War, International Law, and Sovereignty
Reevaluating the Rules of the Game in a New Century
About This Event

Terrorists continue to challenge American forces in Iraq, Afghanistan, and elsewhere. Rogue nations armed with weapons of mass destruction threaten our national security and our allies. And in each instance in which the United States responds directly to these threats, it is accused of violating international law. How is it possible to address new challenges in a manner that effectively protects American national security, is consistent with international law, and remains respectful of American sovereignty? Or must the United States lead the way in designing a new system of international rules to handle new problems?

Please join AEI on June 24 for a lively debate on the battles--legal and otherwise--ahead.

Agenda
9:45 a.m.

Registration

10:00 Introduction/Book Presentation: Jeremy Rabkin, Cornell University, author of The Case for Sovereignty: Why the World Should Welcome American Independence (AEI Press, June 2004)
10:45 Panel I: Breaking all the Rules? Use of Force
Panelists: Lee Feinstein, Council on Foreign Relations
Stephen Rademaker, assistant secretary of state for arms control
John Yoo, AEI
Moderator: David Rivkin, Baker & Hostetler LLP
12:15 p.m. Luncheon

Introduction: Christopher DeMuth, AEI
Keynote Address: Under Secretary of State John R. Bolton
1:15 Panel II: Developing a Legal Framework to Combat Terrorism
Panelists: Gabor Rona, International Committee of the Red Cross
Madeline Morris, Duke University School of Law
Hays Parks, special assistant to the judge advocate-general of the U.S. Army


Eric Posner, University of Chicago
Ruth Wedgwood, Johns Hopkins School of Advanced International Studies
3:00

Adjournment

Event Summary

June 2004

War, International Law, and Sovereignty: Reevaluating the Rules of the Game in a New Century

Terrorists continue to challenge American forces in Iraq, Afghanistan, and elsewhere.  Rogue nations armed with weapons of mass destruction threaten our national security and our allies. And in each instance in which the United States responds directly to these threats, it is accused of violating international law. How is it possible to address new challenges in a manner that effectively protects American national security, is consistent with international law, and remains respectful of American sovereignty? Or must the United States lead the way in designing a new system of international rules to handle new problems? At a June 24 AEI conference, scholars, legal experts, and government officials debated these questions.  

 

Jeremy Rabkin
Cornell University and AEI

There are two characteristic delusional claims of our time, both controlled by the UN. The first claim, that a member nation could not go to war without UN approval, is a new notion. The second claim is that we should reduce our influence with the interim government of Iraq immediately. The implication of such a statement being that U.S. influence is not needed to provide the conditions for a legitimate state of sovereignty--a real functioning democracy--rather "sovereignty" can exist merely in title. The internal/external paradigm is important because it abstracts from the role of force: approval from the UN is needed, if war is impossible without UN consent, then no one needs to go to war because the UN can be entrusted with the security of all its members. Despite the UN's lack of an army, its moral force is what protects nations.  These delusions were particular potent in the 1990s when the idea of global governance was popular.

Sovereignty is about constituting the exercise of force. Sovereignty is about government, and government is force coercion. The constitution defines a scheme of government, which determines when, where, and how force will be applied. Global governance undermines constitutional structures in sovereign states. Global governance is periphery to the state: citizens do not see global governing institutions as enforcing the law.  To think that international governing bodies are reliable security enforcers, you have to think everyone shares concern equally about everyone, which is not reasonable.

The European Union promotes the notion that countries can pool their sovereignty: everyone in Europe will have a common foreign and defense policy without troops to protect them and agree to European standards on border control--but Europe does not have to protect borders. This is awkward and problematic, as the Europeans themselves are discovering.

In the international community, sovereign states are equal in as much that they all have a right to determine what will happen within their borders. Nations cannot simply rely on the world for security. Sovereignty is not the sum of human happiness or political understanding, but it is a precondition and fundamental concept.

Stephen Rademaker
Assistant Secretary of State for Arms Control

U.S. policy in handling WMD has many components: multilateral efforts to control exports of sensitive goods and technologies, interdiction of shipments of such goods and technologies to dangerous regimes through the proliferation security initiative, threat reduction activities, and missile defenses. The most controversial element, however, has been the policy of preemption laid out in the September 2002 National Security Policy of the United States. The United States will not use force in all cases to preempt emerging threats, nor should other states use preemption as a pretext for aggression. The objective of this policy is to change the calculus of proliferation for dangerous regimes, to cause them to reconfigure their operating assumption that acquiring WMD will make them safer and stronger. 

