Cover

Preparations for evening flight operations

on board the aircraft carrier USS Harry

S. Truman (CVN 75) in March 2005.

U.S. Navy photo by Photographer’s Mate

Airman Ryan O’Connor.

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The Regulation

of International Coercion

Legal Authorities and Political Constraints

NAVAL WAR COLLEGE PRESS

Newport, Rhode Island

James P. Terry

© 2005 by James P. Terry

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Naval War College

Newport, Rhode Island

Center for Naval Warfare Studies

Newport Paper Twenty-five

October 2005

President, Naval War College

Rear Admiral Jacob L. Shuford, U.S. Navy

Provost/Dean of Academics

Professor James F. Giblin, Jr.

Dean of Naval Warfare Studies

Dr. Kenneth H. Watman

Naval War College Press

Editor: Dr. Carnes Lord

Managing Editor: Pelham G. Boyer

Telephone: 401.841.2236

Fax: 401.841.1071

DSN exchange: 948

E-mail: press@nwc.navy.mil

Web: www.nwc.navy.mil/press

Printed in the United States of America

The Newport Papers are extended research projects that the

Editor, the Dean of Naval Warfare Studies, and the

President of the Naval War College consider of particular

interest to policy makers, scholars, and analysts.

The views expressed in the Newport Papers are those of the

authors and do not necessarily reflect the opinions of the

Naval War College or the Department of the Navy.

Correspondence concerning the Newport Papers may be

addressed to the Editor of the Naval War College Press. To

request additional copies, back copies, or subscriptions to

the series, please either write the President (Code 32S),

Naval War College, 686 Cushing Road, Newport, RI

02841-1207, or contact the Press staff at the telephone, fax,

or e-mail addresses given.

ISSN 1544-6824

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Contents

Foreword, by Carnes Lord 

Introduction 

PART ONE: THE CHANGING NATURE OF THE THREAT TO NATIONAL SECURITY 

CHAPTER ONE Customary Law: The Relationship

between Law and the Use of Force 

CHAPTER TWO The Minimum World Order System 

PART TWO: LESSER CONFLICT 

CHAPTER THREE Humanitarian Intervention 

CHAPTER FOUR Defense of U.S. Nationals:

Intervention in Panama 

CHAPTER FIVE Response to International Terrorism 

PART THREE: MAJOR CONFLICT 

CHAPTER SIX Operation DESERT STORM 

CHAPTER SEVEN Operation IRAQI FREEDOM 

PART FOUR: U.S. POLICY FOR PEACE OPERATIONS 

CHAPTER EIGHT The Development of Criteria

for Peace Operations 

CHAPTER NINE The Role of Regional Organizations in

Peace-Enforcement Operations 

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CHAPTER TEN Defense of Critical Infrastructure:

Computer Network Defense 

CHAPTER ELEVEN Attacks on Foreign Infrastructure

That Pose a Threat to the United State

Computer Network Attack 

Observations and Conclusions 

About the Author 

The Newport Papers 

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Foreword

The study of international law has been an element of the curriculum of the Nav

College since the founding of the College, and it was to fill the need for textbook

cusing on practical, law-related naval issues that the College published its first bo

1895. That work—a collection of edited and expanded lectures given in Newport 

Freeman Snow, professor of international law at Harvard, published as Internatio

Law: A Manual Based upon Lectures Delivered at the Naval War College—was sem

two ways. First, it was for its compiler, Commander Charles Stockton of the Nava

College’s faculty, that the College’s prestigious chair in international law is name

ond, the book itself, which was soon canonical, was the forerunner of the Interna

Law Series, of which seventy-nine volumes by, or collecting the work of, major sc

have appeared, with more in preparation.

The Naval War College Review in its time took up the challenge. In the May 1949 

(Information Service for Officers, as it was first known, having been founded only 

tober 1948), its editors published “Legal Foundations of International Relations,” 

Manley O. Hudson. At this writing, the index of the journal contains seventy-one 

tries under the heading “International Law,” and the continual flow of manuscrip

from international lawyers testifies that the Review is well established in that field

no surprise, then, that when the Naval War College Press established the Newpor

pers monograph series in the early 1990s, international law quickly found a pla

there. The third Newport Paper, published in October 1992, was Horace B. Robe

Jr.’s, The “New” Law of the Sea and the Law of Armed Conflict at Sea; the eleventh, b

Frank Gibson Goldman, was The International Legal Ramifications of United States C

Proliferation Strategy: Problems and Prospects (April 1997), and number fifteen w

ternational Law and Naval War: The Effect of Marine Safety and Pollution Conven

during International Armed Conflict, by Dr. Sonja Ann Jozef Boelaert-Suominen 

cember 2000).

So it is with particular satisfaction that we sustain that commitment with this N

port Paper, the twenty-fifth in the series, and the first of our 2006 program. Jam

Terry—a former Principal Deputy Assistant Secretary and Deputy Assistant Secr

of State; former legal counsel to the chairman of the Joint Chiefs of Staff, then G

Colin Powell; a retired colonel, U.S. Marine Corps; and today chairman of the B

of Veterans’ Appeals, in the Department of Veterans Affairs—is familiar to Pres

scribers as the author of four articles (going back to 1986) in the Review. In Th

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assessment—from a U.S. policy perspective and in an international-law framework—

of “representative instances where force has recently been used in international relations, the circumstances under which it was used, the instructive international policy

and legal constructs that can be applied, and the relationship of these policies to the

minimum world order system established in . . . the United Nations Charter.” He is eminently fitted to meet the challenge, and the value of his argument befits the centurylong tradition of publishing in international law at the Naval War College.

CARNES LORD

Editor, Naval War College Press

Newport, Rhode Island

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Introduction

The most significant discourse about serious threats to U.S. national security in t

twenty-first century will likely concern the military capabilities and intentions of

nonstate actors, acting either for themselves, for religious elites, or as surrogates 

state sponsors. This preoccupation results not from any inordinate fear of “terro

but from a recognition of objective military and political realities. While prior to 

only the Soviet Union possessed the capacity to inflict catastrophic military destr

on the United States, today that threat is vested in terrorist cells and religious sec

seek to destroy the fabric of the United States through unconventional military a

paramilitary means. The terrorist attacks of 11 September 2001 bear this out.

During the Cold War, the major threat to the United States was clearly the fear of m

culation by the Soviets. Today, that threat has been recharacterized in terms of delib

aggression against the United States by nontraditional actors willing to take suicida

to inflict premeditated, brutal savagery on innocent civilians in a manner designed 

force not so much regime change directly as policy changes that affect regime chan

Commitment to national security is only as valid as the policies and plans, milita

economic, and political, that shape the areas and people from which these threat

nate. The problem always has been to determine which policies, and how applied

the greatest contribution to countering the threat—a threat now represented by 

and religious systems that foster or at least condone aggressive response to differ

ligious and social values. This has never been more true than in Afghanistan and 

Iraq. Security, then, means more than simply protecting the land on which we liv

embraces a comprehensive understanding of the appropriate response to human 

rations for improved conditions of life, for equality of opportunity, and for justic

freedom. Where these interests are thwarted for peoples or groups within a parti

state or region by armed protagonists representing narrow, restrictive interests, o

sponse must be one measured by the effective institutionalization of order.

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clude a review of the principles of legal justification, the legal criteria for self-defense, and

the policy of deterrence followed by the United States. It then examines the characteristic

differences between the interpretive approaches taken by national and nonnational entities in their respective claims and counterclaims during international crises.

Chapter 2, which concludes Part I, is focused on the historical aspects of the minimum

world order system, which today comprises the prohibition against the use of force by

one state against another embodied in Article 2, paragraph 4, of the United Nations

Charter, with the exception inherent in customary international law and in Article 51

of the Charter that every state is authorized to use force in self-defense. A review of the

pre-Charter system focuses on the development of the nation-state and the threads of

international law development leading to multilateral agreements vice solely bilateral

accords. The period following World War I, with the emergence of the League of Nations, is examined for its significance as an important source of the Charter of the

United Nations. The structuring of the Charter is then addressed in terms of the concept of aggression and lawful response to aggression. Chapter 2 concludes with a review of the law of self-defense as defined first under customary international law and

then under the UN Charter.

