Proceedings are from May 2000 Federalist Society conference.
Jus ad bellum
- Mr. Paul Schott Stevens, Partner, Dechert, Price & Rhoads; Fmr. Special Assistant to the President for National Security Affairs; Fmr. Executive Secretary and Legal Adviser of the National Security Council
- Hon. Edwin Williamson, Sullivan & Cromwell; Fmr. U.S. State Dept. Legal Adviser
- Prof. Ruth Wedgwood, Yale Law School; Fmr. Charles Stockton Professor of International Law, U.S. Naval War College
- Prof. John Norton Moore, Director, Center for National Security Law; University of Virginia Law School (Moderator)
Jus in bello
- Prof. Burrus Carnahan, George Washington University, National Law Center; Senior Analyst, SAIC; Lt. Col. USAF Ret.
- Mr. Lee A. Casey, Partner, Baker & Hostetler; Fmr. Attorney Adviser, Office of Legal Counsel, U.S. Dept. of Justice
- Prof. Michael P. Scharf, New England School of Law; Fmr. Attorney-adviser, U.S. State Dept.
- , Partner, Baker & Hostetler; Fmr. Legal Adviser, White House Counsel Office (Moderator)
Panel One - Jus ad bellum
PROFESSOR JOHN NORTON MOORE: As we look internationally at the rule of law, no issue is more important than the control of unauthorized violence, or what Myers McDougal used to term the maintenance of minimum world public order; that is, an orderly world in which change takes place by negotiation, by consensual arrangement, and not by unauthorized coercion.
Unfortunately, as we look at these issues and we seek to stop aggression and we seek to stop democide and the contemporary genocides that, sadly, continue in the modern world, we find that there is a movement which seeks to curtail the scope of the lawful defensive right and which seeks, in a variety of ways, to cut down the ways in which one can lawfully engage in defense when one is engaged in these struggles.
It is with that in mind that we are holding this two-part program, the first panel focused on what is traditionally called jus ad bellum, or what I tell my students at the University of Virginia is the law concerning the initiation of coercion; that is, when is it lawful to engage in the use of force, and a second panel focused on what is traditionally called jus in bello, or the rules concerning the conduct of hostilities once you are engaged, sometimes talked of as human rights for settings of armed conflict.
But as we look at these issues in the two panels, I would urge that you focus on the bottom line, and the bottom line is that we have a fundamental commitment to seek to stop aggression and democide or slaughter of one's population by governments. We want to encourage a vigorous right to deter this kind of activity and we want to ask ourselves is the legal structure, and any changes proposed in the legal structure, measures that will add to deterrence against aggression and democide, or by seeking to curtail the effective right of defense, will they, in fact, cut down that right.
Now, I am going, in the first panel, to give you an overview of jus ad bellum, a very quick review in a number of minutes, that I spend an entire course on at the University of Virginia Law School, and then David Rivkin is going to do the same thing in the second panel, giving you an overview of the laws of war, before we get into the discussion from our knowledgeable panel members.
In setting the stage for a discussion of the lawfulness of the initiation of coercion, I'd like to briefly just touch on four points for you. The first is the underlying values and policy choices why we have rules against aggression and permitting defense.
Secondly, I will talk a little bit about the syntax of the United Nations Charter that sets the framework for lawful use of force; that is, what are the principal areas of the United Nations Charter that one ought to understand.
The third is to look at a few recurrent claims in use of force law. There are some eighteen to twenty-five of these recurrent issues in use of force law under international law. I'm going to hit about five of those briefly for you, just in a sentence or so, to tell you what the issue is and what it's about.
And then, finally, I'm going to conclude this overview by sharing with you what I regard as two very wrong traditions in thinking about use of force law. The second of those, the one that I am particularly concerned about in our discussion today and one of the reasons for having this discussion is an approach that I call a "minimalist" approach.
Now, let's go back to the first point in our discussion; the question of, theoretically, why do we have the legal structure we do.
Why do we ban aggression? Why not simply say that any nation is free to engage in the use of force anytime they want; that force is a normal mode of interaction among states?
We ban aggression for the same reason that we ban the gunman in domestic society. We obviously do not want a rule that says anybody in domestic society can pick up a gun and do whatever they want.
In economic terms, the transaction costs of that kind of activity are simply astronomical. There have been a minimum of 39 million combatant casualties in wars in this century, not counting the civilian deaths. In a nuclear world, it is simply inconceivable to have a rule that somehow would be based on a, "just war tradition" or to let states simply pick and choose to use force any way they would like.
But why not ban all force? Wouldn't that be simpler? We don't have to then worry about a test of some sort. But there are very fundamental reasons why we maintain the right of individual and collective defense.
First, no nation in the world is going to accept any other rule. It simply would be completely impractical for a nation to agree that they would have no legal right to defend themselves. Secondly, it is a moral principle that's accepted in virtually every legal system in the world and it would be inconceivable not to give a nation, as well as individuals, the right to protect themselves when they otherwise would be attacked with unauthorized violence. But perhaps most importantly--and something that we don't frequently focus on--is that, if we were to treat aggression and defense the same way, what we really would have done is to remove any deterrent effect from law on the aggressive use of force. The aggressor would know that the defender is going to get exactly the same sanctions and be treated exactly the same way by the international system as the aggressor. So there would be no deterrent effect whatsoever from the legal system. We would have made law a cipher in the struggle against war.
