by Lindsay Moir. Oxford and Portland, Oregon: Hart Publishing, 2010. 192pp. Hardback. $70.00/ £35.00. ISBN: 9781841136097.
Reviewed by Scott Nicholas Siegel, Department of National Security Affairs, Naval Postgraduate School. Email: snsiegel [at] nps.edu.
Many commentators have suggested that everything changed after the terrorist attacks of September 11, 2001. Al-Qaeda’s ability to carry out massive attacks on US territory, leading to the deaths of nearly 3000 people, for some meant that the tenets of classic international law were obsolete in an age of global terrorism. Lindsay Moir’s monograph successfully challenges these conclusions. Instead, the author shows how the rules governing the conditions under which states can use force have not substantially changed since 9/11. In fact, the rules on declaring war have become strengthened.
Moir’s central argument, based on a careful legal analysis, is that states cannot rely on the UN Charter’s right to self-defense or other elements of public international law to attack another state preemptively. This is true even when such threats emerge from private armed groups. There is nothing unique about non-state actors and the nature of their threat that suggests the justifications for the use of force requires departure from established legal tradition. Moir’s analysis is limited to the legal questions surrounding the use of force. From a political perspective, however, the book eschews any discussion of why justifications for the use of force changed after 9/11. Was it because of inherent threats to a state’s security or the result of rational self-interest given a government’s policy motivations? Or were the attacks of 9/11 so traumatic that some of the world’s leaders attempted to devise novel legal justifications for why they chose primarily the use of military force to combat terrorism? While a superb legal exegesis, the book raises a series of political questions that remain wholly unanswered.
The late Louis Henkin once stated, “Almost all nations observe almost all principles of international law and almost all of their obligations all of the time” (Henkin 1979, p.47). But noncompliance still occurs often. Moir wishes to argue that the US’s two main military missions after 9/11, in Afghanistan under Operation Enduring Freedom (OEF) and in Iraq under Operation Iraqi Freedom (OIF), are such cases. Whether they were unlawful is the central focus of Moir’s analysis. But the motivation for his questions is also political. Engagement with this topic appears to be for two reasons. First, he wants to add his own voice to the strong opposition to the war in Iraq. Second, and following this claim, he wishes to reassert the relevance of international law in governing the affairs of states. It bears emphasizing, however, that Moir’s own political motivations do not interfere or affect his careful, persuasive [*677] analysis of whether these two military operations were lawful.
Moir’s analysis begins with an exegesis of the state of the law as it stood before 9/11. Article 2, §4 of the UN Charter stipulates that states are prohibited from threatening or using force that jeopardizes the territorial integrity or political independence of another state. The exceptions are for cases of self-defense, which is permitted under Article 51 of the Charter and is recognized as a fundamental right of states. But what constitutes an attack? How do we know a state’s actions in response are in self-defense? Are there any limits on what those actions may entail?
Moir quickly dismisses the arguments that states can use force in self-defense in anticipation of an attack. Judges and legal scholars interpret Article 51 rather narrowly. Military action in self-defense could only occur if an attack by another was actually imminent. That is, the use of force for self-defense may only happen if an attack was being launched; defensive measures were the only way to guard against it; there is no practical alternative; the actions for self-defense are limited in scope and severity; or a state has requested immediate assistance from the international community. There are disputes at the margins over what is immediate versus anticipatory. Examples of such disputes include Israel’s actions during the 1967 Six Day War and its attack on the Osirak nuclear reactor in Iraq in 1981. Nevertheless, Moir argues that there is a broad consensus that a doctrine of preemption, let alone preventive war, is not permitted under the UN Charter or customary international law. Of course, what qualifies as “imminent” in the face of today’s type of international terrorism is hotly debated.
What of self-defense when non-state actors are attacking? This is where the international legal community, namely the International Court of Justice, and states appear greatly divided. In the NICARAGUA case (1986), the Court ruled that the Nicaraguan government’s implicit support for rebels attacking Costa Rica, El Salvador, and Honduras did not meet the threshold that justifies military acts of self-defense. It is unclear where exactly that threshold lies and when we know it is crossed. As a result, the criticism of the ruling by national governments was severe, because each state perceived the ruling as highly impractical. Most governments have tolerated retaliation by the states attacked by such private groups. What is in greater dispute among governments is whether the force used in self-defense is proportionate to the aims sought.
Who authorizes the use of force in cases of self-defense? Moir persuasively argues that Article 39 of the UN Charter stipulates that only the Security Council can determine whether there has been a breach in the peace and decides what actions are necessary to restore peaceful relations. The Security Council has a wide degree of discretion in determining both when a clear threat to the peace exists and what measures are needed in response when adopting a resolution. Yet, the resolutions are usually the product of political compromise and careful parsing of language. The Security Council also authorizes UN members explicitly to use military force. Combined with the ambiguous threshold of violence that would permit the use of [*678] force in self-defense, it is unsurprising that the legal debate over US military operations after 9/11 centered on these two issues.