Part II addresses lesser conflicts. Chapter 3 addresses instances where intervention is

authorized in defense of humanitarian values defined in the UN Charter. The recent

humanitarian interventions in the Congo and in Kosovo provide examples of authorized humanitarian initiatives. Chapter 4 examines the American intervention in Panama in 1989 as we intervened both to protect our interests under the Panama Canal

Treaty and to ensure the safety of U.S. nationals present in Panama pursuant to that

agreement. Chapter 5 reviews those conflicts in which terrorist violence by individuals

groups of individuals, and state-supported terrorist elements create a right to respond

through military force by the target state. The attacks by Iranian militants in 1979 and

by al-Qa‘ida in 2001 spearhead the discussion of lawful response to terrorist violence.

Chapter 5 argues that an effective counterterrorism strategy must ensure that enforcement measures are not legally constrained and that people responsible for terrorist acts

are consistently held accountable by regional and international organizations. This expanding body of international law, when coupled with increasingly effective national

legislation, appears to be arming the victims of terrorism with some of the legal instru

ments necessary to combat the threat. This chapter concludes that governmental response to state-supported terror violence, where the elements of necessity and

proportionality are met, is clearly supported by customary international law and the

UN Charter.

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conflicts that have involved aggression by one or more nation-states against anot

nation-state, as opposed to the intervention by nations or coalitions of nations in 

sponse to either humanitarian crises or terrorist violence. In these major conflict

sovereignty of a nation is normally in dispute. While not necessarily exhibiting g

destructiveness than “lesser” conflicts, the more traditional international conflict

dressed in Part III invoke the law-of-war principles reflected in the Hague Conve

of 1899 and 1907 and the Geneva Conventions of 1949.

Chapter 6 examines the coalition response to Iraqi aggression in 1990–91 during 

ation DESERT STORM. It contrasts the illegality of the actions of the Iraqi regime 

Saddam Hussein with the responses of the coalition led by the United States, whi

succeeded in liberating Kuwait and returning its borders to the status quo ante. T

chapter begins with a discussion of Iraq’s invasion of Kuwait and the response of 

United Nations, leading up to the decision to use force. It then examines the con

armed hostilities by both sides during the war. The chapter concludes with obser

tions on the role of law in the successes and failures of the postwar enforcement 

in Iraq.

Chapter 7, Operation IRAQI FREEDOM, examines the Bush administration’s decis

invade Iraq in March 2003 and enforce a long series of UN Security Council reso

tions addressing Iraqi threats to international peace and security. This chapter ex

ines these Iraqi violations in the context of international law principles justifying

intervention. More significantly, it examines the right of states to enforce manda

sued by the Security Council and to redress violations of its edicts when the Cou

a body, refuses to do so.

Part IV addresses U.S. policy for peace operations. The United States has voted to 

port the United Nations and NATO in providing multilateral forces to restore int

tional peace and security. The United Nations was involved in both Chapter VI

(peacekeeping) and Chapter VII (peace enforcement) operations in the 1990s, w

limited success. Chapter 8, “Development of Criteria for Peace Operations,” look

the limitations inherent in UN leadership of such operations, citing the UN failu

Somalia and Bosnia. The success of NATO as the leadership element in Kosovo in 

was significant and may foreshadow a new era for the role of regional organizatio

(discussed in chapter 9) under Chapter VIII of the UN Charter.

Part V concerns itself with special areas of legal concern that warrant considerati

with regard to legal justification for military response to international coercion. T

part, “Challenges for the Twenty-first Century,” addresses the right of states to re

to threats to, and attacks on, critical infrastructure. Chapter 10 examines what rig

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tional political and economic integrity. Chapter 11, concerning computer network attack, takes this one step farther and examines the authority that international law

provides to nations wishing to protect these systems aggressively, through preemptive

defense. Chapter 11 carefully analyzes the right to target computer networks of nations

that have expressed “clear indicators of attack.” Finally, recommendations are offered to

enhance the ability of the international legal system to support and embrace, strongly

and legally, computer-generated data-warfare responses to such aggression.

This Newport Paper examines representative instances where force has recently been

used in international relations, the circumstances under which it was used, the instructive international policy and legal constructs that can be applied, and the relationship

of these policies to the minimum world order system established in Articles 2(4) and

51 of the United Nations Charter. That system, defined more fully in the pages that follow, provides a complementary structure that prohibits and counters the unlawful, aggressive use of force, on the one hand, and permits national and collective self-defense,

on the other, in a manner designed to meet both the traditional threats represented

during the Cold War and the nontraditional threats we have seen recently and can expect in the future.

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PART ONE

The Changing Nature of the Threat to National Security

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Customary Law

The Relationship between Law and the Use of Force

In consideration of the breadth of the process of coercion and of the related mili

and economic imbalances on which coercion tends to thrive, a number of legal a

policy considerations need to be reexamined. Among these principles are necessi

proportionality, principles of legal justification, the legal criteria for self-defense

the world-order commitments undertaken by all nations under the United Natio

Charter for the deterrence of aggression. In examining these principles, it must b

derstood that every nation has determined which exclusive or national interests i

protect at all costs if it is to retain elements of its own sovereignty free from the d

structive effects of armed attack, conventional or nonconventional. Where these na

or exclusive interests intrude upon the collective claims of the greater community 

states, as represented by the United Nations, they are rejected by that body. With

community of nations, however, there are subcommunities with separate agenda

such includes the lesser developed, or Third World, states, from which most rece

structive violence has been observed to arise.

Because coercion involves such a multivariance of concerns, it is necessary in any a

of specific factual situations to consider the objectives, motivations, and “needs” of 

states involved. Certain of the principles, because they dominate our consideration 

legality of specific instances of coercion, must first be addressed in greater detail.1

The Use of Force: Principles of Legal Justification

The principles that confine the legitimate use of force are embodied in two comp

but complementary components. The first is the claim of participants to their rig

use force until the threat posed by an adversary has been overcome.2

A related bu

rate requirement is that the level and type of force used be proportionate to the o

tive to be obtained. Referred to as the “principle of proportionality,” this concept

denies a participant the right to interpose excessive force, regardless of the level o

conflict. It has often been stated that the principle of proportionality is but a

CHAPTER ONE

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would make efforts to regulate international coercion futile. The Department of the

Navy observes:

In allowing only that use of force necessary for the purpose of war, the principle of necessity implies

the principle of humanity that disallows any kind or degree of force not essential for the realization of

this purpose: that is, force that needlessly or unnecessarily causes or aggravates both human suffering

and physical destruction. Thus the two principles may properly be described, not as opposing, but as

complementing each other: the real difficulty arises, not from the meaning of the principles, but from

their application in practice.3

These principles have value only if respected in the practices of states, and specifically

in those of the United States and the nations of Western Europe, which shape policy

expectations for the larger community. Multilateral agreements like the Hague Conven

tions of 1907 and the Geneva Conventions of 1949, which codify these principles in

specific rules, all depend for their vitality upon the restraint exercised in the actual

practice of states. The late Professor Myres McDougal, referring to these state practices

in terms of customary international law, declared, “What is important in the development of international law by custom is, we may emphasize, the crystallization of perspectives among peoples, and especially among their effective decision-makers, that

certain past uniformities in decision will, and should, be observed in the future.”4

When the mutual tolerance and mutual restraint required to give effect to these principles are violated by one state in its relations with another, the delicate balance between

them of equal security under the law is lost. It is with this predicate in mind that these legal precepts are applied to post–World War II intervention in the chapters that follow.