Well, why collective defense? Why not only when your nation is attacked? We have collective defense, because otherwise, smaller nations in the world would simply lose any effective right of defense, and the system of world order would be extraordinarily poor if we were back really to a kind of might makes right in that setting.
It is also critically important to keep in mind, as you think about all of this, that the norms on use of force run in pairs of complimentary opposites, and they need to be thought about together. It is not simply a prohibition on aggression. It is a prohibition on aggression and a permission of defense, the two sides of that equation being vital. It is the differential treatment by the legal system of the two sides that creates the deterrent effect. And it's the differentiation that creates the possibility of collective security. You couldn't even have collective security if you didn't have a normative system that differentiated strongly between aggression and defense.
Now, let me briefly give you the syntax of the United Nations Charter. I would suggest to you that there are four areas of the United Nations charter, under the syntax of the Charter, in which the use of force is lawful; that is, lawful use of force needs to be placed in the syntax of one or more of these four areas.
The first is, of course, Article 51 of the United Nations charter, which reflects a customary law right, and one that I believe was not intended to alter in any way the full pre-Charter right of individual and collective defense against aggression. That was something that was implicit in the background statements and the adoption of the Kellogg-Briand pact back in 1928, which banned the aggressive use of force, made that first judgment we talked about on policy choice, and, in essence, also permitted defense, but didn't have it as part of the definition. By accident, because the Latin American states were interested in protecting the regional system in Latin America, we did get the right of defense included in Article 51 of the United Nations charter, which otherwise adopted the Kellogg-Briand basic approach of the prohibition against aggressive attack, and somewhat broadened it to force short of war as well.
Now, the second area of the syntax of lawful use of force under the United Nations charter is a little more complex. It is lawful authorized coercion, as long as not ultra vires, within the respective scope of competences of either the Security Council, acting under Article 24 or Chapter 7 of the charter, or the General Assembly, acting under Chapter 4 of the charter.
General Assembly competence is very limited in use of force. Such force would have to, among other things, not be enforcement action. In the old days, there was a debate about whether the General Assembly had peacekeeping authority. The International Court of Justice held that it did, but we no longer pursue that authority, and all peacekeeping in recent years has gone through the Security Council.
The Security Council has broad authority on use of force, but it can also, I believe, act ultra vires. So one would have to say, in general, that it has lawful authority to authorize the use of force, provided it is not counter to the purposes and principles of the Charter.
The third category is frequently forgotten, even by academics that deal in this area. There is a limited right of use of force within a regional organization, among the member states of that organization, under Chapter VIII of the United Nations charter. This is so in a setting in which the actions of the regional organization (1) are not inconsistent with the purposes and principles of the United Nations charter, and (2) either are not enforcement action, or, if they are enforcement action, are authorized either before or after the action by the United Nations Security Council.
The fourth category in terms of the syntax of the Charter and lawful use of force is Article 2, subparagraph 4 itself, which is the statement of the prohibition of aggression in the Charter. All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the United Nations. That definition theoretically gives rise to the question whether there is a use of force permitted that is below the threshold of Article 2(4). For example, the issue of humanitarian intervention is sometimes discussed as something permitted by the Charter, accepted under customary international law, and below the threshold of Article 2, subparagraph 4. Protection of nationals is sometimes put here and sometimes put under the right of defense, but the point is lawful use of force under the Charter has to appear under one of those four principal areas of syntax.
Now, it doesn't mean that the Charter has to specifically say there is such a right; if it was part of customary international law and it has not been banned by the Charter, as I would argue is the case with humanitarian intervention.
To really understand use of force law under the United Nations Charter, you have to go through a long list of recurrent claims. Remember that the legal realist told us that law isn't just an exercise in defining black letter rules, as they appear in the syntax of the Charter. It is looking through time at patterns of claims and counter-claims and what is accepted by the international community. There are well over 25 of these recurring issues on use of force law.
I'm going to just briefly touch on five of these. One is that for all lawful use of force under the right of defense, individual or collective, there is, under customary law, a requirement that the responding force be both necessary and proportional. So necessity and proportionality are read into the right of defense, even though they don't appear anywhere in the Charter.
A second of these relates to interaction with the Security Council, and here there are a great many popular misconceptions. The right of individual and collective defense in no way depends on initial authorization from the Security Council. That right is there the second you are attacked. When you are attacked or, in the case of anticipatory defense, there is an extraordinary eminent threat of severe attack, there is a right of individual and collective defense. There is an obligation to promptly report to the Security Council. Sadly, we don't always do that. It is always in your interest to do that, because you make the case there to the international community, but in any event, there is no requirement of prior Security Council approval.
A third issue is that of the scope of collective defense. Again, counter to a great deal of mythology, you do not need a pre-agreement for collective defense. Any nation in the world has the right to defend and serve in collective defense on behalf of any nation that is attacked, and that, again, goes back to the fundamental choice for collective defense and the protection of smaller states in the world.
