense following September 11, 2001 events, it did so according to fundamental principles allowing it (Taft 2005). That right included pre-emptive use in self-defense. This was embodied and affirmed in U.S. President George W. Bush's National Security Strategy made in September 2002. It was not a new concept in international law nor in U.S. history or experience. Rather, it proceeded as a natural adaptation of the concept of "imminence," leading to the current "era of weapons of mass destruction (Taft)."

The United States insists that it has fought its enemies according to the tenets of international law (Taft 2005). This has been its position from the start and after September 11, 2001. Today, it stands pat on its commitment to fight terrorism according to the rules of international law. It is one with the United Nations Security Council in recognizing the right to self-defense against terrorist activities and the right to the use of force preemptively in self-defense in well-established and appropriate circumstances. The UN Charter limits the use of force to self-defense to resolving international disputes. At the same time, it recognizes the "inherent right" of States to the use of force. The Charter expressly states that "nothing... shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations." The UN Security Council has an important role to play in addressing threats to international peace, but it has no capability to prevent or stop the rightful use of force. It rests on individual States to defend themselves from attackers (Taft).

President Bush reaffirmed a State's right to use force before an actual attack when an attack is "imminent" and all peaceful remedies have been taken (Taft 2005). He elaborated on this concept of imminence in his National Security Strategy. He said that the right of self-defense would be pointless if the State could not prevent aggressive strikes by and from an enemy. Chapter VII of the UN Charter empowers the Security Council to take steps "...to maintain or restore international peace and security." It is authorized to deploy military forces to confront threats to international peace and security. If deliberative efforts and peaceful remedies do not work to solve the problem, the Security Council should use extra powers under Chapter VII. In instances when a threat involves the use of weapons of mass destruction, the Security Council may allow the preemptive use of force towards the same end (Taft).

Other States proposed initiatives other than the use of force (Taft 2005). One was avoiding humanitarian intervention doctrine as an extension of the humanitarian law. This option could be resorted to in the absence of an authorization by the Security Council. Other contended that a tight rule should be formed according to the basic aspects of necessity, proportionality and minimal civilian casualty (Taft).

Discussion

Law has always been upheld over the use of force through human civilization (Krieger 2002). The 21st century presents a frightening dilemma of reliance on force and an avoidance of it to take the risk. Law does not prevent all crimes. It sets standards and punitive measures for its violators. But its remedies are insufficient for the most heinous crimes. Nonetheless, inadequate remedies of law are still better than the unrestrained use of force. Injury and death will persist with the use of force. Violators must be brought to justice but the innocent must also be protected from "generalized retribution." As established in the Nuremberg trials, sovereignty is limited. Leaders who commit serious crimes under international law will be accountable to that law. These were crimes against peace and humanity and war crimes. Without international norms or standards, international anarchy could result. The most powerful nations support only legally established norms, which are in turn endorsed by the world community. These norms would prevent disorder and the option to go to war to solve disputes between nations. But recently, the United States walked its own way from international law by disavowing treaties, such as disarmament, and withdrawing support from the International Criminal Court (Krieger).

American foreign policy has always considered international law without focusing on it (Rivkin Jr. And Casey 2000). But several international organizations, human rights groups and States have been trying to alter the traditional law of nations to govern State relationships similar to an international regulatory code. The "new" international law would almost eliminate the use of military force and avoid all civilian casualties in combat. This kind of international law would threaten U.S. national interests (Rivkin and Casey).

Under the American democratic system, civilian leaders are to render the final decision the use of military force (Cook 2002). The President and Congress are chosen by them by popular vote. Senior civilian cabinet officers serve these elected officials. They have the constitutional responsibility to decide if a given problem situation warrants military action as a solution or response. On the other hand, the technical aspects of the use of force reside in professional military officers. But because war is an extension of politics, concepts of operational and engagement rules are often influenced or even controlled by civilian leadership. In practice, military officers play important roles in deciding whether to use military force or not. The decision that a particular set of political circumstances requires a military response is a political decision. The decision, then, rests with the President in consultation with Congress. The military is thus a tool for the political leadership to use in achieving national political goals. Military professionals are, however, necessarily involved. They possess professional training and expertise with which to evaluate the suitability of the means to achieve the politically defined or set goals successfully (Cook).

Taking an ethical perspective on the matter, the decision to employ military force imposes the burden of proof on the decision-maker (Cook 2002). He must be well-aware that even the most careful use of military force will destroy lives and property. A moral condition for the use of force is a reasonable amount of success. This means that applying force would achieve the goal with an equivalent amount of destruction on the target (Cook).

President signed HJ Resolution 114 into law on October 16, 2002. It represented a single voice on the threat to international peace and security by Iraq (Bush 2002). It was also a clear message to the international community, to the UN Security Council and, most importantly, to Iraq, that its days were numbered. It called on Iraq to stop imposing its will on the world, brutalizing its own people and terrorizing neighboring peoples. It must comply with the UN resolutions to dispose of weapons of mass destruction and support for terrorists. If not, it would be compelled to. No social or political force could be greater than a free people with a shared and compelling purpose as this. For this reason, the U.S. would take the option of force against Iraq as a necessary measure. The President reserved the long-standing position and "...constitutional authority to use force to deter, prevent or respond to aggression or other threats to U.S. interests..." The United States stands firm to its commitment to the world so that the people of all nations could live in freedom, peace, and security (Bush).

Lethal force is allowed by international law only when its use is necessary and proportional (Turner 2002). Before it can be taken as a final resort, all non-violent remedies must first be exhausted to protect a nation's rights. Force is not an immediate recourse to resolve traditional political or economic conflicts. It would be justified in the case of Iraq if its current regime indeed presented as a threat to the peace of the United States or other countries. Only Saddam Hussein was denounced by the UN Security Council as the living head of an aggressor State. He was the only head of a State, which clearly used illegal weapons of mass destruction against its enemies or citizens. He had offered and given widespread support for international terrorism. He even pretended to denounce terrorism himself yet he continues to encourage, inspire and support it against Israel up to the present time (Turner).

Article I of the Charter states that the purpose of the UN is "... To maintain international peace and security, to take effective collective measures for the prevention and removal of threats to the peace (Turner 2002)." At the same time, the UN Security Council identified that Saddam was a major threat to that valued international peace and security. Article 2 also stated that "...the use of arms in legitimate self-defense remains admitted and unimpaired." No ground would or should allow Saddam Hussein to toy with weapons of mass destruction in the slightest degree against any freedom-loving State. He has committed violations of Security Council resolutions as to his use of this type of weapons. And Article 25 of the Charter enjoins all members to "... accept and carry out the decisions of the Security Council (Turner)."