The Legal Criteria for Self-Defense

The “necessity” for the use of force by states and the “proportionality” with which that

force must be applied to an existing threat are simply elements of the right of states to

defend themselves and to maintain an international status quo.5

Thus, an understanding of permissible coercion is as important as an understanding of the unlawful use of

force by states and nonstate actors. Professor McDougal stated most succinctly the

need to understand both parameters of coercion:

Complete disorder, failure to forbid even the most intense and comprehensive destruction of values is

not only possible but has in fact long characterized the perspectives of traditional international law. If

on the other hand, the deliberate choice is made to pursue at least a minimum of order in the world

arena, the coercion that is to be prohibited clearly must be distinguished from that which is to be permitted. The conceptions both of impermissible and permissible coercion are thus necessary in the the

oretical formulation of authoritative policy as well as the practical application of that policy to

interacting human groups.6

Unfortunately, that coercion which is legally permissible and that which is illegal often

differ only in the perception of the state claimant. To the extent that states have a right

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shaped by their own ideologies. In that regard, the issue of whether preparation f

armed conflict is actually for a state’s national security and self-defense or for pu

of aggression becomes a major political question in the legal dimension of coerc

An equally relevant and related issue concerns self-serving and reinforcing doctrin

gued by states following a use of force that is condemned by the community of nat

One such reinforcing doctrine was the “Brezhnev Doctrine,” issued by the Soviet U

at the height of the 1968 crisis in Czechoslovakia. It attempted to establish a specia

national right to intervention in order to protect and promote the “Socialist Comm

wealth of States.”7

Such claims, largely discounted by the international community, 

up the obstacles to uniform acceptance of reasonable interpretations of internation

principles, as well as the asymmetries between “open” and “closed” societies.8

The Policy of Deterrence

The policy of deterrence is a third aspect in the process of balancing vital interes

states so as to preclude the initiation and escalation of conflict. The great value o

perspective is that, unlike the traditional perspectives—political, military, cultura

ideological, and economic—which view international conflicts primarily in term

original causes, “deterrence” offers a focus on avoidance. Each of these perspectives

ever, is necessary in the dynamic approach required for the resolution of internatio

disputes. Such an integrated approach cannot avoid examining the role of law. Exis

international legal institutions and processes for establishing world order are addre

in later chapters; however, consideration must also be given to the extent to which 

tries are willing and able to adopt legal standards in their international relations.

The Contextual Relationship

Within this broad context, the monograph’s case studies in the use of force and c

resolution examine the characteristic differences between the interpretive approa

taken by national and nonnational entities in their respective claims and counter

during international crises. The importance of the facts and rationales of post–W

War II coercion lies in the significance that nations place in the role of law as a n

sary element in gaining political support, both national and international. In the

statements of international legality, nation-states, including the United States, an

nonstate entities as well adopt and espouse customary and conventional internat

principles that serve policy aims. The international legal mechanisms, led by the 

ous organs of the United Nations, provide means by which the flexibility of these 

ing interpretations of law is bounded.

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since the 1945 Yalta Conference attempts to examine the various national and

subnational claims in terms of the common, inclusive interests of all sovereign states

(and nonstates aspiring to such status) in adhering to an international legal regime tha

is protective of the interests of the greatest number. Exclusive claims asserted irrespective of these interests must be rejected.

Notes

1. This study will not equate illegal coercion under Article 2(4) of the UN Charter with the

definition of aggression adopted by the General Assembly without vote on 14 December

1974. (“Definition of Aggression,” 29 UNGA

Res. 3314). The fundamental question of aggression has always revolved around “intent,”

which is approached tentatively in Article 2 of

the 1974 definition. Article 2 declares that the

use of armed force by a state “in contravention of the Charter” shall constitute prima facie evidence of aggression, in the absence of

justifying circumstances. The ambiguity of

this provision is such that even acts “in contravention of the Charter” could be legally

justified. When “illegal coercion” and “aggression” are addressed in this study, the definition provided by the late Professor Phillip

Jessup and widely accepted by international

legal scholars will be used. That definition

provides “a resort to armed force by a State

when such resort has been duly determined,

by a means that that state is bound to accept,

to constitute a violation of an obligation.”

Phillip Jessup, “Harvard Research in International Law: Rights and Duties of States in Acts

of Aggression,” American Journal of International Law Supplement 33 (1939), p. 827.

2. See Steven Downey, “The Law of War and

Military Necessity,” American Journal of International Law 47 (1953), p. 251.

3. U.S. Navy Dept., Law of Naval Warfare, NWP

10-2 (Washington, D.C.: 1955); see also U.S.

Army Dept., The Law of Land Warfare, FM

27-10 (Washington, D.C.: 1976). Para. 41 of

FM 27-10 declares: “Unnecessary Killing and

Devastation.... [L]oss of life and damage to

property must not be out of proportion to the

military advantage to be gained. Once a fort

or defended locality has surrendered, only

such further damage is permitted as is

demanded by the exigencies of war, such as

the removal of fortifications, demolition of

military buildings, and destruction of stores.”

4. Myres McDougal, Harold Laswell, and Ian

Vlassic, Law and Public Order in Space (New

Haven, Conn.: Yale Univ. Press, 1963), p. 243

5. Article 51 of the United Nations Charter

provides in part that the use of force in selfdefense can be invoked only “if an armed attack occurs against a member of the United

Nations.” The Security Council is then required by the same article to take action to

“restore international peace and security.”

Clearly, the restoration of the status quo is

the primary justification for permitting coercion in self-defense under the Charter.

6. Myres McDougal and Florentine Feliciano, Law

and Minimum World Public Order: The Legal

Regulation of International Coercion (New Haven, Conn.: Yale Univ. Press, 1961), pp. 128–29

7. See “Legality of Czechoslovak Invasion,” in

Department of State Bulletin, UN Special

Committee on Principles of International

Law (Washington, D.C.: 14 October 1968),

pp. 396–401, for a discussion of this “doctrine.” Article 1 of the Soviet-Czechoslovak

Treaty on Stationing of Soviet Troops, in

force 18 October 1968, justified Soviet

troops in Czechoslovakia “for the purposes

of ensuring the security of the countries of

the socialist commonwealth against the increasing revanchist aspirations of the West

German militarist forces.” Article 2 declared

that their “temporary presence” did not violate the sovereignty of Czechoslovakia.

8. “Open” societies such as the United States draw

in greater participation from the citizenry in

decisions with respect to their armed forces.

See, e.g., S. Res. 2956, 92d Cong. 2d. sess.

(1972), passed over President Nixon’s veto.

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The Minimum World Order System

The inception of conflict management on an international scale can be traced to 

evolution of the modern state system. The benchmarks of this historical process,

marked by the breakup of medieval Christendom in Europe, were the Peace of

Westphalia in 1648 and the Treaty of Utrecht in 1713. It was the nineteenth centu

however, that saw the emergence of factors that permitted the organizational me

regulate international conflict. These factors included the development of impro

management structures within the developing national states and of improved m

of communication, both of which led to an awareness of the need for a method t

ulate interstate relations.

The Pre-Charter System

In 1815, in the wake of the ruinous Napoleonic Wars in Europe, the Congress of V

provided the first international forum for the major nations, as an alternative to 

traditional bilateral diplomacy of the past. Although the congress proved largely 

fective, it established a precedent for future multinational conferences. The tragic

destructive Crimean War and the equally devastating U.S. Civil War were major f

in gaining support for the 1899 and 1907 Hague Conferences addressing means a

methods of warfare. These conferences gave equal status to all participant nations, 

four of them in the case of the 1907 conference. The great value of these conferenc

the template they established for future multilateral conferences to formulate and c

international law principles and to institute procedures for the settlement of dispu

The Hague approach to international dispute resolution was premised upon rati

and the belief in the merit of a systems approach. The priority placed upon the p

ful settlement of disputes was a signal that conference participants viewed war as 

sult of misunderstandings that could be eliminated by clarification of issues and 

evocation of reason. Unfortunately, the Hague ideal of self-restraint and rational 

sideration of opposing concerns has never been realized. The Hague approach vi

peace in the abstract, postulating that if systems were created to which the major

CHAPTER TWO

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flected in some 120 general arbitration treaties negotiated from 1900 to 1914 between

pairs of states.1

The Hague construct reached its zenith in a 1913 plan proposed by Secretary of State

William Jennings Bryan, calling for an investigatory function and a permanent interna

tional commission. This proposal, which envisioned bilateral agreements between the

United States and any country willing to accede to the Bryan plan, called for submission of all disputes to investigation before any resort to force.2

Unfortunately, this intel

lectual approach tied to mechanisms and procedures had little impact on the national

passions swirling on the eve of World War I, nor could it preclude the horrendous violence unleashed in 1914 at Sarajevo.3

The Period of the League of Nations

The League of Nations, established after World War I, was a further attempt by world

leaders to define the lawfulness of resort to war in procedural terms. Believing, albeit

incorrectly, that World War I had been a war by accident, they sought to establish a regime in which the lawfulness of war did not depend solely on the rightness of one’s

cause but rather on whether procedural standards had been complied with. Thus, under Articles 12, 13, and 15 of the Covenant of the League, resort to war was prohibited

only if the dispute leading thereto had not been submitted to arbitration, judicial settlement, or the League.4

This created an obvious “gap” in the Covenant’s jurisdiction.