The fourth recurrent claim relates to de facto versus de jure boundaries, and this is one of the most important and fundamental principles and, sadly, one of the least talked about in all United Nations use of force law. What kind of boundaries does that prohibition in Article 2, subparagraph 4 against the threat of use of force apply to? Is it merely de jure boundaries; that is, states that are recognized by everyone in the international community, or does it also apply to de facto boundaries (for example, disputed islands, disputed boundaries, divided nations, or cease fire lines)? The answer to that, under the United Nations Charter, is enormously important. It is that it applies fully to de facto as well as de jure boundaries. Whatever the underlying perception, for example, about Taiwan and the PRC, it is clearly in violation of the United Nations charter to use or threaten to use force to resolve any issues between Taiwan and the PRC. I believe that is a fundamental issue that the United States should be making very clear in relations with the PRC, and that is in no way inconsistent with the Shanghai Declaration or past United States policy with respect to the PRC.
This was a major issue in the Falklands War, for example. The Argentines can't just simply say the Falklands belong to them and, therefore, it's lawful to use force to take them back. No. They were de facto under the control of the United Kingdom at that point and this rule applies to de facto boundaries, and any other rule would be to open up the Charter to a destruction of the core fundamental principles against the use of force.
The fifth point is simply a little bit of the history of the charter principles in individual and collective defense. Many of the minimalists will parse carefully words like "armed attack" in Article 51 and seek to argue that there is a reduced right of defense over that which was permissible at customary international law. I suggest that, in fact, that is absolutely counter to the history of the drafting of the United Nations Charter, in which it was clear in the discussions in committee that nothing was intended to curtail the preexisting right of individual and collective defense and the scope of those rights under existing customary international law.
It is also very important for us to understand that the prohibition against unauthorized coercion, we loosely call aggression, applies to the low intensity spectrum as well as the so-called high intensity spectrum. High intensity means armies on the march-the Korean invasion, the last stage of the Vietnam War, with Hanoi violating the Paris peace accords, et cetera. The so-called "low intensity" spectrum includes the terrorists attacking you or secret warfare as waged, for example, by the Ortega brothers and the Sandinistas against neighboring countries in Central America, not only El Salvador, but Guatemala, Honduras and Costa Rica as well, some years ago in the struggle in Central America. Those are settings that I believe you provide a full right of individual and collective defense in response, although, sadly, a minimalist tradition, including the judgment of the International Court of Justice in the Nicaragua case, has confused that point.
Now, let me end this beginning overview on use of force issues by suggesting two very wrong traditions as ways of thinking about all of this.
The first is what I would call the "supposed realist" school. I say "supposed realist," because I think they are not truly realists as that fail to understand the importance of law and the prohibition against aggression. But they are basically coming away saying none of these rules are important and they're not really appropriately enforced. Let me suggest to you that these thinkers are fundamentally wrong, and they would lead to a world in which it is easier for the aggressors and the slaughterers to operate than in a world that seeks to apply the rule of law, as the Federalist Society always has. This supposed realist argument simply seeks to throw the baby out with the bath water.
The second wrong tradition that is the greater threat today is what I call the "minimalists." This is a group that never seems to focus on the illegality of the aggressive attack and the impermissibility of aggression, though if you asked them, they'd probably say "yeah, of course, that was illegal." They focus instead on seeking to curtail the right of defense through a variety of interpretations of the Charter, some of which are plausible, but wrong, others of which are not even plausible. This is a group that I think is well meaning, but unfortunately does not understand that what it's about is fundamentally curtailing the effectiveness of the role of law in deterring aggression and deterring very serious humanitarian atrocities, such as, sadly now, that we're seeing yet again in Sierra Leone. This school would, rather than throwing the baby out with the bath water, engage in what I would simply say is drowning the baby in the bath water.
Let me give you a few real world examples of arguments made by this minimalist group so you will know that I'm not simply making this up.
There is a broad argument that Article 51 of the UN Charter limits the customary right of defense, particularly that it prevents anticipatory defense or defense against the "low intensity" spectrum, and that it only permits defense against an open invasion. This is absolutely wrong.
There are arguments that the right of defense does not include response against the territory of a state that is providing major assistance to or directing secret warfare against you; that is, that it should be illegal to respond against Nicaragua if Nicaragua is running a secret war against neighboring states. There are arguments that whatever use of force is carried out by the United States or a UN Coalition is, in fact, non-proportional, even in relation to situations such as the Gulf crisis, with 700 national security lawyers passing on every single targeting decision. There are arguments that the right of defense under Article 51 ceases once an issue has been referred to the Security Council. That's absurd, if you stop and think about it. You'd never refer anything to the Security Council if, in fact, when you referred it to the Security Council, you lost your right of defense. That was seriously argued during the Desert Shield phase of the Gulf War, when a very high level former U.S. Government official was arguing that it would be illegal for us to use force in relation to the Gulf War.
