Recent (Indecent) Exposures: Impact on International Law of U.S. Policies Toward Iraq and North Korea

Brian J. Foley[1]  

 

One good thing that can be said for international law in a broad sense is that it is working. The U.S. is not at war with Iraq or North Korea, at least of this date.  People are talking, not fighting. They might be blustering and bluffing, they might be making threats, but they are not fighting.

Another good thing that can be said is that a popular viewpoint that international law, in the sense that we know it as the UN Charter, is dead and buried, does not appear to have gripped everybody.  This "dead and buried" view was expressed by Michael Glennon, a professor of international law, in an op-ed in The New York Times last November.[2]  However, President Bush went to the UN on September 12, 2002.  He may have seemed a scold and a bully, but he went nevertheless, after reports that he would not.  Colin Powell spoke to the Security Council twice this month.  He may have produced less than creditable evidence that Iraq poses a serious threat, but he brought evidence nonetheless.  These may have been steps in a dance choreographed long ago for a war that will begin in mid-March, but in law, the dance (process) can be important.

Another good thing that can be said is that people are talking about international law. What I mean by that is, normal people -- people who are not international law scholars, international relations professors or armchair UN Haters -- are discussing international law. They are discussing the Security Council. They see manipulations by nations, such as the U.S. and Turkey, the one offering money, the other demanding still more. I discussed whether France is playing the political coquette, and whether No does really mean Yes, with people in the snack bar of an ice skating rink. 

What this means is that international law has become a headliner act, to use a rock and roll term.  Once a mere opening act, once a nobody, international law appears to be the legitimating agent for a possible U.S. war against Iraq (and perhaps North Korea).  Polls tell us that many people in the U.S. and in other countries will not support a war against Iraq "without a UN mandate."[3]

But becoming a headliner, a star, being exposed under the spotlights, brings scrutiny.  Perhaps the biggest impact on international law is yet to come: ideas for reform.  International law's strengths and weaknesses are being exposed.  The longer the U.S. talks instead of dropping bombs on Iraq, and the longer the U.S. seems to ignore the tiger in North Korea to prepare to torch what many see as a paper tiger in Iraq, the more the weaknesses, inconsistencies, hypocrisies and strengths of international law become evident. 

What could result -- and I am an optimist here -- is an international law that is clearer on when a nation can use force and when it cannot. [4] An international law that looks at the realities of threats of war and war itself. One that deals with, for example, when and who can use force to counter the proliferation of WMD or when or who can use force to prevent terrorist attacks.  An international law where the decision-making of national leaders and of the Security Council is transparent and reflects reason, not power and politics.

This paper will set forth the international law on the use of force and then identify five problematic aspects of this law that have been exposed by the Iraq and North Korea crises, and ways to fix these problems.  I hope this paper will spark many people to consider these ideas, improve them, and come up with more. [5]

 

Background on When a Nation or the UN May Use Force: The Jus ad bellum - Words vs. Action

 

International law on the use of force is at once clear and blurry. Clear, because according to the UN Charter, nations may not use force or the threat of force in their relations with other countries.[6] It is up to the Security Council to decide whether there is a breach or threat of international peace and security, and whether force is warranted to correct it.[7] Individual nations may use force only in self-defense, and then, only if an armed attack has occurred, and only until the Security Council can take over.[8] That is international law on the right to use force, in a nutshell. There are other international laws that deal with the actual conduct of combat operations, but my focus here is on the international law on whether force can be used to address a breach of or threat to international peace and security. This branch of international law is called the "jus ad bellum."  The law concerning the conduct of war is called the "jus in bello" and is set forth mainly in the Geneva Conventions.

Yet what is clear on paper can become blurred, because state practice is regarded as shaping the law. In short, what states do, on this view, if consented to by other states, is legal and becomes law. What states do, then, is more important, according to this view, than what states say -- than what the UN Charter says. A look at state practice reveals a looser restriction on the use of force: there have been more than 100 wars since the UN Charter came into being.[9]  That said, another way to look at state practice is that there have not been any major wars between great powers since the Charter's inception.[10]  In any event, scholars who hold the view that actions speak louder than words are often called "rejectionists."[11]  There are, of course, other schools of thought.  Some other scholars say that any action that contravenes the UN Charter is illegal. These scholars are called "legalists."[12]  It appears that, these days, in the academy, rejectionists outnumber the legalists, at least among U.S. scholars.   So what we have in international law on the use of force is the strange situation where a nation using force in disregard of the UN Charter might not be breaking the law, but making the law.  My view, for whatever it is worth, is that too much is made of state practice, and that at times we should call a spade a spade.  Certain actions that contravene the law do not make new law but are simply illegal.[13] The "consent" by other states, which is seen as turning this law- breaking into law-making, might come not from principle, but because the nation that used force named the right price. (Recent U.S. dealings with Turkey come to mind.)  I will get to that below.  In any event, there are in fact many instances of nations' using force that some scholars deem legal, and others deem illegal. Israel's bombing of Iraq's nuclear reactor at Osiraq is a case in point.  This attack was condemned by the UN Security Council, which rejected Israel's arguments that it was legal, anticipatory self-defense.[14] Some scholars have argued nevertheless that it was legal, self-defense in accord with the UN Charter.[15] Some proponents of relaxing the rules on self-defense have even argued that although the Security Council condemned it, the Security Council did not impose sanctions, so that, therefore, it was not really illegal.[16]  You see how it goes in international law.

