International Law and the Use of Force: Rights vs. Power

Introduction: Force, Law, and September 11

When the United States decided, after careful deliberation, to use force in self-defense following the events of September 11, 2001, it did so according to fundamental principles of international law permitting such action (Taft, 2005). That right included the pre-emptive use of force in self-defense. This position was embodied and affirmed in President George W. Bush's National Security Strategy of September 2002. It was not a new concept in international law or in U.S. history. Rather, it proceeded as a natural adaptation of the concept of "imminence" to the current era of weapons of mass destruction (Taft, 2005).

The United States insists that it has fought its enemies according to the tenets of international law (Taft, 2005). This has been its consistent position from the start, and particularly after September 11, 2001. The U.S. stands committed to fighting terrorism according to the rules of international law and is aligned with the UN Security Council in recognizing the right to self-defense against terrorist activities, including the pre-emptive use of force in well-established and appropriate circumstances.

The UN Charter limits the use of force to self-defense and the resolution of international disputes, yet simultaneously recognizes the "inherent right" of states to use 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 plays a vital role in addressing threats to international peace, but it has no capability to prevent or stop the rightful use of force in self-defense. It therefore rests with individual states to defend themselves from attackers (Taft, 2005).

Law has always been upheld over the use of force throughout human civilization (Krieger, 2002). The twenty-first century presents a troubling dilemma: reliance on force carries grave risks, yet law alone cannot prevent the most heinous crimes. Even so, the inadequate remedies of law are still preferable to the unrestrained use of force. Injury and death inevitably follow the use of force. Violators of international norms 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, including crimes against peace, crimes against humanity, and war crimes, are accountable to that law. Without international norms or standards, international anarchy could result. The most powerful nations support only legally established norms endorsed by the world community, norms that would prevent disorder and reduce the resort to war. Yet in recent years the United States has walked away from aspects of international law by disavowing certain treaties, including disarmament agreements, and withdrawing its support from the International Criminal Court (Krieger, 2002).

American foreign policy has historically engaged with international law without making it the central focus (Rivkin & Casey, 2000). However, several international organizations, human rights groups, and states have attempted to transform the traditional law of nations into something resembling an international regulatory code governing state relations. This "new" international law would virtually eliminate the use of military force and seek to avoid all civilian casualties in combat — an approach that, its critics argue, would threaten U.S. national interests (Rivkin & Casey, 2000).

The Right to Pre-Emptive Self-Defense

President Bush reaffirmed a state's right to use force before an actual attack occurs when an attack is "imminent" and all peaceful remedies have been exhausted (Taft, 2005). He elaborated on this concept of imminence in his National Security Strategy, arguing that the right of self-defense would be rendered meaningless if a state could not act to prevent aggressive strikes 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 authorizes the deployment of military forces to confront threats to international peace and security. Where deliberative efforts and peaceful remedies fail to resolve the problem, the Security Council may invoke its enhanced powers under Chapter VII. In instances where a threat involves the use of weapons of mass destruction, the Security Council may authorize the pre-emptive use of force to the same end (Taft, 2005).

Other states have proposed alternatives to the use of force (Taft, 2005). One such alternative involves invoking the humanitarian intervention doctrine as an extension of humanitarian law — an option available even in the absence of explicit Security Council authorization. Others have argued for the formation of a strict rule grounded in the basic principles of necessity, proportionality, and minimal civilian casualties (Taft, 2005).

Lethal force is permitted under international law only when its use is necessary and proportional (Turner, 2002). Before it can be employed as a last resort, all non-violent remedies must first be exhausted to protect a nation's rights. Force is not an appropriate immediate recourse for resolving traditional political or economic conflicts. It would be justified in the case of Iraq, however, if that regime presented a genuine threat to the peace of the United States or other countries. Saddam Hussein was the only sitting head of state denounced by the UN Security Council as the leader of an aggressor state — one that had clearly used illegal weapons of mass destruction against both its enemies and its own citizens, and that had offered widespread support for international terrorism (Turner, 2002).

Civilian Authority, Military Ethics, and the Decision to Use Force

Under the American democratic system, civilian leaders bear ultimate responsibility for decisions regarding the use of military force (Cook, 2002). The President and Congress are chosen by popular vote, and senior civilian cabinet officers serve these elected officials, who carry the constitutional responsibility to determine whether a given situation warrants military action. The technical aspects of how force is applied, however, rest with professional military officers. Because war is an extension of politics, operational concepts and rules of engagement are often shaped or even controlled by civilian leadership. In practice, military officers play important roles in advising whether to use force, but the decision that a particular set of political circumstances requires a military response remains fundamentally a political one — resting with the President in consultation with Congress. The military serves as a tool for political leadership in achieving national goals. Military professionals are, nonetheless, necessarily involved, as they possess the training and expertise required to evaluate whether the means available are suitable to achieve the defined political objectives (Cook, 2002).

Taking an ethical perspective, the decision to employ military force imposes a significant burden of proof on the decision-maker (Cook, 2002). The decision-maker must be fully aware that even the most carefully conducted use of military force will destroy lives and property. A moral precondition for the use of force is a reasonable prospect of success — meaning that the application of force would achieve its goal without causing disproportionate destruction (Cook, 2002).

Conclusion: International Law in a Dangerous World

International law is mandated to keep the world at peace and to protect the existence and peaceful co-existence of nations. But things changed fundamentally after September 11, 2001, when the peace and political leadership of the United States were threatened. The U.S. took radical steps toward what it perceived as its right as a member of the international community and as a leader of nations now facing imminent threats from terrorism. Because of its capacity to bring the entire world to the brink, the UN and other world leaders have continued to attempt to restrain the U.S. from using force against its perceived attackers. Whether they can ultimately succeed is another matter. Other leaders can deploy diplomatic skills, and the rest of mankind can only hope that the world survives this ultimate test of international law and order.

References

Bush, G. W. (2002). Statement on signing the authorization for use of military force against Iraq resolution of 2002. Weekly Compilation of Presidential Documents. U.S. Government Printing Office.

Cook, M. L. (2002). The proper role of professional military advice in contemporary uses of force. Parameters. U.S. Army War College.

Krieger, D. (2002). Law vs. force. Humanist. American Humanist Association.

Rivkin, D. B., Jr., & Casey, L. A. (2000). The rocky shoals of international law. The National Interest. National Affairs, Inc.

Taft, W. H., IV. (2005). International law and the use of force. Georgetown Journal of International Law. Georgetown University Law Center.

Turner, R. F. (2002). Military action against Iraq is justified. Naval War College Review. U.S. Naval War College.

Waugh, P. (2002). Iraq — the threat of war: armed force illegal. The Independent. Independent Newspapers UK Limited.