I'll also just give you my personal favorite argument in which it was argued very seriously that there was no right of individual or collective defense on behalf of the Kuwaitis because the country of Kuwait was occupied and, therefore, there was no one that could invite the United States in. I would suggest that these approaches within the "minimalist" tradition are of enormous significance in potentially harming the ability of the democracies to work for rule of law and against the real bad characters out there, of which, sadly, we continue to have an abundance in the world.
With that rather brief overview of the issues, let me turn to our distinguished panel and I'm going to start first with Edwin D. Williamson, who, as you know was the former Legal Advisor of the United States Department of State, and is now back with Sullivan & Cromwell.
MR. MOORE: Our next panelist is Paul Schott Stevens. Paul Stevens has served in a variety of senior positions in the U.S. Government, including in the White House as a Special Assistant to the President for National Security Affairs, and as Executive Secretary and Legal Advisor of the National Security Council.
MR. STEVENS: At the White House during the last two years in the Reagan Administration, I was involved in six different war powers notifications to Congress. These all concerned US actions in the Persian Gulf and, as you may remember, at the time, this was during the period where Iran and Iraq were involved in a protracted and bitter conflict, and the Iranians were threatening at that point to close the Persian Gulf to oil shipments to the world, something that the United States found to be, as did many others, completely intolerable. Many of the super-tankers that were proceeding back and forth to Kuwait took on the United States flag and United States military forces were deployed to assure that the Gulf would remain open.
I had occasion to see both the domestic and the international context close-up in various meetings with the President, with the members of the National Security Council and with Cabinet level members. I also saw how legal considerations fit into the broader policy and political considerations and international exigencies which we were trying to address. I have a few observations based upon that. First of all, I think it's very important for us to understand that as a people, as a democracy, we're not an aggressive power. Our leadership politically does not come to a decision concerning the deployment of US armed forces lightly or easily. We are constricted by our tradition, our political culture, our own dispositions with respect to the use of armed forces, and, of course, by our Constitution, most fundamentally.
There is a tremendous amount of accountability that any President faces in the deployment of forces, and particularly under situations where they may be involved in imminent conflict.
One area that neither Edwin nor John has touched upon that I think is very important, because it changes the context dramatically, has to do with weapons of mass destruction. The fact of the matter is that we will face these issues with respect to the initiation of the use of force in a fundamentally different context in the future, where weapons of mass destruction may be much more widely available and much more readily deliverable. They may be in the possession of what we think of as other than sovereign state actors, but who may be, in a terrorist context, for example, tolerated by the governments in whose territory they are operating. They pose very significant issues in terms of thinking through, on a principled basis, the application of the rule of law to the use of force.
Too narrow a concept of what is legitimate defensive force in this context will have very, very serious adverse consequences. It will mean that we cannot deter precisely the sort of aggression that will lead not only to significant damage, casualties, and consequences for our national interest, but may very well change the international environment very substantially.
Just to give a few observations in the nuclear context, as you probably know, the United States, as a matter of policy, has never provided any assurance, at least broadly, that we would refrain from using nuclear weapons on a first right basis. We have given negative security assurances to those countries that do not possess nuclear weapons that we will not, against them, use nuclear weapons, but we've declined to make a first use pledge to those powers that are nuclear armed. But when you face a situation, for example, as we did in the Gulf War against Iraq, there was clearly debate within the Bush Administration about what our posture should be concerning the use of or the threat of the use of nuclear weapons upon the initiation of hostility with the Iraqis. Clearly, we knew that they possessed chemical or biological weapons. They had used them already in the Iran-Iraq war. We new that the regime was certainly capable of forming an intention of using them again and there was a lot of speculation, as you remember, that they would do just that.
As I recall, Vice President Quayle, at the time, said that the United States would not use nuclear weapons. Rather promptly thereafter, Secretary Cheney took to the microphone to make it clear that the United States reserved all options in connection with the conflict and he made some reference to using options, the effects of which would be overwhelming and devastating, which everyone took to be code for use of nuclear weapons.
Now, if you're trying to quell a biological or chemical threat, and you are trying not to spread the impact of those weapons to civilian or other populations, among the best weapons that you can use are nuclear weapons, because they will tend to destroy the chemical and biological threat. They'll do a lot of damage themselves, but it can be more limited. But there are scholars and activists in the international legal community who have sought to adopt as a principle the idea that the threat of the use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and, in particular, the principles and rules of humanitarian law.
This leads to another collateral issue, which is how imminent the threat of attack has to be before we can exercise the right of self-defense. I think the minimalist school would say that until the attack has actually happened, you are not authorized, if you are even then, to use force. But we will face circumstances where, as a result of our ability to gather intelligence we may be able to identify imminent threats of utilization of weapons of mass destruction. And what is our ability to act before that time? Obviously, from a political and policy point of view, the level of information we have has to be of reasonably high certainty, at least in proportion to the degree of the threat. My question would be, for the international lawyers in this field, how much of a threat, and how much certainty, do we have to have if what we're dealing with is chemical or biological weapons, which could be deployed covertly by a terrorist group which has implicit state sponsorship against a major US metropolitan area.
