Reviewed by Walter J. Kendall III, The John Marshall Law School, Chicago, Illinois. Email: 7kendall [at] jmls.edu.
STRETCHING THE RULES; BREAKING THE LAW; OR NEITHER?
Professor Henderson’s book could not be more timely. The United States has killed Osama bin Laden in questionable circumstances, and it played a significant role in formulating U.N. policy towards the Qaddafi regime in Libya. Each may well influence the understanding of international law.
Professor Henderson, whose book title is a riff on the customary international law concept of “persistent objector,” studies in a detailed chronological way the engagement of the U.S. with the sources of international law especially in the “Iraq context.” In this context he sees the U.S. as a “persistent advocate” of the unilateral determination of authority to use force, and also of the enlargement of the concept of self-defense.
In the Foreword Nigel White asserts Henderson sees 1947 U.N. consensus as “dated.” White sees the heart of the book as an argument against unilateralism and for a consensus developed by an inclusive interpretive community as the source of international norms. Henderson himself sees the U.S. as a hegemonic unilateral force affecting this interpretive community. The question he asks is whether it thereby has changed the law of jus ad bellum. After presenting the text book understanding of the law on the authority to use force and self-defense he critically presents U.S. thinking and actions in these areas since the end of the Cold War. He concludes his thoroughly researched and subtlly argued book by answering his question “not yet.”
It must be emphasized that neither the book nor the review addresses the very contentious questions around the U.S. constitutional allocation of the war power.
Henderson considers the consensus sources of international law as set out in Article 38 of the statute of the International Court of Justice
- international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
- international custom, as evidence of a general practice accepted as law;
- the general principles of law recognized by civilized nations;
- subject to the provisions of Article 59, judicial decisions and the teachings of the most qualified publicists of the [*365] nations, as subsidiary means for the determination of rules of law.
Thus international law has two intrinsic structural features, making it always unsettled: it is “decentralized”; and lacking a centralized adjudicator, it is “auto-interpretative.” In addition to relying on the traditional rules regarding interpretation of treaties and U.N. Security Council resolutions and the modification of customary international law Henderson adopts Stanley Fish’s concept of an “interpretive community.” Henderson accords the UNSC and States primacy, but also includes “all individuals, entities, groups, or organizations that possess an interest or expertise in connection with the particular expertise” or issue being considered in the secondary interpretive community. He acknowledges the difficulty of identifying the content of a positive agreement among such diverse and diffused institutions and sources. Rather he argues it is feasible to identify negative intersubjective agreements, that is, “agreements” rejecting proposed interpretations. The kind of reaction and subsequent practice he considers indicative of a negative intersubjective agreement about changes in law that the U.S. has persistently advocated include:
- If after either expressly or implicitly proposing a change to the law, the US then, in similar subsequent circumstances, fails to act in a similar way thereby failing to support the proposed modification.
- If traditional or contemporary allies of the US are unsupportive to the proposed modification.
- If states that engage in subsequent uses of force in situations in which the proposed modification could be relied upon fail to do so in justifying their actions.
- If organizations which represent significant numbers of states expressly reject a proposed modification.
As regards authority to use force Henderson scrutinizes the U.S. arguments and actions towards Iraq subsequent to UNSC Resolution 678 in 1990. Resolution 678 authorized member States to use “all necessary means” to implement Resolution 660 calling for an immediate and unconditional withdrawal of Iraq forces from Kuwait. He specifically criticizes the U.S. claim that subsequent Resolutions imposing disarmament obligations could be unilaterally enforced on the basis of the authorization in 678 as an act of collective will.
As originally envisioned and provided for in the U.N. Charter the use of force or the threat of force by Member States was prohibited except in self-defense. The UNSC was given “primary responsibility for the maintenance of international peace and security,” and it was anticipated that the Security Council would have its own army to discharge that responsibility.
Cold War era realities made it clear very early on that Article 43(1) would not be implemented. Nevertheless the Security Council was not completely dormant or paralyzed by the veto provision. Henderson points out it did recognize a threat to international peace and security seven times, label state action as aggression twice, determine that there [*366] had been a breach of the peace three times, employ non-military sanctions twice, and use military force three times. In the three instances of the authorization of the use of military force (North Korea in 1950, the Congo in 1960, and Southern Rhodesia in 1966) the Security Council “authorized” member states to do so in its name.