One thing for observers to keep in mind is that international law is in a developmental phase. It is new, relative to national legal systems. I am reminded when I read international law scholarship, in its painstaking efforts to decide what the law is by studying what states do ("state practice"), of much of the earlier legal scholarship in this country, which was similarly descriptive. Scholars engaged in huge, painstaking cataloguing  projects such as treatises and Restatements of the Law to attempt to find and set forth the common law, which had developed over time through the practice of courts.  Description, not prescription. Now much of the legal scholarship in this country is prescriptive. Let's fix the errors. Let's propose better, more effective rules. Let's criticize the Supreme Court.  There are concrete proposals for reform in proposed "uniform" or "model" acts created by legal scholars and others on a host of issues: criminal law (Model Penal Code) partnership, commercial law. Many states have adopted these model codes in whole or in part.  This is not to say, of course, that no international law scholars are engaged in normative, or prescriptive, enterprises. For example, law scholars recently, and successfully, helped create and launch the International Criminal Court.  Various crimes, such as "aggression," are in the process of being defined.[17]  

Yet many legal scholars bow to power in that they describe state practice and call it law.  This relationship to power can be explained. First there is the fact that, throughout history, countries have themselves sought a free hand in using force, while trying to restrain other countries.  And people in those nations, and people leading those nations, see their nation as "good" and other nations as "bad."[18]  This goes for international law scholars as well. It does not take too long or too much reading to figure out who the apologists are, for example, for the U.S., and who its detractors are.  This comes from a tendency to think that we can "handle" the decision of whether to use force.  Or that if we owned a gun, we would not use it to murder anybody, but only to defend ourselves. Yet most murders are not premeditated, and a great many of them are likely perpetrated by people with weapons originally bought for self-defense. It is probably human nature to think, "I am a good person, I would only hurt another person if doing so were justified."  That all said, this tendency has been described as "exceptionalism." [19] Needless to say, holding one's own nation above the laws that one believes ought to bind other nations does not strengthen respect for the law.  It undermines it.  Notably, this sort of exceptionalism is the definition of immorality for Kant,[20] who himself proposed a system of international laws based on a federation of states.[21]

Second, I wonder if the blurriness of international law comes from the fact that the jus ad bellum does not appear to comport with reality. For example,  the jus ad bellum as set forth in the UN Charter absolutely restricts nations from using force, except in self-defense. Yet to preclude states from using force may seem strange.  As friend of mine illustrated this sense to me recently when he remarked, "But Foley, war is what countries do!"  Many thinkers have argued that states could not exist without war, that war is a centralizing feature of states.  As long as we have sovereignty, we will have war, the logic goes.

Similarly, the jus ad bellum does not address the realities of war itself.  For example, a state might have the "right" in some sense to use force in self defense, but should any state really have the right to kill and maim civilians -- women, children, elderly, men -- and the conscripted youth of another state?  To uproot others and cast them out as refugees? To cause pollution that spreads to other nations? To risk that the conflict could widen to engulf other countries, or even explode into nuclear war? None of these realities is considered directly in the decision of whether a nation has the right to use force in self-defense, or whether the Security Council may use force or allow a nation or coalition of nations to use force.

Here are some examples of recent weaknesses and problems in the international law on the use of force that have been exposed, and some thoughts on reform:

 

Recent Exposure 1: Disparate Treatment

 

One thing that has been exposed is disparate treatment by the UN of the threats posed by possession of WMD. The Security Council is not massing troops around North Korea, but it is massing troops (or letting Member Nations mass troops) around Iraq. North Korea claims to have nuclear weapons and is threatening to use them. Iraq claims not to have nuclear weapons and is not threatening to use them, or any other WMD.  Yet the UN is considering "regime change" in Iraq, not in North Korea.