The League failed, however, not as a result of any technical language concern with the

Covenant or the failure of the United States to join (despite President Woodrow Wilson’s

pivotal role in its creation) but as a result of the utter failure by nations to take seriously

the Covenant’s clear mandate against aggression—an indifference evident in the actions of Japan, Italy, and Germany within their spheres of influence.5

During this same interwar period, Secretary of State Frank B. Kellogg was instrumental in

negotiating with representatives of Germany, Belgium, France, Great Britain, Italy, India,

Japan, Poland, and the Czechoslovak Republic the 1928 Treaty of Paris (or KelloggBriand Treaty), which renounced war as an instrument of national policy, an attempt

to fill the gap in the Covenant of the League.6

This international commitment was not

deemed violated by certain of its signers who later used military force against their

neighbors, as described above. These uses of force were justified in each case as legitimate exercises of the national right of self-defense.7

Despite this not-insignificant imperfection in practice, the Covenant of the League of Nations, with its commitment to

procedural safeguards, and the Kellogg-Briand Treaty, which forbade war except in self

defense, provided the seminal concepts for the postwar conference that developed the

Charter of the United Nations.

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When the Allies met in San Francisco following World War II, they structured th

work around an effective procedural framework and the prohibition of war, exce

self-defense, but also the principle of collective security, from Article 16 of the C

nant of the League of Nations.8

The UN Charter made three important contribut

to the institutional development of law that had begun during the League period

by prohibiting the “the threat or use of force,” it effectively expanded the scope o

Kellogg-Briand formulation. Second, it provided for a strong Security Council, w

meant that in the future collective security could meaningfully be substituted for 

lateral action.9

Finally, it established an International Court of Justice to which d

between states could be referred.10 Notwithstanding the inadequacies in Charter 

tion reflected in the case studies in subsequent chapters, the advance in conflict m

agement represented in the first point above merits discussion.

The basic provision restricting the threat or use of force in international relation

Article 2, paragraph 4, of the UN Charter, which states: “All Members shall refrai

their international relations from the threat or use of force against the territorial 

rity or political independence of any state, or in any manner inconsistent with th

poses of the United Nations.”11 The underlying purpose, to regulate aggressive be

between states, is identical to that of Article 12 in the Covenant of the League of 

tions, which declared that League members were obligated not to “resort to war.”

terminology, however, left out hostilities that, although violent and destructive, c

not be considered warfare. The drafters of the UN Charter wished to ensure that 

gal aspects of a conflict’s status did not preclude cognizance by the international 

Thus, in drafting Article 2, paragraph 4, they replaced the term “war” with the ph

“the threat or use of force.” The wording was interpreted as prohibiting a broad r

of hostile activities including not only “war” and equally destructive conflicts bu

applications of force of a lesser intensity or magnitude.13

The United Nations General Assembly has clarified the scope of Article 2 in two 

portant resolutions, both adopted unanimously.14 Resolution 2625, the Declaratio

Friendly Relations, describes behavior that constitutes the unlawful “threat or us

force” and enumerates standards of conduct by which states must abide.15 Contra

tion of any of these standards of conduct is declared to be in violation of Article 

paragraph 4.16

Resolution 3314, the Definition of Aggression, is a detailed statement on the mea

of “aggression,” defining it as “the use of armed force by a state against the sovere

territorial integrity or political integrity or political independence of another sta

in any manner inconsistent with the Charter of the United Nations.”17 This resolu

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sion.18 The resolution provides that a state that commits an act of aggression violates

international law as embodied in the UN Charter.19

The actions of states supporting terrorist activities, as previously observed in Afghanistan, plainly fall, in light of these resolutions, within the scope of Article 2, paragraph

4. The illegality of aid to terrorist groups has been clearly established by the UN Gen

eral Assembly. Both resolutions specifically prohibit the “organizing,” “assisting,” or

“financing” of “armed bands” or “terrorists” for the purpose of aggression against another state.20

The Development of the Law of Self-Defense under the UN Charter

When the UN Charter was drafted in 1945, the right of self-defense was the only excep

tion included to the prohibition of the use of force. Customary international law had

previously accepted reprisal, retaliation, and retribution as legitimate responses as well

Reprisal allows a state to commit an act that is otherwise illegal to counter the illegal

act of another state. Retaliation is the infliction upon the delinquent state of the same

injury that it has caused. Retribution is a criminal-law concept, implying vengeance,

that is sometimes used loosely in the international law context as a synonym for retaliation. While debate continues as to the current status of these responses, the U.S. position has always been that actions protective of American interests are not punitive in

nature but offer the greatest hope of securing a lasting, peaceful resolution of international conflict.21

The right of self-defense was codified in Article 51 of the Charter: “Nothing in the

present Charter shall impair the inherent right of individual or collective self-defense i

an armed attack occurs against a Member of the United Nations.”22 The word “inherent” suggests that self-defense is broader than the immediate Charter parameters. During the drafting of the Kellogg-Briand Treaty, for example, the United States expressed

its views as follows:

There is nothing in the American draft of an anti-war treaty which restricts or impairs in any way the

right of self-defense. That right is inherent in every sovereign state and is implicit in every treaty. Every

nation is free at all times and regardless of treaty provisions to defend its territory from attack or invasion and it alone is competent to decide whether circumstances require recourse to war in self-defense.23

Because self-defense is an inherent right, its contours have been shaped by custom and

are subject to customary interpretation. Although the drafters of Article 51 may not

have anticipated its use in protecting states from the effects of terrorist violence, such

as the United States experienced in September 2001, international law has always recognized the need for flexible application. George Shultz, when secretary of state, emphasized this point: “The UN Charter is not a suicide pact. The law is a weapon on our

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sion about the status of nations that sponsor terrorism against Americans and A

can property.”24

The final clause of Article 2, paragraph 4, of the Charter supports this interpreta

forbidding the threat or use of force “in any manner inconsistent with the Purpo

the United Nations.”25 The late Professor Myres McDougal of Yale University plac

relationship between Article 2, paragraph 4, and Article 51 in clearer perspective

Article 2(4) refers to both the threat and the use of force and commits the Members to refrain 

the “threat or use of force against the territorial integrity or political independence of any state

any manner inconsistent with the Purposes of the United Nations”; the customary right of def

limited by the requirements of necessity and proportionality, can scarcely be regarded as incon

with the purpose of the United Nations, and a decent respect for balance and effectiveness wou

gest that a conception of impermissible coercion, which includes threats of force, should be co

with an equally comprehensive and adequate conception of permissible or defensive coercion.