Cases that require preemption should be viewed as failures. The successes will be documented by the number of regimes that abandon the quest for WMDs or already existent WMD programs under the threat of preemption. The criticism that the failure to find WMDs in Iraq indicates a misplaced policy misses the point of preemption. Before Operation Iraqi Freedom, the assessment that Saddam Hussein was hiding WMDs was shared by virtually every single government with an intelligence service. Saddam defied UN Security Council resolutions and obstructed the work of UN weapons instructors to the very end. 

Hans Blix hypothesizes that Saddam thought he would be safer if he convinced the world community that he had WMDs and therefore Saddam was actually concealing his lack of such weapons. If this is true, then applying the preemption policy to Iraq therefore was intelligent because after Iraq, no other country will make the mistake of pretending to have WMDs. This is supported by Libya's Colonel Gadaffi volition to abandon his nuclear, chemical, missile, and biological programs. Gadaffi's decision led to the exposure of the A.Q. Khan nuclear proliferation network, which has yielded important evidence of nuclear proliferation to additional countries such as North Korea and Iran. None of this would have happened without the existence of our preemption policy and its application to Iraq.

The preemption policy is consistent with the UN's Charter and other principles of international law. In the case of Iraq, the United States had ample authority under pertinent UN Security Council resolutions to use force to compel compliance with its mandates. We expect this kind of Security Council authorization will exist in many, if not most, of the cases where we might contemplate application of the preemption policy. The doctrine of self-defense may be available to justify the use of force in cases where the Security Council has not acted.

David Rivikin
Baker & Hostetler LLP

I will focus particularly on the impact of the UN Charter on preemption policy. Some argue that anticipatory self-defense (preemption) did not survive the adoption of the UN Charter, which requires all members of the UN to refrain from the threat or use of force in international relations. This charter interpretation permits a very narrow ambit of Article 51, which allows a nation use of force only once it has suffered an attack across its frontier. In a world governed by the UN Charter, force is permitted pending Security Council action, which is the sole legitimizer of force. 
 
The Charter neither abrogated the previous existing body of international law nor abolished anticipatory self-defense; to say otherwise relies upon an implausible reading of Article 51 and other pertinent charter provisions. It also reflects an erroneous view that the UN Charter is superceded and ambitiated into every existing body of customary international law. When the Charter is looked at as a whole, limitations on the use of force are far less stringent. The Charter only prohibits the use of force in three circumstances: to seize territory, to impose particular governmental structures, and in a manner inconsistent with the purposes of the UN.

People often question Article 51 in light of Article 2 and the language regarding armed attack. If a restrictive reading of the Charter is correct, Article 51 would have been worded in an entirely different manner, as its meaning belies Article 2.  Should a nation only be permitted the use of force when its territory has been attacked, there would be no reason to discuss the use of force and its consistency with UN purposes.

There are scholars who argue that under Article 2.4, force is permitted only in a manner that is consistent with UN goals and that removing Saddam from power, given his record, was consistent with the purposes of the UN Charter. There are other people who argue the contrary: that Saddam's removal was not consistent with promoting international peace-these same critics argue that it was inconsistent with the UN Charter to remove Milosevic.

Some argue that humanitarian rescue is legal under the Charter presumably because it is always consistent with the Charter's laudable goals, but that national security interest risk-intervention is somehow illegitimate. Humanitarian intervention is fine because a nation is protecting people in another country, but national interest intervention is not okay? Why is it more legitimate to protect foreigners rather than one's own people?
 
There is also the argument that actions that are not approved by most Security Council members are illegitimate. There is no support in the Charter for this theory.

There are two main popular arguments against the restrictive reading of the UN Charter. The first is that such a reading is conceptually muddled. As a matter of law, it does not impose this restrictive model, yet this reading illuminates an inherent tension between Article 4 and Article 51 in the structure of the Charter.  The argument I agree with is that Article 51 secures a safe harbor.
 
Consider the environment. Everyone who was drafting the Charter was aware of the prosecutions at Nuremberg and the prosecutions of Tokyo, where both the Nazis and the Japanese used the self-defense arguments. At Nuremberg, the Nazis contended that Hitler's attack against the Soviet Union was really anticipatory defense because Stalin was going to attack them, and the Japanese argued that economic sanctions were strangling them. Both arguments were decisively rejected. It is not implausible therefore to argue that the real purpose of Article 51, in restating in very categorical terms one particular example on anticipatory self defense, was to create a circumstance where if you act within the purview of Article 51, you really are going to be safe even if you lose the war. If you act in other circumstances, it is not illegal, but perhaps you will be found to have violated international law and to have committed a crime of aggression. That is something that would determine the extent of your culpability.