The message is that arming oneself with nuclear weapons is a way to be above the law.  Note that the UN does not seek to disarm the U.S., UK, France, Russia, China, India, Pakistan or Israel.  The former five nations are the Permanent Members of the Security Council, with veto power.  Small countries that do not want to be attacked might give up their dreams of possessing WMD. But then the U.S. would know that it could attack them without fear of WMD retaliation if the U.S. decided that the country "supports terrorism."

So the best bet would be to get WMD.

Good laws build proper incentives.  An example of this is the Nuclear Non-Proliferation Treaty.  Nations agreed not to develop nuclear weapons, and nations that already had nuclear weapons agreed to disarm, creating a level playing field. This made sense, given that many nations sought to develop nuclear weapons to create a more level playing field.[22]

That this legally sanctioned disparate treatment of Iraq and North Korea is creating incentives that will make our world a more dangerous place instead of a safer place is not lost on people observing the effectiveness, or not, of international law.  It is a result of the Security Council's "selectiveness" and lack of legal duty to act in every case.[23]  A possible reform is for the Security Council to address all threats of force and determine what ought or ought not to be done, and why, instead of waiting for an individual country to draft a proposed resolution for military action in its own national interest.

 

Recent Exposure 2: "Send lawyers guns and money …":  Money, Power and Politics

 

If we knew, say, that a criminal defendant were buying off members of the jury, or padding a judge's retirement account, we would be outraged. We now see the U.S. paying other nations to vote for a war against Iraq.  Some of these nations, far from being outraged, are holding out for more cash.[24]  This does not cohere with our idea of "law" in any sense. Of course, one of the first things one learns in studying international law is that it is not really law at all.  It is an amalgam of power, politics, rules, custom, and claims of legality and of right.[25]  Why do the U.S., Russia, China. France and Britain have permanent seats, and veto power, on the Security Council?  Because they won World War II. Why not Germany, a very powerful nation? Because Germany lost World War II.  Why not India and Pakistan -- they have nuclear weapons, and India has one of the largest populations in the world? Calls for reshuffling the constituents of the Security Council and ending the veto will likely become louder now that publics see the inequities.[26]

As for buying votes, a look at two resolutions paints the picture. For Resolution 678 in 1990,[27] which empowered a coalition of the willing to use force to eject Iraqi troops from Kuwait, the following occurred in the Security Council:

 

To win reliable Soviet support, the United States, according to news accounts, agreed to help keep Estonia, Latvia, and Lithuania out of the November 1990 Paris summit conference …to secure a "voluntary" Chinese abstention in lieu of a threatened Chinese veto, the United States, disregarding a then-crackdown on political dissidents, consented to lift trade sanctions in place since the Tiananmen Square massacre of pro-democracy protesters … and the resumption of normal diplomatic intercourse between the two countries.  Not to be overlooked either is the "reward" reportedly communicated to Yemen as a result of its opposition and negative vote: a cutoff of Washington's $70 million in annual aid.[28]

 

For Resolution 1441, passed on November 8, 2002 and which set up the increased inspections regime in Iraq, similar behind-the-scenes negotiations and wheeling dealing most likely occurred. More importantly, perhaps, for this paper, is that such was the appearance.   For example, according to an article in Dawn, the largest English-language daily newspaper in Pakistan, an Asian diplomat said of the 15-0 resolution, "Only a superpower like the United States could have pulled off a coup like this."[29]  The article detailed how the 10 non-permanent members of the Security Council -- Cameroon, Guinea, Mauritius, Bulgaria, Colombia, Mexico, Singapore, Norway, Ireland and Syria -- "voted under heavy diplomatic and economic pressure from the United States."[30]  The UN ambassador from Mauritius "was temporarily recalled by his government because he continued to convey the mistaken impression that his country had reservations about" the proposed [31] resolution.  The article reveals that Mauritius receives U.S. aid, on the condition that the country "does not engage in activities contrary to the U.S. national security or foreign policy interests."[32]  It also reveals that all of the non-permanent members except for Syria receive either aid or arms from the U.S.[33]  Since the passage of Resolution  1441, U.S. pressure on other nations to support a new Resolution that would enable it to use force against Iraq has continued, on the new non-permanent members of the Security Council (membership rotates every two years).  For example, a diplomat from Mexico, a country that has been resisting U.S. pressure, said of U.S. officials, "They actually told us: 'Any country that doesn't go along with us will be paying a very heavy price.'"[34] Such pressure is not reserved for small nations alone: since the passage of the Resolution 1441, the U.S. has threatened various economic reprisals against current Security Council non-permanent Member Germany, for its opposition to a war on Iraq.[35]

Finally, less than a week after I presented this paper, it was reported that the U.S. National Security Agency has been tapping the telephones and reading the emails of representatives from Security Council member nations in New York, as a way, according to the memo leaked to the British newspaper The Observer, "to give US policymakers an edge in obtaining results favorable to US goals or to head off surprises."[36] 

So it is now public knowledge that the U.S. sends lawyers to the UN, and guns and money to its members, to gain votes to use force and violence to keep the peace, to counter the purported proliferation of weapons of mass destruction.  Any resulting use of force against Iraq will be, at best, legally suspect.  Scholars recognize that it is possible for the Security Council to act beyond its powers and thus break the rules in the UN Charter.[37]  An interesting legal question that might arise in such circumstances is whether national leaders could be tried in the International Criminal Court for waging a war of aggression. 