Significant in Professor McDougal’s interpretation is the recognition of the right 

counter the imminent threat of unlawful coercion as well as actual attack. This co

prehensive conception of permissible or defensive coercion, honoring appropriat

sponse to threats of an imminent nature, is merely reflective of the customary

international law. It is precisely this anticipatory element of lawful self-defense th

critical to an effective policy countering terrorist violence under the UN Charter

Customary international law has long recognized that no requirement exists for 

to “absorb the first hit.”27 The doctrine of anticipatory or preemptive self-defense

developed historically, is applicable only where there is a clear and imminent dan

attack. The means used for preemptive response must be strictly limited to that req

for the elimination of the danger and must be reasonably proportional to that obje

Four historical incidents, cited with approval by international lawyers, are critical t

understanding of existing authorities available to U.S. leaders in the twenty-first ce

when terrorist violence has already proven more deadly than a major conflict. In 

the United States established the right to enter the territory of another state to pr

terrorist attacks if the host is unable or unwilling to quell a continuing threat. Th

Seminole Indians, in Spanish Florida, had demanded “arms, ammunition and pr

sions or the possession of the garrison at Fort Marks.”28 President James Monroe d

General Andrew Jackson to proceed against the Seminoles, declaring that the Span

were bound by treaty to keep their Indians at peace but were incompetent to do so

During the Canadian insurrections of 1837–38, the standard for justifiable antici

self-defense was more clearly established.30 Anti-British sympathizers gathered n

Buffalo, New York. A large number of Americans and Canadians were similarly e

camped on the Canadian side of the border, with the apparent intention of aidin

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nications, was boarded in an American port at midnight by an armed group acting under orders of a British officer; the boarders set the vessel on fire and cast it loose to drift

over Niagara Falls. The United States protested the incident, which had claimed the lives

of at least two American citizens. The British government replied that the threat posed

by the Caroline had been established, that American laws were not being enforced

along the border, and that the destruction had been an act of necessary self-defense.

In the controversy that followed, the United States did not deny that circumstances

were conceivable that would justify this action, and Great Britain admitted the necessity of demonstrating the extreme urgency. The two countries differed only on the

question of whether the facts brought the case within the exceptional principle. Charle

Cheney Hyde summed up that “the British force did that which the United States itself

would have done, had it possessed the means and disposition to perform its duties.”31

Secretary of State Daniel Webster, in formulating an oft-cited principle of self-defense,

declared that there must be a demonstrated “necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment of deliberation.”32 It is clear,

however, that the Webster formulation was not applied by the British in the decision to

destroy the Caroline, at least not with respect to time for deliberation. This formulation

may have been overly restrictive, even when stated in 1841.

In the present era, when terrorists and their sponsors possess weapons that can be employed rapidly, any requirement that a nation not respond until faced with a situation

providing no moment of deliberation is unrealistic.33 The U.S. Department of State has

criticized Secretary Webster’s formulation: “This definition is obviously drawn from

consideration of the right of self-defense in domestic law: the cases are rare indeed in

which it would fit an international situation.”34

Another example of preventative defensive measures, this time drawn from World War

II, has greater application to the element of necessity as it relates to states sponsoring

terrorist violence. Following the capitulation of France to Germany in June 1940 and

the establishment of the Vichy regime, many French naval vessels took refuge abroad, a

number of them at Oran on the North African coast. British demands for disposition

of the vessels were accepted by French commanders at Alexandria and Martinique

(thus establishing the reasonableness of the demands), but they were rejected at Oran.

Fearing the French vessels there would fall into Berlin’s hands, Britain destroyed them.

Professor Mallison, noting that acquisition of the French fleet could have provided the

Germans means to invade Great Britain by sea, stated: “Nothing in international law

required the British to defer action in self-defense until after the French warships were

incorporated into the German Navy.”35

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launched defensive strikes on military targets in Tripoli and Benghazi, Libya. The 

of force was preceded by conclusive evidence of Libyan responsibility for prior ac

terrorism against the United States, with clear evidence that more were planned. 

nal provocation occurred in West Berlin, on 5 April, when two American citizens 

killed and seventy-eight other people were injured by an explosive device detona

a discotheque.36

Eleven days earlier, on 25 March, a cable from Tripoli had directed the Libyan Pe

Bureau in East Berlin to target U.S. personnel and interests. On 4 April, a return 

sage was intercepted that informed Colonel Muammar Kaddafi’s headquarters th

terrorist attack would take place the next day. On 5 April, the same People’s Bure

ported to Colonel Kaddafi that the attack had been a success and “could not be t

to the Libyan people.”37 On the next day, Tripoli exhorted other People’s Bureaus 

low East Berlin’s example.38 In a news conference on 15 April, White House press 

tary Larry Speakes advised reporters that personnel from the East Berlin People’s

Bureau had been seen and identified in West Berlin, apparently on surveillance m

sions before the terrorist attack.39

In the week before the United States responded to the attack, American defense o

cials reported that Libya had been planning terrorist attacks against U.S. diploma

missions in ten African countries, the Middle East, and Latin America. In one Af

country, for example, three Libyan agents were planning to bomb the U.S. embas

kidnap the ambassador.40 On 15 April 1986, Secretary of State Shultz stated that t

United States had information that Libya was targeting thirty American embassie

possible attack.41

Nor were these isolated events. The Libyans had been known to have had a direct 

in kidnappings of Westerners in Lebanon between 1982 and 1985. Immediately a

the U.S. raid, three of those hostages (two British and one American) were murd

by their captors. Sir Geoffrey Howe, British foreign secretary, stated on behalf of 

government, “We have good reason to believe the hostages were in Libyan hands

Italy also appeared to have had enough of Kaddafi’s violence. After Libyan patrol 

fired two Scud missiles at the Italian island of Lampedusa immediately following 

U.S. raid, Prime Minister Bettino Craxi stated that Italy would respond militarily 

Libya again attacked Italian territory.43

Other terrorist incidents prior to the raid could also be traced indirectly to Colon

Kaddafi. The 1985 attacks on the ticket counters of Trans World Airlines and El A

lines at the Rome and Vienna airports had been masterminded by Abu Nidal, a P

tinian terrorist supported both by Kaddafi and the Syrians. In fact, Abu Nidal ha

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harbored by Saddam Hussein until Abu Nidal’s death in Iraq in 2002. President Reagan

summed up the U.S. view of Kaddafi’s complicity in international terrorism when he

spoke to the nation immediately following the 15 April 1986 defensive response by U.S

warplanes: “Colonel Kaddafi is not only an enemy of the United States. His record of

subversion and aggression against the neighboring states in Africa is well documented

and well known. He has ordered the murder of fellow Libyans in countless countries.

He has sanctioned acts of terror in Africa, Europe, and the Middle East as well as the

Western Hemisphere.”44

As in the prior examples, the United States directed its response to continuing Libyan

violence at military targets only. The objective was to strike at the military “nerve center” of Kaddafi’s terrorist operations and limit his ability to use his military power to

shield terrorist activities, thus “raising the costs” of terrorism in the Libyan leader’s

eyes and “deterring” him from future terrorist acts.45 Press Secretary Speakes asserted

that the American raids on Libya “were justified on grounds of ‘self-defense’ to preempt further Libyan attacks.”46

The 1986 response involved F-111 bombers from an American air base in Great Britain

and A-6 fighter-bombers from two aircraft carriers in the Mediterranean Sea; the aircraft struck five Libyan bases. The United States responded only after determining that

the Libyan leader was clearly responsible for the 5 April bombing, that he would continue such attacks, and, having assessed that the economic and political sanctions imposed after the Rome and Vienna airport bombings had been unsuccessful, that our

Western European allies were unwilling to take stronger joint steps against Kaddafi.

A clear linkage existed between the threat perceived and the response directed against

Libyan military targets. Despite the fact that Kaddafi had purposefully targeted civilians, every effort was made to minimize collateral damage to the civilian communities

contiguous to the two target areas. Civilian sectors were inadvertently hit, but evidence supports the conclusion that this resulted from an errant release of a bomb

from an F-111 aircraft that had been hit by Libyan antiaircraft fire.47

The role of the allies was clearly considered as well. Prior to authorizing the response,

President Reagan sent Ambassador Vernon Walters to consult with each of our NATO

partners to ensure that each understood our position and justification. Only Great

Britain’s prime minister, Margaret Thatcher, offered public support and overflight

rights for U.S. F-111 bombers. President François Mitterand of France “favored stronger military action” than that actually proposed and executed against Libya but reportedly told Ambassador Walters, “We can’t come out publicly for you.”48 It was reported

that the French president, the most vocal critic of U.S. counterterrorist policy in his

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and “real major action against Libya.”49

In a 21 August meeting in Luxemburg, the actions of the foreign ministers of twe

European states reflected the profound effect the defensive raid had had in inspir

lied efforts to resist terrorism. The foreign ministers approved a package of diplo

sanctions aimed at limiting Libya’s ability to sponsor terrorist attacks, sanctions t

had been rejected only a week earlier.50 These sanctions had been endorsed and r

at a Tokyo economic summit in May 1986, when President Reagan met with the 

of Britain, Canada, France, Italy, Japan, and West Germany, as well as other repre

tives of the European Community. It is worthy of note that the U.S. essentially ha

act alone against Libya, even after Kaddafi’s implication in the 1985 Vienna and R

airport bombings. In April 1986, however, the U.S. use of force suddenly spurred 

active support among the allies.