These are, I think, some of the future challenges that we will have to face in articulating these concepts of what is a legitimate use of force under the United Nations Charter and under customary international law. They clearly will involve issues of deterrence, perhaps issues of preemption, and issues of anticipatory self-defense. These are settings current law simply doesn't anticipate, because the world is getting so much more complicated.
MR. MOORE: Before moving to the floor, let me pick out two of the themes that we've heard from a number of panelists. One relates to this question of the minimalist tradition in seeking to curtail a variety of areas that otherwise have been recognized as lawful under the charter and I think we are indebted to Ruth Wedgwood for clarifying the Kofi Annan doctrine and indicating that it is not an official United Nations doctrine, that only one of the areas of lawful use of force is, in fact, Security Council authorization; that is, it is one of those four that I had laid out for you in the overview.
We should also understand that many of the "minimalist" arguments are coming from people who don't know the specifics of use of force law very well, and, above all, they have failed to focus on the critical importance of the role of law in deterring and sanctioning unauthorized coercion. That is, they may not have understood that by focusing too much on a minimalist approach, they are, in fact, undermining the critical effect of law deterring aggression and democide in the international system.
Kofi Annan is not the only Secretary General who has fallen into this in terms of an ambiguous statement about use of force. A clearer one in fact came from Pérez de Cuéllar during the Gulf conflict, in which he suggested, during the Desert Shield portion, remember when we were in Saudi Arabia at that point but had not yet gone into Kuwait to expel Saddam Hussein, he suggested that too much time had passed and, thus, there was no longer a right of individual and collective defense for the coalition and only Security Council authorization would be effective.
My office immediately called up the Legal Advisor's office of the United Nations and said we're sure the Secretary General wouldn't have made such an important legal statement absent a thorough briefing from the legal advisor's office of the United Nations, so could you please send us a copy of that legal brief as to your interpretation of the Charter. They responded, oh, no, no, this was just off the cuff by the Secretary General, and was in no way a serious interpretation of the Charter.
But the minimalist tradition is something that despite being made for good reasons, by good people, is extremely dangerous and harmful for world order.
The second point, very briefly, is a little bit about humanitarian intervention. One of the justifications legally that, theoretically at least, was available to the United States and NATO during Kosovo was the argument of humanitarian intervention; that is, the protection of nationals in another country who are threatened in a mass genocidal setting. This is not something that is new. This is an issue that has been debated for many years.
If you are interested in looking at one of the best debates on this, it occurs in a little book that I edited in the early 1970s, with a chapter by Richard Lillich, my former colleague at Virginia, and a chapter on the other side by a scholar, Ian Brownley, of the United Kingdom, who was arguing against humanitarian intervention.
This has been a debate throughout modern history, particularly in the 1960s and '70s, but, in fact, a majority of United States international lawyers today accept the concept of humanitarian intervention.
The United States State Department, as you may or may not know, was torn by disagreement on this issue during Kosovo as to whether we should place the United States legal position on humanitarian intervention or whether it should be placed on a contextual weaving of a variety of factual features.
NATO itself was split and a number of governments were split and agencies of other governments were split on this same issue. I personally believe that humanitarian intervention, as I wrote during the 1970s, was lawful and that we and NATO made a mistake in not, in fact, putting the Kosovo action clearly on humanitarian intervention.
If anyone is interested, I can tell you a little bit about the different parts of the state and who was arguing what, because it was rather interesting in this case, but I won't go into at this point.
Let's open it up to questions and discussion at this point, and I would particularly like to note that we have in our audience, among many others, two particularly distinguished statesmen. One is Judge Robinson Everett, former Chief Judge of the Court of Military Appeals. The second is Ambassador Edwin Rowney, one of the top United States START negotiators.
The floor is open for questions or comments at this time.
MR. RIVKIN: I'll just give a very few brief remarks that kind of set out my views and biases on the evolving jus in bello norms. My remarks will cover three points.
The first one I would call, for want of a better term, the good old days. The second is what I see as the current problems with jus in bello, and, third, what the United States has, or has not, done in contributing to these problems. Then I will introduce, in order of appearance, three distinguished speakers.
We've heard a very stimulating discussion on jus ad bellum. The point was made that it has a twin companion, jus in bello, which is a set of rules governing the actual use of force, once force has been unleashed. It's a very venerable body of law and, again, perhaps I'm being politically incorrect, but I want to emphasize that it certainly reflects in very profound ways Judeo-Christian moral teachings, in general, and the just war theory, in particular. Traditionally jus in bello was rooted in customs. To be sure, from time to time, you had jus in bello-related treaties and conventions, dating back to the 17th, 18th, and certainly 19th Century.
More recently, beginning in the early 20th Century, there has been a real acceleration in the codification of jus in bello norms.
In addition to these international documents, I would say jus in bello norms are incorporated in domestic laws in almost all countries. I would say all countries, but being a careful lawyer, since I have not looked at all of them, I'd say almost all countries. Of course, jus in bello norms came to be reflected in various military codes of conduct and manuals.
And I would say, again, while there has been an acceleration in the pace of change in the jus in bello law the last 100 years, traditionally this is a body of law that has evolved slowly over time.