Possible reforms would be to change the Permanent Members of the Security Council, end the veto power and go to a simple majority rule; prohibit lobbying and buying of votes; require written reasoning of why a particular, proposed use of force is warranted or not.  In addition, as mentioned above, the Security Council should have to determine the legality of any use of force by any nation, instead of choosing selectively, which smacks of a selective application of the law for certain, preferred nations.

 

Recent Exposure 3: Dueling Interpretations of International Law and Security Council Resolutions

 

Also perplexing are the differing interpretations that nations give to the same Security Council resolutions. Resolution 1441 is a good example.  After the Resolution was unanimously passed on November 8, the U.S. claimed that it authorized the use of force, and other nations claimed it did not.[38] It was clear to most people that the U.S. had lost its bid for "automaticity," that is, that any breach would allow for the automatic use of force against Iraq, and that the U.S. would be the nation to dole out the beating.

Similarly, the U.S. still claimed that it had the right to use force in self-defense against Iraq, regardless of UNSCR 1441.  It seemed, however, that the matter was, at that point, in the capable hands of the Security Council. In fact, at the end of the Resolution, the Security Council declared that it "remained seized of the matter."[39]

The proposal for a new resolution, offered by the U.S. and Great Britain on February 24, to declare that Iraq is in breach of Resolution 1441 and thus, presumably, to allow the U.S. and Great Britain to use force against Iraq, adds to the problem of dueling interpretations . Why is this proposed resolution necessary when Resolution 1441 states that, in the event of a breach by Iraq, the Security Council will reconvene immediately to consider "serious consequences" against Iraq?[40] 

The problem, of course, is that there is no ultimate authority to interpret the UN Charter or Security Council resolutions.  If nations can interpret Security Council resolutions as they see fit, then it is not "law" at all. There have been proposals in the past to give the International Court of Justice (ICJ), the judicial organ of the UN, explicit powers of what we know in the U.S. as judicial review. [41] That is, that the ICJ be the final word as far as interpretation goes. Clearly, something like this is needed.[42]

 

Recent Exposure 4: Lack of Openness and Lack of Transparency in UNSC Decision-making

 

There should be openness in the Security Council, so that the world can see how the Security Council thinks, how it weighs options, how it makes decisions.  War is seen as a last resort in the UN Charter, as the progression of Chapter VII shows: identify a threat, use economic sanctions, blockades, demonstrations, then force.[43] Yet how are people to be assured that other options were actually considered?  What were these options? Why were they deemed to be less effective than war?

One solution for this problem is to "judicialize"[44] the Security Council, to require it to behave more like a court than like an executive branch of government.  It should be required to answer particular questions about a proposed use of force, and in writing.  Why is force necessary to achieve the particular goal? The Security Council should have to produce an account to support that all other options had been explored-- what are the options, and why did they fail or would they fail, and with whom did the Security Council consult to come up with options?[45]

 

Recent Exposure 5: Mind the Gap: Separation of the Jus ad bellum from the Jus in bello

 

The international law on the use of force breaks into two main categories: the jus ad bellum, or the law on when a nation or the UN may use force, and the jus in bello, the law on how a nation or the UN may use force, that is, how it may conduct a war (set forth in, for example, the Geneva Conventions).  There is a dangerous gap, however, between a decision to use force and the actual use of force. For example, the very decision to use force can cause serious harms that may be greater than the on-the-ground decision of whether to destroy a particular target or how far to go in interrogating a prisoner. Two quick examples, from the U.S. war against Afghanistan: where Afghani civilians, sensing war, fled to the mountains as refugees, and where U.S. officials made deals with various nations for fly-over and basing rights, which could have resulted in those nations' leaders' cracking down on internal dissent, at the expense of human rights.