This support, though offered only after the fact, suggests that the allies viewed the 

April 1986 U.S. actions as proportionate to the perceived threat. Proportionality in 

Libyan case could be assessed from a dual perspective. First, this element of self-de

required that the U.S. claims, in the nature of counterterrorist goals, be reasonab

lated to the existing terrorist threat to national interests. Second, proportionality 

dated that the United States and other offended states use only such means as we

required to terminate the offending conduct. In the first sense of proportionality

U.S. actions in 1986 sought only to neutralize the broad effort to overthrow thro

terrorist violence the power balance in the Mediterranean region; it did not seek 

ate a new alignment of that balance in North Africa. In the second sense, the defe

strikes, directed at targets in Tripoli and Benghazi, were restricted to military ins

tions behind which Kaddafi’s terrorist infrastructure was concealed.

The 1986 defensive response of the United States to Libyan state-sponsored terro

met customary and conventional legal requirements to counter aggression and th

was valid under international law. The four basic elements of the law of armed co

were clearly evident in the U.S. response. The force used was capable of being, an

in fact, regulated by the United States. Necessity for its use had been established b

haustion of lesser means. Libya’s complicity in supporting international terrorism 

been clearly established. The force used was not otherwise prohibited. The raid o

April 1986 was proportional to the threat and no greater in effect than was requi

Response to terrorism, like response to other forms of armed conflict, has as its p

pal purpose termination of hostilities under favorable conditions. Having forcefu

demonstrated that the United States would respond to weaken Libya’s military su

for terrorist violence, President Reagan’s follow-on moves were clearly appropria

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the 21 April 1986 European Community ministerial session and his plea for concerted

action at the economic summit in Tokyo, emphasized that nonmilitary coercive measures against a pariah state are effective only if all major free nations participate. If the

15 April blow against Libya was to do more than reestablish the credibility of U.S.

forces, an integration of strategies involving nations trading with Libya was imperative

The four examples cited do not suggest the lack of international law restraints upon the

determination of necessity for preemptive action. Rather, they suggest that self-defense

claims must be appraised in the total context in which they occur. One aspect of this

contextual appraisal of necessity, especially as it relates to response after the fact to terrorist violence, concerns the issue of whether force can be considered necessary if

peaceful measures are available to lessen the threat. To require a state to tolerate terrorist violence without resistance on the grounds that peaceful means have not been exhausted is absurd. Once a terrorist attack has occurred, the failure to consider a

military response would play into the hands of aggressors who deny the relevance of

law to their actions. The legal criteria for the proportionate use of force is established

once a state-supported terrorist act has taken place. No state is obliged to ignore an attack as irrelevant, and the imminent threat to the lives of nationals requires consideration of a response.

Notes

1. See Shabtai Rosenne, The World Court: What

It Is and How It Works, 3d rev. ed. (Dobbs

Ferry, N.Y.: Oceana, 1973), p. 17; see also

James Brown Scott, introduction, in Treaties

for the Advancement of Peace between the

United States and Other Powers Negotiated by

the Honorable William J. Bryan (New York:

Oxford Univ. Press, 1920), pp. xxxiii–xxxv.

2. The following national states ultimately

signed treaties with the United States agreeing to this formulation: El Salvador, Guatemala, Panama, Honduras, Nicaragua,

Netherlands, Brazil, Argentina, Chile, France,

Great Britain, Spain, China, and Russia.

3. Despite these agreements, a disenchanted

Serb killed Archduke Ferdinand in Sarajevo

in 1914, starting World War I. There was no

apparent interest in seeking a complete investigation of this incident, despite the fact

that Austria-Hungary, Belgium, and Germany endorsed the Bryan plan in 1914, although not signing treaties embodying it.

4. See Covenant of the League of Nations:

Article 12: (1) The Members of the League

agree that if there should arise between

them any dispute likely to lead to a rupture

they will submit the matter either to arbitration or judicial settlement or to inquiry

by the Council, and they agree in no case to

resort to war until three months after the

award by the arbitrators or the judicial decision or the report of the Council.

(2) In any case under this Article the

award of the arbitrators or judicial decision shall be made within a reasonable

time, and the report of the Council shall

be made within six months after the submission of the dispute.

Article 13: . . . (4) The Members of the

League agree that they will carry out in

full good faith any award or decision that

may be rendered, and that they will not

resort to war against a Member of the

League which complies therewith. In the

event of any failure to carry out such an

award or decision, the Council shall

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effect thereto.....

Article 15: (1) If there should arise between Members of the League any dispute

likely to lead to a rupture, which is not

submitted to arbitration or judicial settlement in accordance with Article 13, the

Members of the League agree that they

will submit the matter to the Council.....

(6) If a report by the Council is unanimously agreed to by the members thereof

other than the Representatives of one or

more of the parties to the dispute, the

Members of the League agree that they

will not go to war with any party to the

dispute which complies with the recommendations of the report.

5. During this period, Japan committed aggression against China, Italy invaded Ethiopia,

and Germany seized the Sudetenland. This

aggression was followed by Germany’s open

aggression against Austria, Czechoslovakia,

and Poland; the Soviet Union’s invasion, under cover of the Molotov-Ribbentrop Pact

with Germany, of the Baltic states and Finland; and Japan’s continued aggression

against China, followed by attacks on the

Philippines and the United States.

6. Treaty of Paris (Kellogg-Briand Pact), signed

27 August 1928, 46 Stat. 2343, TIAS 796, 94

LNTS 57 (entered into force 24 July 1929).

7. See Q. Wright, “The Meaning of the Pact of

Paris,”American Journal of International Law

27 (1933), p. 39. See also statements from UN

Doc. A/221, 23 June 1928 showing that the

right of self-defense is retained under the pact.

8. Article 16 of the covenant states, in part:

“Should any Member of the League resort to

war in disregard of its covenants under Articles 12, 13, and 15, it shall ipso facto be

deemed to have committed an act of war

against all other Members of the League.”

9. UN Charter, Arts. 23–32. These articles address

the composition, functions and powers, voting,

and procedures of the Security Council.

10. UN Charter, Arts. 92–96. These articles address membership and the jurisdiction of the

International Court of Justice.

11. UN Charter, Art. 2, para. 4.

12. See Covenant of the League of Nations, Art. 12.

13. See discussion in Myres McDougal and

Florentine Feliciano, Law and Minimum

World Public Order: The Legal Regulation of

Yale Univ. Press, 1961), pp. 142–43.

14. Definition of Aggression, GA Res. 3314

GAOR Supp. (no. 31) at 142, UN Doc. 

(1974); Declaration on Principles of In

tional Law Concerning Friendly Relatio

Cooperation among States in Accordan

the Charter of the United Nations, GA 

2625, 25 UN GAOR Supp. (no. 28) at 1

Doc. A/8028 (1970) [hereinafter Decla

on Friendly Relations].

15. The Declaration on Friendly Relation

cludes the following provisions (quo

arately from pp. 122–23):

• A war of aggression constitutes 

against the peace, for which ther

sponsibility under international 

• Every State has the duty to refra

the threat or use of force to viol

existing international boundarie

other State or as a means of solv

ternational disputes.

• Every State has the duty to refra

organizing or encouraging the o

zation of irregular forces or arm

bands, including mercenaries, fo

sion into the territory of anothe

• Every State has the duty to refra

organizing, instigating, assisting 

ticipating in acts of civil strife o

ist acts in another State.

