(Indecent) Exposures: Impact on International Law of U.S. Policies Toward Iraq
and North Korea
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.
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
York Times last November.
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
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.
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."
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
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.
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.
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. 
on When a Nation or the UN May Use Force: The
Jus ad bellum - Words vs. Action
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.
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
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.
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.
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
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.
In any event, scholars who hold the view that actions speak louder than
words are often called "rejectionists."
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."
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
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.
Some scholars have argued nevertheless that it was legal, self-defense in
accord with the UN Charter.
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.
You see how it goes in international law.
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.
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."
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."
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,
who himself proposed a system of international laws based on a federation of
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,
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.
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.
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:
Exposure 1: Disparate Treatment
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.
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
the best bet would be to get WMD.
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.
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.
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.
Exposure 2: "Send lawyers guns and money …":
Money, Power and Politics
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
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
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.
for buying votes, a look at two resolutions paints the picture. For Resolution
678 in 1990,
which empowered a coalition of the willing to use force to eject Iraqi troops
from Kuwait, the following occurred in the Security Council:
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.
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."
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."
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 
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
It also reveals that all of the non-permanent members except for Syria
receive either aid or arms from the U.S.
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
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.
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."
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.
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.
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.
Exposure 3: Dueling Interpretations of International Law and Security Council
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
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.
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."
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?
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.
That is, that the ICJ be the final word as far as interpretation goes.
Clearly, something like this is needed.
Exposure 4: Lack of Openness and Lack of Transparency in UNSC Decision-making
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.
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
solution for this problem is to "judicialize"
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?
Exposure 5: Mind the Gap: Separation of the Jus
ad bellum from the Jus
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.
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.
As one Pentagon official said, "There will not be a safe place in
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.
is a civilian city, not exclusively a military target.
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.
It is unclear whether the Security Council was aware of the likely civilian
casualties. Planners believed that 2,000 would perish,
but by at least one count, 35,000 civilians were actually killed.
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
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
would be the likely civilian casualties, and can they be limited?
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
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?
What is the likelihood of this proposed conflict’s escalating? Of
exacerbating existing conflicts or sparking new ones?
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?
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?
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?
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)?
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
and respect for international law: What precedent would the use of force in
this case yield?
of harms: How would these harms be balanced against the goal that the use of
force would mean to achieve?
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
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
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.
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.
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
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.
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.
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.
 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.
 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.
 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)
 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.
 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)
 UN Charter, Article 2 (http://www.un.org/aboutun/charter/).
 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).
 Peter Malanczuk, Akehurst's Modern Introduction to International Law, p. 341 (7th Rev. ed. 1997).
 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.
 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
 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.
 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.
 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.
 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).
 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).
 Johann D. van der Vyver, "American Exceptionalism: Human Rights, International Criminal Justice, and National Self-Righteousness," Emory Law Journal, vol. 50 (2001), p. 775.
 See Immaneul Kant, The Foundation of the Metaphysics of Morals, trans. Lewis White Beck (Upper Saddle River, NJ: Prentice Hall, Inc., 1997).
 See Immaneul Kant, "Perpetual Peace: A Philosophical Sketch," available at http://www.fredsakademiet.dk/library/perpeace.htm
 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).
 Malanczuk, op cit., p. 427.
 See "Coalition of the $$$ Willing," Hartford Courant, February 20, 2003 (http://www.ctnow.com/news/opinion/editorials/hc-turkey.artfeb20.story).
 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.
 UNSC Res. 678 (Nov. 29, 1990) (http://ods-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/575/28/IMG/NR057528.pdf?OpenElement )
 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.
 Thalif Deen, "Dollars Yielded Unanimous Vote: Resolution Against Iraq," Dawn (Pakistan), November 11, 2002 (http://www.dawn.com/2002/11/11/int11.htm)
 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.
 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)
 "US Cranks Up Economic Pressure on Germany," Yahoo! News - Singapore, February 8, 2003 (http://sg.news.yahoo.com/030208/1/375mq.html).
 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).
 Malanczuk, op. cit., p. 426.
 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
 UNSC Res. 1441, Paragraph 14 (Nov. 8, 2002) (http://ods-dds-ny.un.org/doc/UNDOC/GEN/N02/682/26/PDF/N0268226.pdf?OpenElement)
 Ibid., Paragraph 12.
 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)
 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.
 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.
 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).
 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).
"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).
 "UN Prepares for Huge Iraqi Casualties," BBC News, January 7, 2003 (http://news.bbc.co.uk/1/hi/world/middle_east/2636835.stm)
 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").
 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/
 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.
 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).
 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.'").
 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."