More to the point, military strategy and tactics are often decided before a decision has been reached as to whether a use of force is warranted and therefore legal. A good example of this is regarding Iraq.  The U.S. has announced a strategy of "Shock and Awe," which will, we are told, hurl 3,000 bombs and cruise missiles into Iraq in the first two days of war.[46]  As one Pentagon official said, "There will not be a safe place in Baghdad."[47]  Also, a UN report that was apparently leaked to the press estimates that 500,000 Iraqi civilians could be killed or injured as a direct result of a U.S. war on Iraq.[48]

Baghdad is a civilian city, not exclusively a military target.  The jus in bello has something to say about that: indiscriminate attacks on civilian targets are illegal. If there will be "not be a safe place in Baghdad," then this is an illegal attack.  Yet what is the Security Council saying about this strategy?  Recent history indicates that it will say nothing, before or after. For example, Resolution 687, which authorized Member Nations to use "all necessary means" to eject Iraqi troops from Kuwait in 1991, put no limits on the use of force. It is unclear whether the Security Council even knew of the coalition's plans to target civilian water purification plants and the electrical grid in Iraq, an attack on Iraqi civilians that violated the humanitarian laws of war.[49] It is unclear whether the Security Council was aware of the likely civilian casualties. Planners believed that 2,000 would perish, [50] but by at least one count, 35,000 civilians were actually killed.[51] In any event, in the aftermath of the war, the Security Council was silent about this devastation, devastation that was arguably not "necessary" to carry out the Resolution to eject Iraqi troops from Kuwait.

There are other harms as well that would most likely result from a use of force against Iraq this time around, but it appears that they will not be addressed explicitly in any Security Council decision of whether the U.S. can use force.  A possible reform would be for the Security Council to look at these as part of its decisionmaking, and, moreover, to address ways that these harms can be limited.  Here are some questions that decisionmakers should be required to ask in determining whether force can be used legally -- these are harms that result immediately from the decision to use force, that fall within the gap between the jus ad bellum and the jus in bello:

 

What would be the likely civilian casualties, and can they be limited?

 

What would be the likely military casualties on both sides, and can they be limited?  This criterion should recognize that combatants are often conscripts.  Would there be a meaningful chance for them to surrender before any opening salvos?

 

Weaponry: What would be the short term and long term medical effects of the weapons that are being used?  Would weapons remain in the conflict theater long after hostilities end, such as cluster bombs and land mines and depleted uranium?

 

“Conflict contagion”[52]: What is the likelihood of this proposed conflict’s escalating? Of exacerbating existing conflicts or sparking new ones?

 

Human rights: Would the use of force have a negative effect on human rights of people in combatant nations?  Is there likely to be repression by the combatant governments (as part of the government's support, e.g., for a U.S. invasion of Iraq)? Would the human rights of citizens of other, non-combatant nations be in danger?

 

Human rights: Would the conflict touch off humanitarian crises such as refugees and starvation?  Would the destruction of military or “dual use” civilian/military targets (such as electrical grids and water treatment plants) also affect the lives of civilians?

 

Economics: How might the conflict affect the economies of various nations, and of the world?  What would be the effect to world markets, such as stock markets or oil?

 

International peace and security: Would the government of the targeted nation be changed as a result of the use of force against it?  What kind of government would replace it?  What would be the resulting effects on international peace and security (and human rights)?

 

International peace and security -- rebuilding conflict zones. What types of weaponry would be used?  Would dangers persist for civilians after the war? Would important infrastructure be targeted?  Would there be a rebuilding plan? Would the war result in chaos, creating humanitarian disasters or an environment conducive, for example, to terrorism?

 

Development and respect for international law: What precedent would the use of force in this case yield?

 

Balancing of harms: How would these harms be balanced against the goal that the use of force would mean to achieve?

 

These concerns are not addressed formally. If they are addressed at all, they are addressed in an ad hoc fashion, by individual governments, the UN, and NGOs such as the Red Cross, Amnesty International, Doctors Without Borders, and others.

There has been call for reform in this area, and the recent exposures could cause those calls to be renewed, and more loudly.  As Professor Judith Gardam has said, “It is becoming increasingly apparent … that to rely on the [j]us in bello [law governing conduct in war] to provide real protection to the civilian populations in times of armed conflict is [the result of] a failure to acknowledge the far greater potential of the [j]us ad bellum [law governing right to use force at all] to achieve this goal.”[53] The limited, late-arriving protections of the jus in bello call to mind the cliché about trying to close the barn door after the horse has escaped.