• No State or group of States has t

to intervene, directly or indirect

any reason whatever, in the inter

external affairs of any other Stat

• No State shall organize, assist, fo

finance, incite or tolerate subver

terrorist or armed activities dire

wards the violent overthrow of t

gime of another State.

16. “By accepting the respective texts [of t

laration on Friendly Relations], States 

acknowledged that the principles repr

their interpretations of the obligation

Charter.” Resinstock, “The Declaration 

Principles of International Law Conce

Friendly Relations: A Survey,” America

nal of International Law 65 (1971), p. 

17. Definition of Aggression, p. 142.

18. Included in the list of acts of aggressi

(p. 143):

(a) The invasion or attack by the a

forces of a State or Territory of ano

State, or any military occupation, h

temporary, resulting from such inv

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force of the territory of another State or

part thereof;

(b) Bombardment by the armed forces of

a State against the territory of another

State or the use of any weapon by a State

against the territory of another State;

(c) The blockade of the ports or coasts of a

State by the armed forces of another State;

(d) An attack by the armed forces of a

State on the land, sea, or air forces, or marine and air fleets of another State;

(e) The use of armed forces of one State

which are within the territory of another

State with the agreement of the receiving

State, in contravention of the conditions

provided for in the agreement or any extension of their presence in such territory

beyond the termination of the agreement;

(f) The action of a State in allowing its

territory, which it has placed at the disposal of another State, to be used by that

other State, for perpetrating an act of aggression against a third State;

(g) The sending by or on behalf of a State

of armed bands, groups, irregulars or Mercenaries, which carry out acts of armed

force against another State of such gravity

as to amount to the acts listed above, or its

substantial involvement therein.

19. A fundamental purpose of the UN Charter is

to “maintain international peace and security” (Art. 1, para. 1). Article 1, paragraph 2

of the Definition of Aggression provides: “A

war of aggression is a crime against international peace. Aggression gives rise to international responsibility.” Definition of

Aggression, p. 144.

20. See notes 22, 26.

21. See statement of Acting Secretary of State

Dean Rusk in Arthur W. Rovine, “Contemporary Practice of the United States Relating

to International Law,” American Journal of

International Law 68 (1974), p. 736.

22. UN Charter, Art. 51.

23. Marjorie M. Whiteman, Digest of International

Law (Washington, D.C.: U.S. Government

Printing Office, 1965), sec. 25, pp. 971–72.

24. George Shultz, Low Intensity Warfare: The

Challenge of Ambiguity, Current Policy 783

(Washington, D.C.: U.S. State Dept., January

1986), p. 1.

25. See UN Charter, Art. 2, para. 4.

antine and Self-Defense,” American Journal

of International Law 57 (1963), p. 600.

27. See George Bunn, “International Law and the

Use of Force in Peacetime: Do U.S. Ships

Have to Take the First Hit?” Naval War Colleg

Review 39, no. 3 (May–June 1986), p. 69.

28. J. Moore, A Digest of International Law

(Washington, D.C.: U.S. Government Printing Office, 1906), p. 404.

29. Ibid.

30. Ibid., pp. 409–14. The Caroline incident, often called the Caroline “case,” was not resolved through the judicial process but

rather through diplomatic correspondence.

31. C. Hyde, International Law, Chiefly as Interpreted and Applied by the United States, 2d

ed. (Boston: Little, Brown, 1945), p. 240.

32. Moore, A Digest of International Law, p. 412.

33. For a more complete discussion of this issue

see W. Thomas Mallison, “Limited Naval

Blockade or Quarantine Interdiction: National and Collective Self-Defense Claims

Valid under International Law,” George

Washington Law Review 31 (1962), p. 335.

34. Participation in the North Atlantic Treaty of

States Not Members of the United Nations,

Hearings before the Senate Committee on For

eign Relations on the North Atlantic Treaty,

81st Cong., 1st sess., 1949, pp. 101–102.

35. Mallison, “Limited Naval Blockade,” p. 349.

36. See discussion in James Terry, “Countering

State-Sponsored Terrorism,” Naval Law Review (Winter 1986), p. 180.

37. See B. Kempster, “Cables Cited as Proof of

Libyan Terror Role,” Los Angeles Times, 15

April 1986, p. 5.

38. “Targeting a Mad Dog,” Newsweek, 21 April

1986, p. 25.

39. “Attack on Libya: The First Word,” New York

Times, 15 April 1986, p. 1; “Libyans Accused

of Worldwide Plots,” New York Times, 15

April 1986, p. A11.

40. Kempster, “Cables Cited as Proof of Libyan

Terror Role,” p. 5.

41. Ibid.

42. Brian Lelyveld, “Britain Cites ‘Evidence’ of Libyan Role,” New York Times, 19 April 1986, p. 4.

43. Fortunately, these missiles missed their target. Kempster, “Cables Cited as Proof of

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Promises to Answer Terror,” New York Times,

20 April 1986, p. 12.

44. “Transcript of Address by Reagan on Libya,”

New York Times, 15 April 1986, p. A10.

45. “Libyans Accused of Worldwide Plots,” p. A11.

46. Ibid.

47. See Terry, “Countering State-Sponsored Terrorism,” p. 182.

More in Libya Attack,” New York Tim

April 1986, p. A1.

49. Ibid.

50. See R. Bernstein, “European Commu

Agrees on Libya Curbs,” New York Ti

April 1986, p. A8.

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PART TWO

Lesser Conflict

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Humanitarian Intervention

Respect for national sovereignty and the commitment to nonintervention have lo

been at the heart of the international legal order. The norm of state sovereignty, h

ever, has never been absolute. It has always been subject to certain constraints, w

embodied in other norms of international relations or formalized in internation

A challenge to the traditional concept of sovereignty arises when a sovereign stat

to perform such basic functions as providing political stability, distributing resou

equitably, or ensuring social welfare. When such failure is reflected in the direct v

tion of the civil liberties and human rights of a major segment of a state’s own p

tion, compromising its health and well-being and generating a humanitarian cris

generally the responsibility of the state’s body politic to hold the state accountab

The Framework

Where the ethnic majority has joined with the government in promoting human

crisis within a community represented by the ethnic minority, as in Kosovo in 19

however, the international community has, arguably, if the 1947 Genocide Conve

has any meaning, a corresponding responsibility to help the victims and prevent 

genocide.1

Professor Louis Henkin has clarified most succinctly the responsibility 

states to address international human rights abuses: “The international system, h

identified contemporary human values, has adopted and declared them to be fun

mental law. But in a radical derogation from the axiom of ‘sovereignty,’ that law i

based on consent; at least it does not honor or accept dissent, and it binds particu

states regardless of their objection.”2

The debate on the concept of sovereignty has its most practical implication for th

principle of nonintervention. Nonintervention, the duty to refrain from uninvite

volvement in a state’s internal affairs, has been a standard corollary of the traditi

norm of sovereignty. As stated in the United Nations Charter, “All members shall 

frain in their international relations from the threat or use of force against the te

rial integrity or political independence of any State.”3

Once a government fails to 

CHAPTER THREE

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man rights to all its population—the principles that guarantee that state’s immunity

from intervention are undermined.4

This chapter first examines the legal framework related to humanitarian intervention

as it has developed under customary and Charter precedents. It then reviews the poten

tial or actual legal impact of the NATO intervention in Kosovo on that body of law,

suggesting that the principles of the UN Charter were fulfilled in this NATO action and

that they would have been frustrated had Soviet and Chinese opposition been allowed,

for political purposes, to preclude actions necessary to restore peace and security in

Kosovo. Finally, it suggests that criticism of the NATO actions in Kosovo may be misguided in that they fail to understand that the Charter regime was designed to be effective and that interpretations of its provisions tending to make it so are supportive

rather than destructive of its moral authority.