John Yoo
AEI

The UN Charter system was designed to resemble a criminal law type system; there would be a supranational government which would try to hold a monopoly on the use of force. The problem is that major threats to national security posed today are not those of one nation state attacking another. The wars of the last ten years--i.e., Kosovo--posed no direct, imminent threat to the United States' national security.

Does it make sense to have a UN Charter system where most countries are prohibited from using force unless the Security Council, which great powers established at the end of World War II, approves? If a country does not gain this approval, it must rely on self-defense. As we saw during the Cold War, countries, including the United States, engaged in aggressive readings of what self-defense was in order to justify military actions that might not have countered direct threats to their countries. One way to change the system would be to broaden self-defense and move it more away from a standard of imminence towards an examination of the magnitude of potential harm that might arise and the probability that harm might occur: a standard that could help us confront terrorism and rogue states. With terrorism, there is no warning of an imminent attack and civilians are targeted--both characteristics that make the imminence factor much harder to evaluate.

Suppose we wanted to move to a different system than the UN Charter: what would be the goal of the new system? Just as in the domestic system, one of the goals is protection of individual security. The international system should also provide international stability and security. When a country or a group of countries provides international stability, they cannot prevent other countries from enjoying it. It is difficult to charge people for the benefits they receive from international security; therefore, there will always be a shortage of international security because no one nation will have it in their interest to ensure the full amount of international security that would be optimal.

The current design undermines international security. The UN charter system gives vetoes to superpowers to prevent intervention that could provide international stability. Wouldn't a system that encourages countries to intervene in situations where stability is being undermined be preferable?

John Bolton
Under Secretary of State

I thought it would be useful today to look at our nonproliferation policy in the context of sovereignty, and the degree to which the Bush administration has launched initiatives that do not rely on cumbersome treaty-based bureaucracies, and that work cooperatively with other sovereign states to deny rogue nations and terrorists access to the materials and know-how needed to develop weapons of mass destruction. Our policies during the past several years have shown that a robust use of the sovereign authorities we, and our allies, have at our disposal can bring about real results.

Legal Architecture to Deal with Nonproliferation. The legal authorities to deal with rogue states and actors, including terrorists, intent on obtaining WMD and their means of delivery, are numerous and varied. This administration's central innovation, which is indispensable to any successful nonproliferation effort, is the demonstrated will to use the existing authorities to obtain our goal of disarming our enemies. This is a transforming precedent.

"Forward" Policy on Proliferation. The frontlines in our nonproliferation strategy must extend beyond the well-known rogue states to the trade routes and entities that are engaged in supplying the countries of greatest proliferation concern. We are employing a number of tools to thwart WMD and missile programs, including sanctions, interdiction, and credible export controls. Most aspiring proliferators are still dependent on outside suppliers and technology. Thus, we can slow down and even stop their weapons development plans by disrupting their procurement efforts.

Proliferators are employing increasingly sophisticated and aggressive measures to obtain WMD or missile-related materials (as we have discovered from the A.Q. Khan network, Libyan WMD programs, etc.). They rely heavily on the use of front companies and illicit arms brokers in their quest for arms, equipment, sensitive technology and dual-use goods for their WMD programs. As the spotlight has shone upon the Khan network, it is clear that those involved find the loophole in a law or the weak border point, and exploit them.

Sanctions. Economic penalties or sanctions are an essential tool in a comprehensive nonproliferation strategy. Prior to September 11, there was great debate as to whether nonproliferation sanctions that were not "multilateral" should be imposed at all. The imposition or even the mere threat of sanctions by sovereign states can be a powerful lever for changing behavior, as few countries wish to be labeled publicly as irresponsible. Sanctions not only increase the costs to suppliers, but also encourage foreign governments to adopt more responsible nonproliferation practices, and ensure that entities within their borders do not contribute to WMD programs.

This administration imposed WMD-related sanctions thirty-four times in 2002, twenty-six times last year, and thirteen times so far this year. Compare that with the average number of nonproliferation sanctions passed per year during the last administration--eight--and you will see that this administration is very serious about using sanctions as a nonproliferation tool.  We are not just increasing the number of countries with sanctions, but also looking for proliferation wherever it exists.

