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Leashing the dogs of war

National Interest, The, Fall, 2003 by David B. Rivkin, Jr., Lee A. Casey

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Overall, the importance of this Euro-American doctrinal divergence cannot be overestimated. For the first time in modern history, the principal military powers differ fundamentally over the proper rules governing warfare.

The Legitimate Use of Armed Force

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NOWHERE are the divisions between the United States and its European allies deeper or more apparent than on the question of when the use of armed force is legally permissible. In the months prior to the Coalition attack on Iraq, France and Germany insisted that force could be used legitimately only after passage of an additional UN Security Council resolution specifically authorizing it. This interpretation became the European Union mantra. Of course, the Coalition went forward regardless. Yet even such key European members of the Coalition as Britain relied solely upon Security Council resolutions for legal justification. (1) Unlike the United States, it did not also cite the inherent right to use force in self-defense. Indeed, while Europe has increasingly come to consider the UN Security Council to be the primary--if not the sole--source of legitimate authorization for the use of military force, the United States, in its September 2002 National Security Strategy, articulated a policy of strategic "pre-emption" firmly rooted in the traditional jus ad bellum.

Proponents of the European position cite the United Nations Charter, an instrument that does bind the United States and arguably limits the right of self-defense. Certainly some of the UN's "founders" wished to "outlaw" war, and even to require countries to absorb an aggressor's first strike. (This appears to have been, for example, the position of former Minnesota Governor Harold Stassen, a member of the American delegation to the San Francisco conference. Stassen insisted that the Charter's acknowledgement of the "inherent right of individual or collective self-defense" also include the language "if an armed attack occurs.") The Charter as written, however, did not reflect this purpose.

Indeed, the UN Charter never purported to replace the jus ad bellum. In this regard, it does not grant the right of self-defense, but acknowledges it, suggesting the continued viability of pre-Charter customary norms. When the Charter is read as a whole--as it must be--states retain the right to use force so long as they do not threaten the "territorial integrity" or "political independence" of another state, or otherwise act in a manner inconsistent with the United Nation's purposes. Indeed, the veto power--which was the sine qua non of American participation in the UN system--would have been virtually meaningless in this critical area if the Security Council's mere inaction were sufficient to deny legal legitimacy to the anticipatory defensive use of force. (Significantly, this interpretation of the Charter did not originate with the Bush Administration. For example, in a 1962 legal opinion on America's lawful alternatives in the Cuban missile crisis, the Kennedy Justice Department noted that the UN Charter does not "prohibit the taking of unilateral preventive action in self-defense prior to the occurrence of an armed attack.") And, at a time when civilians, rather than combatants, have become the targets of choice for both rogue regimes and international terrorist networks, and when at least some of these groups appear to be beyond deterrence, pre-emptive military action taken in self-defense is far more likely to promote international peace and security than it is to threaten it.

Leashing the dogs of war

National Interest, The, Fall, 2003 by David B. Rivkin, Jr., Lee A. Casey

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