Since the end of the Cold War the U.N. has been much more active. Among the instances Henderson mentions or discusses in developing his arguments are Somali, Rwanda, Albania, East Timor, Haiti, Bosnia and Sudan. From these and other post-1989 practices “it becomes apparent that the authorization technique has become generally accepted and employed.” However, one consequential result has been “unilateral” interpretation of the UNSC authorization by the authorized nation or nations.
Henderson concludes that while the U.S. arguments in support of its actions in the “Iraq context” in 1993 (enforcement of the no-fly zone), 1998 (Operation Desert Fox), and 2003 (Operation Iraqi Freedom) were in other’s words “sophisticated … legally tenable and defensible … (and) impressively concise and cleverly argued” ultimately its unilateral revivalist position has not been accepted. Specifically its “proposed trigger concepts of ‘material breach’ and ‘serious consequences’ have not displaced or supplemented the current common understanding of the need for more specific and clearly expressed collective authorization to “revive” prior specific authorizations to use force.
Henderson also reviews U.S. unilateral claims of authority to enforce the collective will of the international community. The humanitarian situations in the former Yugoslavia and Sudan and the threat to peace from nuclear non-proliferation (i.e., Iran and North Korea) are discussed in detail. While these situations may be thought to manifest an inherent call to action, there are no obvious answers to the questions of when, what kind, and by whom.
Henderson summarizes a range of “secondary interpretive community” understandings of what international law permits and requires in such circumstances including The 2001 Report of the International Commission on Intervention and State Sovereignty which sets forth a “responsibility to protect … that sovereign states have a responsibility to protect their own citizens from … mass murder and rape, from starvation – but when they are unwilling or unable to do so, that responsibility must be borne by the broader community of states” (p.). By 2005 the primary interpretive community had committed to a both procedurally and substantively narrowed understanding of such responsibility. According to the U.N. World Summit Outcome Document nation states will “take collective action, … through the Security Council, in accordance with the Charter … on a case-by-case basis … should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity.”
Recent actions in Libya appear to be consistent with Henderson’s conclusions about claims of authority to enforce the collective will. While in a strict legal sense, that is, an established and [*367] consensus sense, correct procedures and interpretive principles may not have been followed “enforcing the collective will within the boundaries of intersubjective agreement (“a process of shared understanding … emerging from a deliberative process …”) but without an authorizing resolution has been acceptable … but unilateral enforcement has not” (e.g., U.S. and NATO use of force in Kosovo in 1998).
The area where the U.S. has had the most significant impact on international law since 1990 has been that of self-defense. It is universally recognized that the use of force in self-defense is permissible. In addition to the conditions and limitations in Article 51 of the Charter, the customary international law principles of necessity, proportionality, and immediacy apply.
One of the questions raised by the September 11, 2001 attack on the U.S. is what actions of non-state entities are attributable to states. Under the traditional rules such acts are attributable if: the entity has been ‘sent by or on behalf of a state’; or the entity is acting ‘on the instruction of, or under the director or control of a state’; or the territorial state ‘acknowledges and adopts the conduct in question as its own.’
As with all legal norms there are critical interpretive questions. In the Nicaragua case the ICJ wrote of “effective control” as the standard, while the ICTY opted for the standard of “overall control.”
What of “active support”? This is a concept argued about as to its meaning in the context of self-defense (active support was held by the ICJ not to be an “armed attack” justifying self-defense). As to what constitutes active support, see the Declaration on Friendly Relations which states that ‘no state shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another state, or interfere in civil strife in another state.’ And what is the appropriate response (traditionally only non-forcible countermeasures are permissible in response in such circumstances)?.