Companies around the world have a choice: trade in WMD materials with proliferators, or have normal trade with the United States--but not both. Where national controls fail, and when companies make the wrong choice, there will be consequences. U.S. law is clear, and we are committed to enforcing these laws to their fullest extent.

New International Mandate. In his September 2003, speech to the UN General Assembly, President Bush proposed that the Security Council pass a resolution calling on member states to criminalize WMD proliferation, enact export controls, and secure sensitive materials within their own borders. The administration worked over the course of eight months to craft what became the unanimously adopted Security Council Resolution 1540, achieving all of the goals set out by the president. There is now a system of accountability such that countries that are not tightening their export controls are subject to scrutiny, prosecution, and penalty.
 
We continue active diplomatic efforts with like-minded states in the multilateral export control regimes. While the export control regimes are an important tool in stemming proliferation from advanced nations, trade between proliferant countries continues, and often outside the control of countries participating in these regimes. We are therefore urging suppliers in each of the groups not simply to look to the letter of their commitments, but to exercise maximum vigilance against efforts by proliferators to procure items that would assist countries to become self-sufficient in producing WMD and their means of delivery.

The Proliferation Security Initiative.  In 2002, the President released his National Strategy to Combat WMD, which contained the seeds of the Proliferation Security Imitative (PSI). The strategy emphasized enhancing the capabilities of our military, intelligence, technical, and law enforcement assets to prevent the movement of WMD materials and technology to hostile states and terrorist organizations. PSI reflects the reality that, even as we continue to support and strengthen existing nonproliferation regimes, proliferators and those facilitating the procurement of deadly capabilities are circumventing existing laws, treaties, and controls against WMD proliferation. The unanimous passage of UN Security Council Resolution 1540 establishes clear international acknowledgement that active cooperation, such as PSI, is both useful and necessary.

The Global Partnership. Another important administration initiative is the Global Partnership Against the Spread of Weapons and Materials of Mass Destruction, launched by the Leaders of the G8 at the Kananaskis Summit in June, 2002. G8 leaders pledged to raise up to $20 billion (half of which the United States will contribute) over ten years for projects to prevent dangerous weapons and materials from falling into the wrong hands. Last year the G8 welcomed the participation of six additional donor countries--Finland, the Netherlands, Norway, Poland, Sweden, and Switzerland--and this year an additional seven--Australia, Belgium, the Czech Republic, Denmark, Ireland, New Zealand, and South Korea.

The United States already has nonproliferation projects underway not only in Russia but in Ukraine, Kazakhstan, Uzbekistan, Georgia, and other FSU states, as do other Global Partnership countries. The United States has recently begun assistance in Iraq and Libya. We are encouraging our partners to undertake their own projects in states worldwide. Our goal is to reduce to an absolute minimum international commerce in weapons-usable uranium throughout the world.

At the most recent G8 summit, the president laid out several areas in which additional action is urgently needed, including addressing the proliferation problems inherent in countries seeking to acquire the complete nuclear fuel cycle and the need for expanded export controls worldwide. In an Action Plan on Nonproliferation, G8 leaders agreed upon a number of steps, such as strengthening PSI and the Global Partnership, and working together to address the threat posed by the DPRK and by Iran.

The Use of Force. In the WMD field, we have gained enormous and even decisive credibility from our actions in Iraq. We have also learned that what we need to fear most in WMD proliferation are not pieces of metal and stocks of supplies, but intellectual capital.

Muammar Gadaffi's decision to surrender his weapons of mass destruction programs came in direct consequence of our actions in Iraq and the successful operation of the Proliferation Security Initiative, and the broad political and economic pressures we brought to bear over the preceding decade in favor of our counterterrorism and counterproliferation objectives.

Iran's adherence to the deal it cut with Britain, France and Germany for a suspension of its programs has been made more likely by the readiness of the United States to act, a source of real-world leverage that even the Europeans privately acknowledge to be useful. In fact, much of this has been accomplished not by threatening the use of force against Iran, but merely by calling for Iran's nuclear program to be placed on the agenda of the Security Council. Our demonstrated willingness to act decisively provides the decision makers in Pyongyang with useful instruction in the rules--and consequences--of this new world. G8 Summit leaders expressed their strong support for the talks and urged the DPRK to dismantle all of its nuclear weapons-related programs in a complete, verifiable, and irreversible manner as a fundamental step to facilitate a comprehensive and peaceful solution.