A dynamic, of course, can come into play: by being forced to consider in advance the likely harms, or costs, associated with the use of force, and to make these considerations public, the use of force might emerge as less and less attractive. There would be an increased pressure on leaders to avoid these costs, and, ultimately, to avoid the use of force.[54]

 

Attitude is Everything

 

Regardless of whether the U.S. attacks Iraq, or North Korea, or if those countries attack us, weaknesses and inconsistencies in international law have been exposed. International law is in a developmental stage. We must keep that in mind.  As a lawyer and law professor, I can say that our domestic legal system, for the most part, makes sense. Where it doesn't, there are plenty of scholars and lawyers and activists suggesting reforms.  International law scholars need to adopt this attitude of reform. There is a sense among international law scholars that the law is what it is, and that's that.  They work hard to do long, descriptive studies of state practice to determine what the law "is."  Insufficient attention is paid to what the international law ought to be. It is as if scholars have decided that the powerful of the world will do what they will, and it is up to scholars to serve as either their apologists or scolds.[55]

I think that is giving in too much to power. Whatever happens regarding Iraq and North Korea, recent events have established that the international law, although still young, is gaining increased authority.  It is not surprising that scholars are slow to recognize this, as scholarship is an intellectually conservative discipline.  It is also being established that the law needs to change. National leaders -- caught between Iraq and a hard place -- the UN, the U.S., their allies and their publics over the U.S. desire for a war against Iraq -- might themselves seek clarifications: another go-round like this, over, say, Iran, might strain the world's patience beyond the breaking point.[56]  It is thus time to adopt a more normative and creative attitude in international law -- scholars and practitioners and diplomats and activists alike -- to shape the jus ad bellum to be clear and sensical, to earn the respect of and adherence by national leaders, and, most importantly, to protect against the harms of war. 

 

 



[1] The author wishes to thank Physicians for Social Responsibility and the Center for Defense Information for the opportunity to present this paper at their conference, U.S. Nuclear Policy and Counterproliferation, February 26, 2003, in Washington, D.C.  The author also thanks M.G. Piety for reviewing and commenting on drafts of this article.

 

[2] See Michael J. Glennon, "How War Left the Law Behind," New York Times, November 21, 2002 (http://www.nytimes.com/2002/11/21/opinion/21GLEN.html).  For a fuller explanation of this view, see, by the same author, "The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter," Harvard Journal of Law and Public Policy, vol. 25 (2002), p. 39.

 

[3] See, e.g., Associated Press, "Poll: Public Wants UN Backing Iraq Action," February 24, 2003 (available at http://seattlepi.nwsource.com/national/apus_story.asp?category=1110&slug=UN%20Iraq%20Poll)

 

[4] The pessimistic view is that a  war against Iraq could cause the dismantling of international law on the use of force, that it will set a precedent that the US and other nations will follow, perhaps to the extinction of our species.  My sense is that at least some human beings will continue the grand project of seeking ways to limit nations' recourse to force, and my experience is that human beings constantly create rules where there are vacuums.  The point of my paper is not to make a prediction but to show the weaknesses that have been exposed and suggest some ways to fix them.

 

[5] A good, recent example of a criticism of the Security Council that starts to suggest reforms is Richard Tanter, "Against a Security Council War in Iraq, Z Net, Jan. 30, 2003 (http://www.zmag.org/content/showarticle.cfm?SectionID=51&ItemID=2930)

 

[6] UN Charter, Article 2  (http://www.un.org/aboutun/charter/).

 

[7] See UN Charter, Chapter VII (http://www.un.org/aboutun/charter/).

 

[8] UN Charter, Article 51 (http://www.un.org/aboutun/charter/).

[9] Michael J. Glennon, "How War Left the Law Behind," New York Times, November 21, 2002 (http://www.nytimes.com/2002/11/21/opinion/21GLEN.html). 

 

[10] Peter Malanczuk, Akehurst's Modern Introduction to International Law, p. 341 (7th Rev. ed. 1997).

 

[11] Anthony Clark Arend, "International Law and the Recourse to Force: A Shift in Paradigms," Stanford Journal of International Law, vol. 27 (1990), pp. 18-28.

 

[12] Ibid.

[13] For a statement of this view, see Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States) (1986), available at http://www.icj-cij.org/icjwww/Icases/iNus/inus_ijudgment/inus_ijudgment_19860627.pdf

 

[14] UNSCR 487 (June 19, 1981) (http://ods-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/418/74/IMG/NR041874.pdf?OpenElement). Text of statements made to the Security Council can be found at "United Nations: Consideration Of The Military Attack On The Iraqi Nuclear Research Center And IAEA Safeguards Regime," International Legal Materials, vol. 20 (1981), pp. 963-997.

 

[15] See, e.g., Anthony D'Amato, "Israel's Air Strike Against the Osiraq Reactor: A Retrospective,"

Temple International and Comparative Law Journal, vol. 10 (1996), p. 260.