In 1993 in response to what it described as “clear compelling evidence” that Iraq attempted to assassinate President Bush the U.S.launched a missile attack against Iraq’s Intelligence Headquarters. In 1998 in response to attacks on its embassies in Kenya and Tanganyika the U.S. relying on “convincing evidence that further such attacks were in preparation from these … terrorist facilities” launched missile attacks against terrorist training camps in Afghanistan and pharmaceutical plants” in Sudan. In this regard, the U.S. claimed that Afghanistan and Sudan were responsible in “failing to shut these facilities down and to case their cooperation with the Bin Laden organization.” And after September 11, 2001 the U.S. more broadly justified its attack on the Taliban and Afghanistan by asserting that they were “harboring” some of the responsible terrorists. Despite its reach, the U.S. claims and massive military actions in these circumstances received almost universal support. The Security Council itself recognized its legitimacy in Resolution 1368.
Did these U.S. actions and their substantial base of support broaden the international law of self-defense? [*368] Henderson argues that the answer depends on how these actions were considered by the interpretive community. Since 2001 there have been other incidents where claims of self-defense have been made, all of which Henderson briefly discusses: Russia/Chechen Rebels/Georgia (2002); Israel/Islamic Jihad/Syria (2003); Israel/Hezbollah/Lebanon (2006); Turkey/PKK/Iraq (2008); Columbia/FARC/Ecuador (2008). Additionally, the Security Council and the ICJ, as well as many of the “most qualified publicists” have addressed the issues around self-defense especially the standards for attribution. After discussing these incidents and opinions Henderson concludes “Operation Enduring Freedom remains the only incident where the international community accepted the use of force against non-state actors and the harboring state.”
Perhaps the claim that is most destructive of the U.N. regime’s efforts to maintain peace and security is the U.S. claim of a unilateral right of pre-emptive self-defense. “‘Pre-emptive’ self defense is that used to destroy a threat that a state perceives as possibly coming to fruition at some point in the future. This should be contrasted with that which is ‘anticipatory’, that is self-defense in situations where there is the imminent prospect of an attack. The main difference between these types of action is the temporal nature of the threat which they are responding to.”
Does a state have to have been attacked before its right of self-defense is triggered? Or can it respond when there was an imminent threat? While the U.N. Charter requires an “armed attack” customary international law seems to have accepted “anticipatory” self-defense relying on the CAROLINE incident on the Great Lakes involving Britain and the U.S. in 1837. It was agreed between the parties then that if there was a “necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment of deliberation (and if nothing) unreasonable or excessive” was done, anticipatory self-defense was legal.
After September 11, 2001, Vice President Dick Cheney argued for a right of preemptive self-defense. His view was that even if there’s just a 1% chance of a similar event occurring the U.S. should act as if it were a certainty. After reviewing opinions and reactions of individual nations, both allies and critics of the U.S.; of the U.N. and its various agencies; and of the ICJ in cases involving “self-defense” (Oil Platform and DRC v. Uganda cases, and the Wall advisory opinion) Henderson concludes the concept of anticipatory self-defense has found “much support … the doctrine of pre-emption was a different matter … it is clear that it was perceived as a sharp break” (p.)
Henderson ends his Postscript about the early actions and speeches of the Obama administration with a hopeful affirmation of the strength of international law that while “it appears that the perception of the U.S. as a persistent advocate lives on, as this book has demonstrated, its success [in challenging the U.N. prohibition on the use of force] is far from guaranteed”!
Coincident with writing this review The NEW YORKER published an essay by Ryan Lizza on President Obama’s [*369] foreign policy. Its concluding paragraph suggests that despite the to and fro between real politic and law (between targeted assassination of bin Laden and the collective U.N. Security Council authorized use of force in Libya), U.S. policy may be less persistent in its advocacy of the unilateral use of force:
Obama may be moving toward something resembling a doctrine. One of his advisers described the President’s action in Libya as “leading from behind.” That’s not a slogan designed for signs at the 2012 Democratic Convention, but it does accurately describe the balance that Obama now seems to be finding. It’s a different definition of leadership than America is known for, and it comes from two unspoken beliefs; that the relative power of the U.S. is declining, as rivals like China rise, and that the U.S. is reviled in many parts of the world. Pursuing our interests and spreading our ideals thus requires stealth and modesty as well as military strength. “It’s so at odds with the John Wayne expectation for what America is in the world,’ the adviser said. “But it’s necessary for shepherding us through this phrase.”
© Copyright 2011 by the author, Walter J. Kendall III.