Even more importantly, this is an area of law that has evolved or came into existence based upon the consent of a sovereign states, who constituted the members of the international community.
Another point worth emphasizing is that, while jus in bello was meant to temper warfare, it was never intended to impede military efficiency. To be sure, from time to time, you had some quixotic efforts to try to ban militarily useful things, but they didn't amount to much. By and large the only weapons that really were banned outright were weapons that were not particularly useful.
For example, a crossbow was useful in warfare (while it was inferior to the longbow in almost all respects, its key virtue was the fact that a person could be trained to use a crossbow relatively quickly, while a bowman had to commence his training as a boy), so efforts to ban it did not bear much fruit. By contrast, dum-dum bullets got banned because, by and large, you can fight quite effectively without using them.
I would even argue that the ban on using chemical weapons, that was done in the 1925 protocol, proved to be of limited utility. In my view and the view of a number of historians of World War II, the real reason chemical weapons did not get used in World War II was more a matter of professional courtesy, and not because of legal proscription. Essentially, all sides in World War II were not particularly happy about getting gassed.
It's not very pleasant to operate in combat while wearing protective suits, and you don't really get much of a decisive advantage one way or another.
And by contrast, chemical weapons continued to be used quite cheerfully and plentifully in a variety of regional conflicts or insurgencies where the military imperative would drive one side or the other toward using them.
Traditionally, jus in bello came to be divided into two distinct components. The first component is the so-called Hague law, which deals with rules governing combat, occupation, neutrality, and belligerency. It has been organized around a set of broad normative propositions, of which proportionality and discrimination are the two key ones.
As far as proportionality is concerned, it reflects the recognition of reality that in combat, you will, no matter how much you try, inflict some collateral damage on civilians and their property, while attacking legitimate military targets. Broadly speaking, the proportionality principle would be satisfied if the degree of the extent of collateral damage is commensurate with the military benefits that accrue from the attack.
The discrimination principle looks at warfare from a slightly different perspective and says that combatants should only espouse military objectives and only attack military targets. If we had more time to look at the traditional just war theory in detail, which, again, has a rather heavy infusion of interesting Judeo-Christian philosophical principles, we would appreciate that intent is very important, one ought to desire the right things and not desire the wrong things.
To me, one very important feature of the Hague law is that it had broad, not prescriptive, but broad normative principles -- e.g. proportionality and discrimination -- and that these principles were to be construed in the context of military necessity. Stated differently, the military imperatives provided the all important context for the legal analysis.
The Geneva law, the second part of jus in bello, was largely humanitarian in emphasis and has been really limited to one key issue, which is protection for non-combatants, POWs, wounded, sick, shipwrecked, and medical personnel. Compared to the Hague law, Geneva law provisions have traditionally been more prescriptive and proscriptive. In the post World War II area, this body of law has been organized around four Geneva Conventions and numerous additional protocols.
And my last point, which I again put under the rubric of the good old days, is that with the notable exceptions of Nuremberg and Tokyo and perhaps a few other instances I overlook, compliance with jus in bello norms was assessed by the national authorities of various sovereign states and penalties for non-compliance were meted out on that basis.
What do we see happening today? In my view, a number of bad things are happening. Obviously, there are people here that may disagree with this list of horrors. In my view, the jus in bello rules are becoming ever more detailed and prescriptive. In many respects, and I don't mean this comparison to be flattering, the jus in bello strictures are beginning to resemble our domestic regulatory law. We're getting to the point where it's pretty much impossible for any combatant to be assured that his actions are in full compliance of all of the applicable jus in bello norms. This inability to establish what people, who practice law for a living and are called upon to issue legal opinions for clients, refer to as a "safe harbor" and the need instead to look at all the facts and circumstances and have all sorts of the caveats and qualifications, is not a very good thing. This regulatory uncertainty problem, I think, is exacerbated by the inherently emotional and political realities of warfare and some of the other problems, which I'll mention briefly.
The second problem, distinct, albeit a related one, is what I see as a growing disconnect between military and legal imperatives. And I think it's kind of highly significant that it's happening now, just when we're in the middle of yet another round of the so-called revolution in military affairs. This current phase has been described by some defense analysts as "information warfare." Several related points need to made here.
To begin with, we have the US military doctrine that correctly, I think, stresses the need for the United Sates to be able to dominate at all levels of conflict, while emphasizing our strengths and capitalizing on our adversaries' weaknesses.
And as far as our strengths are concerned, it's obviously our technological edge. And as far as our weaknesses are concerned, the key one is our growing and very real aversion to casualties. Certainly, our own, but also our enemy's casualties. I recently saw an exposé by Sy Hirsch, who harshly criticized General Barry McCaffrey, who was one of our division commanders under Norman Schwarzkopf, in the Gulf War. The thrust of his attack was an allegation that McCaffrey's division inflicted unnecessary casualties on Iraqi troops. This is somewhat ironic, since one of the earlier speakers observed that the Gulf War was about as well lawyered as any war could be.
Another relevant trend, I would say, is the blurring of distinctions between certain types of military and civilian targets, particularly in such areas as communication and information infrastructure and power networks.