This President has begun to lay the foundation for a comprehensive, root-and-branch approach to the mortal danger of the proliferating instruments of our destruction. We are only at the beginning, but it is an extraordinary beginning. Everyone in this country, owes this administration thanks for its efforts to stop the spread of these deadly weapons; the outcome of this battle may be nothing less than the chance to survive.

Eric Posner
University of Chicago

Do the rules of war actually make war more humane? Sometimes the use of force is good, and the laws of war interfere with the use of legitimate force. What are the natural limits to the laws of war? One must examine whether or not the rules are enforceable. There is nobody to enforce the laws of war in the way a sovereign state can. In practice, they are enforced through a decentralized fashion. Thus, there will be limits on what their natural content can be.

Symmetry condition. A law of war cannot provide strategic advantages or disadvantages to either side; it must maintain its neutrality.

Reciprocity. The laws of war can be enforced in only a decentralized way. One obeys out of fear the other may retaliate. Both must want to limit the war and are able to punish the state for infraction. When reciprocity is not met, the rules of war are violated.

Should the United States regard al Qaeda and other terrorist organizations as states so the laws of war would apply?

Some argue that if we use restraint, they will reciprocate and be less brutal. Yet, the conditions are not met in this example. The symmetry condition is not met, as al Qaeda does not have the resources. Al Qaeda and the United States are not likely to come to a deal; thus the reciprocal condition is likely not to be met.

Gabor Rona
International Committee of the Red Cross

There are two categories to armed conflict: international and internal armed conflict. There are certain actions that are lawful during conflict that are prohibited in times of peace.

Some critics of the laws of armed conflict maintain that the traditional framework of criminal law, interstate legal cooperation, and international law are insufficient to handle terrorism, and that is why they maintain certain international laws of armed conflict must be borrowed in handling internal problems. 

Expanding the right to kill and detain beyond situations that truly amount to the threshold of armed conflict is a way of weakening both liberty and security. War exists when armed conflict takes place, not just when it is declared. The laws of war can only be applied when there is actual armed conflict; otherwise people should be governed by domestic and international criminal and human rights laws.
 
The laws of armed conflict afford rights and impose responsibility on warring parties. Terrorism cannot be a party to an armed conflict. There is no definite beginning or ending to terrorism.
 
Under the Geneva conventions, both prisoners of war and civilians can be subject to detention without due process. Both can also be detained, and civilians can be prosecuted for the mere fact of partaking in war activity. In the case of both civilians and POWs, if they have committed war crimes, they are both equally prosecutable. What then are the benefits of denying terrorists suspects of coverage by the Geneva conventions in armed conflict?
 
Where does the claim lead that you should be able to target citizens any time? When situations cannot really be classified as armed conflict, to detain people and proclaim the right to target them is an application of the rules of armed conflict that is not justified by the rules of armed conflict.
 
One of the motivations behind the laws of armed conflict is the rule or reciprocity. Al Qaeda does not follow these conventions, so what is the incentive of us following?  Mistreatment of individuals in situations of detention does not prevent terrorism. There is no logical reason to deprive certain individuals in custody of the rights of law for the simple reason they might not supply them to you.
 
Should the United States treat al Qaeda as a state so that the laws of armed conflict would apply? The laws of armed conflict apply to terrorist groups because that is what international humanitarian law says. The idea that we would only apply laws of armed conflict to groups that are states misses the half the equation.
                 
Ruth Wedgwood
John Hopkins University School of Advanced International Studies

The nature of democracies is to have moral systems and principals. Moral self- justification is very important for the military.

What to do about interrogation? Entrenchment matters. There are parts of the third Geneva Convention that do not fit well. If you are unable to jail someone but suspect he will kill you once he returns to his camp, you have a problem. If you cannot use a positive incentive system for the interrogation of criminals, giving rewards to those who cooperate with you in shutting down a criminal enterprise, that is problematic. We should be aware of the radical change were we to say we could use force to acquire information to stop attacks. We have never made the claim that you could legally use force to gain information from someone.

 The United States must not lose sight of its coordinate legal obligations, as not all international law has been transformed into domestic law. Even if you take any executive act as misplacing the internal effect of customary law, one should not ignore or deride its external effect. Most international law has been customary in our country. One ought not to confuse internal domestic legal prohibition and external legal obligation.

We have never used the term self-defense to mean anything other than repelling the enemy by military means. We have never used it to coercively gain information by violent means.

AEI intern Victoria Shapiro composed this conference summary.

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