 

[16] Ibid, p. 262 ("Any informed observer looking at the action of the Security Council would have been justified in calling it a gentle pat on the wrist. In actual effect, though not in wording, the resolution can only be seen as covert support for Israel's air strike. My guess is that the international community, via the resolution, was breathing a collective sigh of relief.").  See also David B. Rivkin, Jr., Lee A. Casey, and Darin R. Bartam, "Remember the Caroline," National Review, July 1, 2002, p. 18.

 

[17] See Roger S. Clark, "Rethinking Aggression as a Crime and Formulating Its Elements: The Final Work-Product of the Preparatory Commission for the International Criminal Court," Draft, August 31, 2002 (on file with author).

 

[18] This is especially the case during war and the run-up to war. See Chris Hedges, War is a Force that Gives Us Meaning (New York: Public Affairs, 2002).

 

[19] Johann D. van der Vyver, "American Exceptionalism: Human Rights, International Criminal Justice, and National Self-Righteousness," Emory Law Journal, vol. 50 (2001), p. 775.

 

[20] See Immaneul Kant, The Foundation of the Metaphysics of Morals, trans. Lewis White Beck (Upper Saddle River, NJ: Prentice Hall, Inc., 1997).

 

[21] See Immaneul Kant, "Perpetual Peace: A Philosophical Sketch," available at http://www.fredsakademiet.dk/library/perpeace.htm

[22] Professor Michael Byers notes that the Bush Administration acts as if it believes possible proliferation of nuclear weapons is a new problem, and preemptive military strikes are the sole possible solution. Michael Byers, "Jumping the Gun," The London Review of Books, July 25, 2002 (http://www.lrb.co.uk/v24/n14/byer01_.html).

 

[23] Malanczuk, op cit., p. 427.

 

[24] See "Coalition of the $$$ Willing," Hartford Courant, February 20, 2003 (http://www.ctnow.com/news/opinion/editorials/hc-turkey.artfeb20.story).

 

[25] Of course many legal theorists would argue that such is the case with domestic legal systems. It is, but it seems to be evident to much less of a degree; the scale and stakes seem so much smaller.

 

[26] Malanczuk, op. cit., pp. 376-377.

 

[27] UNSC Res. 678 (Nov. 29, 1990) (http://ods-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/575/28/IMG/NR057528.pdf?OpenElement )

 

[28] Burns H. Weston, "Security Council Resolution 678 and Persian Gulf Decision-Making: Precarious Legitimacy,"  American Journal of International Law,  vol. 85 (1991), pp. 23-4. 

 

[29] Thalif Deen, "Dollars Yielded Unanimous Vote: Resolution Against Iraq," Dawn (Pakistan), November 11, 2002 (http://www.dawn.com/2002/11/11/int11.htm)

 

[30] Ibid.

 

[31] Ibid.

 

[32] Ibid.

 

[33] Ibid.  It should go without saying that this news story's appearance in Pakistan is a cause for concern, as it could breed resentment toward the US. Pakistan's government is vulnerable to overthrow from Muslim extremists sympathetic to the Taliban and possibly Al Qaeda. 

 

[34] Dafna Linzer, "A Threat on Eve of U.N. Vote," Associated Press, February 24, 2003 (www.cleveland.com/news/plaindealer/index.ssf?/base/news/1046082980120931.xml)

 

[35] "US Cranks Up Economic Pressure on Germany," Yahoo! News - Singapore, February 8, 2003 (http://sg.news.yahoo.com/030208/1/375mq.html).

 

[36] Martin Bright, Ed Vulliamy, and Peter Beaumont, "Revealed: US Dirty Tricks to Win Vote on Iraq War," The Observer (UK), March 2, 2003 (http://www.observer.co.uk/Print/0,3858,4616550,00.html) (the article contains a link to the secret memorandum: http://www.observer.co.uk/iraq/story/0,12239,905954,00.html).

 

[37] Malanczuk, op. cit., p. 426.

 

[38] See, e.g.,  Andrew Woodcock, "Divisions Emerge Over UN Authorization for War," The Scotsman, Nov. 9, 2002;  Suzanne Goldenberg, "US Will Attack Without Approval," The Guardian, Nov. 11., 2002; Ian Urbina, "UN Resolution: Dangerous Ambiguity," Asia Times, Nov. 12, 2002; "Russian Warns US Over 'Illegal' Strikes on Iraq," Tehran Times, Nov. 14, 2002.   These articles are all available on the website for the Campaign  Against the Sanctions on Iraq at http://www.casi.org.uk/discuss/2002/msg02074.html

 

[39] UNSC Res. 1441, Paragraph 14 (Nov. 8, 2002) (http://ods-dds-ny.un.org/doc/UNDOC/GEN/N02/682/26/PDF/N0268226.pdf?OpenElement)

 

[40] Ibid., Paragraph 12.