To me, this combination of technological and political imperatives suggests that the national decision-makers might want to fight and win wars by attacking targets beyond the battlefield, focusing instead on things like information nodes and really try to magnify the ever present fog of war to the point where you can completely disorient the enemy commanders and if you're really crafty, perhaps get the enemy's own weapons systems to attack his own troops.
In an ideal situation, you may be able to prosecute a conflict almost in a bloodless way, with a decapitated adversary unable to respond and leave his forces in being alone. And to me, this approach to warfare is perfectly acceptable and compatible with the traditional principles of jus in bello, if you articulate them broadly -- proportionality and discrimination. The right way to proceed, given the technical realities of "information warfare," would be to refine those jus in bello propositions in a way that is consistent with the new military imperatives. Unfortunately, what we're seeing, is that those new military imperatives cannot be reconciled with the ever more detailed and proscriptive jus in bello strictures.My next point is that there is a growing tendency to water down and eventually to do away with important distinctions between uses of force that trigger international jurisdiction and are subject to jus in bello norms and the ones that don't.
A lot of commentators write very elegant law review articles, which I occasionally have time to read in between practicing law, that suggest why, these days, international and internal conflicts kind of meld into each other and should be subject to the same set of jus in bello principles. There is certainly evidence that some of the more recent decisions of the Yugoslav Tribunal are going in that way.
I would say academic commentators are going even beyond this position. I'm not aware of any legal case yet, but at least commentators are suggesting that, well, maybe you don't even need to refine the definition of armed conflict and that uses of force below that level are subject to jus in bello principles. So, basically under this approach, all uses of force by whomever, a sovereign government perhaps or private entity, would trigger international jurisdictions. I don't think it's particularly good, for a variety of reasons, which we can discuss later on.
Two other things are worth mentioning. I think the tempo of change in jus in bello norms is getting ever more rapid and, more importantly, the consent of sovereign states, which is the way traditionally those norms were brought into existence, no longer seems to be all that important.
In fact, again, you have a lot of people writing articles which say that these days you can create jus in bello norms without specific assent of sovereign states and that the relevant decision-makers are no longer states but, rather, NGOs and international institutions.
One of the interesting sorts of new phenomenon here is the creation of a kind of common law in the area, spawned by the decisions of various ad hoc tribunals and the looming presence of ICC. By the way, I'm not saying that it's inherently bad to have ad hoc international tribunals, but the fact that you have a common law emerging outside of national jurisdictions certainly further reinforces the diffusion of authority in the making of jus in bello law and the decline of the influence of sovereign states in this area.
The next point I would make is the growing tendency to delegitimize a broad range of, let's call them tools of warfare, that I would argue remain vital to American national security.
I think Paul Schott Stevens spoke a little bit about the problem of nuclear weapons. I don't mean to belabor this point, except to say that those of you who read the 1996 ICJ advisory opinion on the legality of nuclear weapons would have to acknowledge that legitimacy of nuclear weapons has been imperiled. It is sort of hanging there by the skin of its teeth. The basic legal proposition reflected in the ICJ is that you can only use nuclear weapons in self-defense and if the state's very survival is at stake. This, of course, is a classic formulation of the finite deterrence. The United States has spent decades developing a nuclear force posture, employment concepts, and doctrinal pronouncements designed to further our ability to provide extended deterrence. The reason for this is quite simple--we relied on nuclear weapons as a strategic crutch to offset our perceived inferiority in conventional forces in Europe and, in general, we utilized nuclear weapons as a way of deterring the Soviet Union from a broad range of challenges directed not just at us, but our allies as well.
Having been a defense analyst in the past, I remember how resolutely we used to fight the no first use concept. Yet, here, ICJ has come up with sort of legally driven no first use doctrine, which we spent fighting against for decades.
The need for extended deterrence has not disappeared after our victory in the Cold War. We can all envision many situations where not being able to make a credible threat of use of nuclear weapons is going to be a bad thing in terms of encouraging the bad guys to use weapons of mass destruction against us. Reportedly, we used nuclear threats during the Gulf War, to ensure that Saddam Hussein did not use chemical weapons against our troops.
Now, somebody can say to me, well, but doesn't deterrence always stem from the very possession of nuclear weapons and it's always a reality? This is true, yet, we've spent years and decades from - the late 1940s on trying to refine and bolster the credibility of deterrence. In any case, creating a situation where making a threat to use nuclear weapons, is, per se, an illegal act and, in a country like the United States, which we all agree, pays inordinate attention to law compliance, is not a very useful thing.
I mean, I would hate to be an American decision-maker who would have to make such a threat or be a lawyer advising one who has to make this threat -- knowing that making such a threat is, per se, an illegal conduct, and may subject that individual to subsequent prosecution. It's a hell of a pickle to be in. And nuclear weapons are not the only tool of warfare that's getting delegitimized.
Again, I do not want to talk much about land mines, because other people have mentioned this already, but suffice it to say, we're well down the road where land mines, with the exception of a few unique circumstances, are being delegitimized. There is a similar tendency to -- when you look at things like computer viruses and similar implements that can be used to attack information nodes and choke points in hostile countries -- deprive our decision-makers of the best ways to prevail in this new strategic environment.
