Leashing the dogs of war

The survival of traditional self-defense norms becomes especially clear when the actual practice of states as well as the Security Council's track record over the past fifty years are examined. From its first years, the Security Council has been torn by divisions among its veto-wielding members and has been singularly ineffective as a guardian of international peace and stability. The hopes that the end of the Cold War would revitalize the Council have not panned out. By contrast, UN member-states have continued to use force unilaterally and with considerable frequency. As Michael J. Glennon, who argues that the UN Charter did intend to limit strictly the use of armed force even for defensive purposes, has correctly observed:

   The question--the sole question, in the consent-based
   international legal system--is
   whether states have in fact agreed to be bound
   by the Charter's use-of-force rules. If states
   had truly intended to make those rules obligatory,
   they would have made the cost of violation
   greater than the perceived benefits. They
   have not. The Charter's use-of-force rules
   have been widely and regularly disregarded.
   Since 1945, two-thirds of the members of the
   United Nations--126 states out of 189--have
   fought 291 interstate conflicts in which over
   22 million people have been killed. (2)

This practice cannot be ignored, whether it is interpreted as being consistent with the correct meaning of the original UN Charter or as declaratory of new (or established) international law norms. It is state practice that "makes" international law, either through the development of customary norms or the interpretation and application of treaties. Because states that signed and ratified the UN Charter, particularly those substantially capable of using military force, have continued to consider themselves free to defend their interests by force of arms with or without Security Council approval, the Charter must be interpreted as consistent with that right.

Nevertheless, in spite of this ever-increasing body of state practice supporting the anticipatory use of force, much of Europe (including important NATO allies like Britain, Germany and France) appears dedicated to the proposition that, absent a direct attack on a state's territory, only the Security Council can authorize a legitimate use of force. At the same time, in the wake of September 11, no American president could accept a rule whereby the United States must, in the absence of the Security Council's specific blessing, absorb a first strike.

How War Must Be Fought

EVEN WHERE the United States and its allies agree that initiating military action is appropriate and lawful, they are rapidly growing apart in their understanding of the all-important rules governing the actual conduct of warfare, the jus in bello. Indeed, because European armed forces have moved toward the "policing" model, in stark contrast to American adherence to the traditional laws and customs of war, transatlantic views on how military operations must be conducted are now quite divergent.