In the next two chapters, Moir carefully applies these legal findings to both the wars in Afghanistan and Iraq. He finds good grounds to question their lawfulness. First, armed insurgents within Afghanistan, not the Taliban, attacked the US. Therefore, under NICARAGUA, the US had no justification for attacking or even removing the Taliban from power. The Taliban had no control over the group, which is defined as directing a group’s activities, not whether an armed group is operating in a state’s territory with implicit consent. Second, once Flight 93 crashed in a field in Pennsylvania, the attacks had stopped. There was no immediate threat of additional ones. Third, the forced removal of the Taliban regime was also disproportionate to the aims sought to be achieved, which was the capture or elimination of Osama bin Laden and other members of Al-Qaeda. Of course, none of these legal conclusions would have mattered to the United States government at the time.
One possible legal justification for toppling of the Taliban regime Moir does put forward is the regime’s repeated violations of UN Security Council resolutions demanding the surrender of Al-Qaeda members to the US or international courts. Noncompliance with UN resolutions would also become the chief legal basis for the United States’ case for attacking Iraq. But Moir meticulousl y unpacks the arguments of both the United States and the United Kingdom that military intervention was permissible under UN Resolutions 678, 687 and 1441. Unsurprisingly, Moir finds little legal or logical support for their argument. (A memo written by then-Attorney General Lord Peter Goldsmith to Prime Minister Tony Blair, released through the Chilcot Commission’s investigation concerning the war in Iraq, shows that British officials themselves were not convinced that there was a legal basis for the war.)
Widespread opposition in the world community to the war in Iraq and the Bush administration’s clear manipulation of intelligence to justify the war helped cast doubt on the revolutionary legal interpretations of the laws of war US officials constructed to justify the war in Iraq. This reticence to accept the Bush administration doctrine of preemption was not just a function of the world public opinion against its contempt for international law. It also reflected the fear other governments had if this legal doctrine became fully accepted as a fixture of customary international law. If broadly accepted, other states could justify their own military interventions, unleashing chaos in the international system. For the sake of world order, most governments did not accept these revolutionary legal concepts. Thus, Moir is correct to conclude that there should be little concern that a new doctrine of preemption or, more precisely, preventive war has now supplanted classic principles of international law.
What is less clear is what constitutes self-defense when facing a threat by armed private groups operating across international borders. The level of destruction the 9/11 terrorists unleashed on the United States raises doubts about whether the high evidentiary standards [*679] earlier ICJ rulings, such as NICARAGUA, can and must be met before a state chooses to disarm or eliminate private actors operating in another country’s territory. Proving that a state is actively supporting a non-state violent group to justify armed intervention is unrealistic in the light of the great harm these groups can inflict in such a short amount of time. But the fears of the effects for international stability by responding constantly with only the use of military force still preclude governments from quickly responding solely with this tool of statecraft. This may explain why India refrained from responding militarily to the Mumbai terrorist attacks after the perpetrators were discovered to have close ties to terrorist groups operating in Pakistan.
What is missing from Moir’s analysis, however, is the politics behind these attempted changes to the laws of war. Reviewing the case law, it is curious that Israel and the United States are the perennial suspects accused of violating international law. Why would the United States, the largest and most powerful state in the international system, and Israel, a small country in a very hostile neighborhood, both be regularly appearing as respondents in the cases of international law? Part of the reason is surely that their opponents, the states under attack, are seeking whatever rhetorical and normative tools are available to them to curtail their actions. But both countries have also demonstrated at least a problematic record of abiding by the norms of international law, especially in regards to the use of force. For example, in the US there is a powerful conservative stream of legal thought that perceives a limited role for international law in shaping state practice. It is the ascendance of this school of thought domestically that explains why Moir’s book even became necessary.
The skepticism or even contempt these countries have for international law may simply be the result of being constant targets of violent action. But, in the wake of the attacks of 9/11 and their aftermath, the available evidence shows that military responses to these threats are not the most effective methods of preventing them. Thus, there is no practical necessity to revise the laws of war. Instead, how these two countries have reacted to international terrorism and the culture of fear that emerged afterwards seems to be driving these intellectual endeavors to change the laws of war. We need to better understand these dynamics. When we do, we will not just be able to determine whether changes to the laws of war are necessary. We will also be more effective at preventing future violations of the laws of war by having strong legal norms and arguments to which we can turn to stop unlawful actions from happening again.
Henkin, Louis. 1979. HOW NATIONS BEHAVE. New York: Columbia University Press.
CASE CONCERNING MILITARY AND PARAMILITARY OPERATIONS IN AND AGAINST NICARAGUA (NICARAGUA v. UNITED STATES OF AMERICA), ICJ Reports (1986) 14.
© Copyright 2010 by the author, Scott Nicholas Siegel.