Another example concerns ballistic missile defense. Discussions in this are should be discussions about strategy, not law.
Thus, when I read people writing that the 1972 ABM treaty has become a norm of customary law, and that any efforts to derogate from that regime constitute violation of international law, this makes me quite angry. The notion that a bilateral treaty, which specifically recognizes the right of either party to withdraw from it, and which can be extinguished in accordance with the relevant principles of internal law that deal with state succession, can suddenly become a binding norm of customary international law is absurd.
And to me, what's really ironic is that these legal prescriptions and taboos impact the most countries like the United States and our allies and do very little to shape, in a meaningful way, the behavior of rogue states that continue to practice genocide and pay very little attention to even the most traditional and well established jus in bello norms. A related problem is a tendency to delegitimize the practice of reprisals, whose very purpose was to deter potential wrongdoers from violating jus in bello norms.
A couple other points, and, again, I apologize for drawing such a depressing picture, but there is a growing emphasis on the need to achieve zero collateral damage, zero civilian casualties, and proliferation of ever more specific proscriptions. One good example of the latter problem is the convention to protect children from the ravages of war. I don't think we need a special jus in bello convention to deal with children. I think that conventions that deal with civilians are perfectly sufficient.
And last, but not least, we do have a new set of players assessing compliance. We have national courts for countries, we have ad hoc tribunals, and we have the ICC. Meanwhile, under the universal jurisdiction principle that, traditionally, at least in my view, applied to a very narrow range of cases arising out of events that took place outside of anybody's national jurisdiction, courts in one country feel perfectly justified in passing judgments on the behavior of government officials in another country. The consequences of this trend are quite serious.
If you have a US General, who commits what somebody perceives to be a violation of jus in bello, he would have to be concerned about what might happen to him. Let's say such a General, once retired, may travel abroad and some Spanish judge or some other judge would not like what he's done and would issue an arrest warrant that INTERPOL would serve and the fellow may well find himself in a very difficult situation. My point here is that the last thing we need is a situation where American military officers, when making difficult decisions in combat, would have to worry about these considerations.
A final set of remarks. I think that the US here is both at risk and somewhat at fault. To me, at least, I think that there's really very little doubt the US is very much a target of various negative jus in bello-related initiatives. To begin with, as I think even this Administration has acknowledged, we are the world's remaining super-power and, therefore, involved in virtually all of the combat going on today and likely to take place. A more fundamental problem is that both our friends and enemies very much want to constrain and limit American policy choices.
I'm not trying to put in the same boat our allies and our adversaries. I think adversaries, by and large, want the United States to become disengaged and uninvolved and let them do as they wish. Our allies don't want that. If anything, our allies want the United States to become more involved and not be isolationist, but what they really don't want is for the United States to act unilaterally. They want very much to shape, through the UN, regional organizations, diplomatic dialogue in general, and the law, US conduct. You detect almost a near obsession on the part of everybody abroad with the goal of not allowing the US to act unilaterally.
And in my view, international law, in general, and jus in bello, in particular, is very much a part of that agenda, and very much a way of constraining American freedom of action.
Finally, there is some very negative synergy between the jus ad bellum and jus in bello trends. By the way, I certainly agree with Ruth's point that neither Annan nor anybody else at the UN has said you can only use force with the Security Council blessing.
I would like to posit though that it's not incorrect to say that a number of people have opined that, if you are using force in a situation short of an absolutely clear-cut attack on your territory, the UN blessing is much to be preferred.
To clarify, if you're operating in a somewhat more ambiguous environment and you do not have a Security Council authorization, you are more at risk on the jus in bello side than if you did. Allow me to read here a brief quote from a recent article I've seen in the Michigan Journal of International Law, by Professor Marcello, who is supporting the ICC and was pretty candid to point out as follows, "[when] the US acts pursuant to Security Council authorization, this means its nationals would be largely immune from prosecution in the criminal court." To the extent that the US officials or servicemen might indeed be forced to defend against allegations of serious crimes, these US officials and servicemen will be most at risk when the US is acting unilaterally.
I believe that we are contributing to this problem. First, we don't recognize it, at least not all of us, and I think that we have not opposed those trends with sufficient vigor.
In other areas, we have contributed to the problem and, again, there are a number of examples that perhaps my colleagues would mention, but I would tell you that we certainly take positions and file briefs that are inconsistent even with our half-hearted objections to certain evolving jus in bello norms.
Use of Force for example, I think it's asurd for us to be opposing Additional Protocol One and then be saying, in the same breath, that its core provisions reflect customary international law, or when we criticize the 1999 regulations promulgated by the U.N. Secretary General, that purported to reflect the protective norms distilled from customary international law, applicable to all conflicts in which UN forces are involved.
We criticize it, on the one hand, and then we get our troops deployed as part of UN peacekeepers. And we quietly indicate that we would abide by these regulations.To me, again, and this is independent of what you think about those regulations -- this conduct is just plain stupid, because, since customary law is very much driven by ascent and behavior, by acting as if we accept it, while publicly deriding it, the end result is that we have accepted it.