 

[41] Richard Tanter, op. cit.

 

[42] The Campaign for Nuclear Disarmament, a UK group,  sued the British government in British courts to interpret Resolution 1441 as not permitting the UK (or other nations) to use force against Iraq.  A British court rejected the suit on December 17, 2002, reasoning that interpreting a Security Council resolution fell outside of the court's powers. See "CND Loses Legal Fight Against Iraq War," BBC News, December 17, 2002 (http://news.bbc.co.uk/1/hi/uk_politics/2583207.stm)

 

[43] Article 41 states that, in dealing with threats to peace and security,

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures.  These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. 

 

The following Article, 42, states,

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea or land forces of Members of the United Nations.

 

[44] I am grateful to Kevin Boyle for using this term in describing these ideas of mine at The International Symposium on Terrorism and Human Rights in Cairo, Egypt, January 26-28, 2002.

 

[45] For a deeper discussion on how to enhance this search for options, see Brian J. Foley, "Avoiding War: Using International Law to Compel a Problem-Solving Approach," The Transnational Foundation for Peace and Future Research, Feature Article, November 5, 2002 (www.transnational.org/features/2002/Foley_AvoidingWar.htm) (reprinted from Proceedings of the International Symposium on Terrorism and Human Rights, Cairo, Egypt, Jan. 26-28, 2002, sponsored by the Cairo Institute for Human Rights Studies).

 

[46] Charles Aldinger, "3,000 U.S. Bombs, Missiles Would Quickly Hit Iraq," Reuters, February 2, 2003 (http://story.news.yahoo.com/news?tmpl=story2&cid=564&ncid=564&e=7&u=/nm/20030202/ts_nm/iraq_usa_plan_dc_4). 

 

[47]"Iraq Faces Massive U.S. Missile Barrage," CBSNEWS.com, January 24, 2003 (http://www.cbsnews.com/stories/2003/01/24/eveningnews/main537928.shtml) (quoting Pentagon official).

[48] "UN Prepares for Huge Iraqi Casualties," BBC News, January 7, 2003 (http://news.bbc.co.uk/1/hi/world/middle_east/2636835.stm)

 

[49] See John Quigley, "The United States and the United Nations in the Persian Gulf War: New Order or Disorder?" Cornell International Law Journal, vol. 25 (1992), p. 19, footnote 112 (arguing that these attacks violated Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, which prohibits "an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated").

 

[50] Ibid. (citing Bob Woodward, The Commanders  (New York: Simon and Schuster, 1991), p. 341).

 

[51] The number of Iraqi civilians killed in the Gulf War is notoriously hard to pin down.  According to Greenpeace, estimates of the number of civilians killed ranged from 5,000 - 15,000 during the war, and 4,000 - 6,000 afterward, from lack of medical care for wounds or malnutrition.  George Lopez, "The Gulf War: Not so Clean," Bulletin Of The Atomic Scientists (September, 1991).  CNN.com, in its "Gulf War Facts," notes without comment that "Baghdad reported that 35,000 civilians were killed.” See http://www.cnn.com/SPECIALS/2001/gulf.war/facts/gulfwar/

 

[52] See Carl Conetta, "Operation Enduring Freedom: Why a Higher Rate of Civilian Bombing Casualties?" Cambridge, MA: Commonwealth Institute, Project on Defense Alternatives Briefing Report #11, 18 January 2002 (revised 24 January 2002). http://www.comw.org./pda/0201oef.html.

[53] Judith G. Gardam, "Legal Restraints on Security Council Military Enforcement Action," Michigan Journal of International Law, vol. 17 (1996), p. 301 (citing Judith G. Gardam, "Noncombatant Immunity and the Gulf Conflict," Virginia Journal of International Law, vol. 32  (1992), p. 813).

 

[54] Indeed, a national law to require US leaders to consider these costs could be proposed.

 

[55] See Richard Falk, "Kosovo, World Order, and the Future of International Law," American Journal of International Law, vol. 93 (1999), p. 852  (noting that this power dynamic could, in some instances involving the use of force, reduce international lawyers'  "vocational fate to the demeaning roles of 'apologist' or 'utopian.'").

 

[56] See Stephen Shalom, "Warmongers' Last Hope," Z Net, February 22, 2003 (http://www.zmag.org/content/showarticle.cfm?SectionID=15&ItemID=3105) (detailing foreign leaders' travails as a result of their publics' outcry against U.S. proposed war on Iraq).  Also, as any lawyer knows, sometimes it can be a relief to go back to an unruly client and say, "Sorry, the judge ruled that we can't do this."