Legal Concepts for Humanitarian Intervention

Traditionally, humanitarian intervention has referred to a forcible intervention designed to stem a large-scale human rights crisis.5

The late Professor Richard Lillich of

the University of Virginia observed that humanitarian intervention is normally exercised by a group of states and not by a single state, as has traditionally been the case in

the protection of nationals. He further stated that pre-Charter humanitarian intervention was to be justified on the ground that although it obviously was an interference

with the sovereignty of the state concerned, it was a permissible one. “Sovereignty was

not absolute and when a state did reach this threshold of shocking the conscience of

mankind, intervention was legal.”6

Component elements of humanitarian intervention include the fact that it is executed

without the consent of the target government.7

In fact, this form of intervention is usu

ally directed against the incumbent regime, although nonstate actors might be the target where the state is weak or unstable.8

It is important that only humanitarian abuses

be targeted; addressing other political objectives and interests takes an intervention out

of the humanitarian category.9

Therefore, if intervention is approved, the objective for

the use of force must be to address a human rights crisis and, more specifically, the

abuses that made intervention necessary.10 Finally, the rule of proportionality applies to

humanitarian intervention, as it would in every use of force.11 Thus, the level of force

exerted must be consistent with the magnitude of the specific crisis and must rise only

to that required to curtail the abuse.12 Professor Ved Nanda explains that demanding

adherence to the proportionality of force in such operations eliminates the “pretext

problem” that arises when overwhelming force is used to address a situation that quite

obviously does not warrant it.13

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tions Charter in 1945 supplanted the lawfulness of humanitarian intervention, w

had been approved by customary international law.14 The reason that humanitari

tervention would no longer apply, they claim, is that the Charter provides, in Ch

VII, the exclusive authority for the use of force in such circumstances.15

The contrary view, supported by Professors John Norton Moore and Lillich of th

versity of Virginia, Professors Michael Reisman and McDougal of Yale University

fessor Nanda of the University of Denver, and Professor Christopher Greenwood o

Britain, to name a few, argue that humanitarian intervention is permissible in resp

to threats of genocide or other widespread arbitrary deprivation of human life in 

tion of international law, but only if diplomatic and other peaceful techniques ar

available and the United Nations Security Council is unable to take effective actio

Legal scholars advocating the post-Charter vitality of the doctrine of humanitari

tervention have urged that a significant credibility gap exists between a strict

noninterventionist policy and fulfillment of the principles of the UN Charter. Co

sidered as a whole, they claim, the Charter’s two main purposes are the maintena

peace and security, and the protection of human rights.17 Article 2(4), the Charte

vision relevant to both these purposes, prohibits “the threat or use of force again

territorial integrity or political independence of any state, or in any other manne

consistent with the Purposes of the United Nations.”

Since humanitarian intervention by a collective of states or a regional organizatio

from being inconsistent with Charter purposes, actually might further one of the 

organization’s major objectives if authorized, they urge that such interventions w

not run afoul of Article 2(4) if they do not affect the “territorial integrity” or “po

independence” of the state against which they are directed. In situations where th

Security Council is unable to act because of a potential veto, effectuation of this 

trine by a group of concerned states, as in Kosovo, thus becomes critical to upho

Charter principles.

This argument becomes even more attractive legally when one studies the actual 

stance of the Charter. While the UN Charter is admittedly best known for the art

that create a minimum world order system—as represented by Article 2(4) (proh

tion on the use of force), Article 51 (exception for self-defense), and Chapter VII 

cles 39–51, addressing Security Council responsibilities)—there is certainly an eq

emphasis in the Charter on protection of human rights. The Preamble, in fact, fo

on the rights of individuals vice the rights of nations, in stating that the purpose 

Charter is

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sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of

the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other

sources of international law can be maintained, and to promote social progress and better standards

of life in larger freedom.

Article 1(3) reinforces this preambular language by stating that a principal purpose of

the organization is “to achieve international co-operation in solving international

problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.” Articles 55–60 of the Charter

directly address international economic and social cooperation. Article 55, for example

emphasizes the need to promote “universal respect for, and observance of, human

rights and fundamental freedoms for all without distinction as to race, sex, language,

or religion.” The fifty-four-member Economic and Social Council, established in Article 61 and addressed in Articles 61–72, provides the means by which the humanitarian

objectives set forth in Articles 55–60 are to be addressed and then reported to the General Assembly or Security Council for action.

The Security Council, which alone under the Charter framework enjoys authority to autho

rize measures involving the use of force, can be frustrated therein when the support for

such a decision of all permanent members, required in Article 27(3), is not forthcoming.

This describes the situation in March 1999 when the Chinese and Russian delegates, despite

the support of twelve of the fifteen council members, refused to support a draft Security

Council resolution authorizing NATO-led forces to intervene in the Kosovo crisis.

It was precisely this concern that led legal experts to debate, long prior to the Kosovo

crisis, criteria that would both satisfy the need to address satisfactorily future instances

of widespread human rights abuses but at the same time preserve UN Charter principles. In 1974, Professor Lillich, anguished over the inability of the Security Council to

function in Chapter VII “all necessary means” matters, requiring the unanimous approval of the permanent members, argued that “the most important task confronting

international lawyers is to clarify the various criteria by which the legitimacy of a

State’s use of forcible self-help in human rights situations can be judged.”18 Lillich suggested that consideration of the following five criteria by a state, collective of states, or

regional organization prior to taking humanitarian action in a foreign state would ensure that Charter principles of the United Nations were upheld even if Security Council approval was lacking: the immediacy of the violation of human rights, the extent of

the violation of human rights, the existence of an invitation by appropriate authority,

the degree of coercive measures employed, and the relative disinterestedness of the

state or states invoking the coercive measures.19

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doctrine: a specific limited purpose, invasion by the recognized government, limite

ration of the mission, limited use of coercive measures, and lack of any other recou

By far the most definitive and principled approach has been offered by Professor

Moore, a former legal advisor to the Department of State. He suggested in 1974 t

tervention for the protection of human rights is permissible if it meets the follow

standards: an immediate threat of genocide or other widespread arbitrary depriv

of human life in violation of international law; an exhaustion of diplomatic and 

peaceful techniques for protecting the threatened rights to the extent possible an

sistent with protection of the threatened rights; the unavailability of effective act

an international agency or the United Nations; a proportional use of force that d

not threaten greater destruction of values than the human rights at stake and tha

not exceed the minimum force necessary to protect the threatened rights; minim

fect on authority structures necessary to protect the threatened rights; minimal i

ference with self-determination necessary to protect the threatened rights; a prom

disengagement, consistent with the purpose of the action; and immediate full rep

ing to the Security Council and compliance with applicable regional directives of 

Council.21 Moore urged that intervention for the protection of fundamental hum

rights should be permitted if carefully circumscribed:

Although it is recognized that legitimizing such intervention entails substantial risks, not perm

necessary action for the prevention of genocide or other major abuse of human rights seems to 

ent a greater risk. Opponents of any such standard should at least endeavor to weigh the risks 

mitting such intervention as carefully delimited by the suggested standard against the risk of

insulating genocidal acts and other fundamental abuse of human rights from effective respons

The critical most point with respect to the three proposed sets of criteria is that e

would permit a humanitarian response involving the use of force by a regional o

zation such as NATO in response to threats of genocide or other widespread arbi

deprivation of human life in violation of international law only if diplomatic and 

peaceful means are not available and the United Nations is unable to take effectiv

tion. Another critical point is that under each of the three proposals, the territor

tegrity and political independence of the target state is only temporarily affected

then to protect other equally significant Charter values.

These criteria, designed to ensure that territorial integrity and political independ

are preserved when humanitarian intervention to save lives is authorized, must n

theless be balanced with the right of states regarding domestic jurisdiction, as set 

in Article 2(7) of the Charter. Article 2(7) provides, “Nothing contained in the p

Charter shall authorize the United Nations to intervene in matters that are essen

within the domestic jurisdiction of any State . . ., but this principle shall not prej

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the domestic jurisdiction of states does not mesh comfortably with the requirements in

Articles 55 and 56 to cooperate with the UN in promoting respect for human rights

(nor does it with the explicit duties of states set forth in human rights treaties).

The fall of the Soviet Union, however, marked a watershed in how many states viewed

the proper exercise of domestic jurisdiction. For example, Poland insisted in 1983,

when its own declaration of martial law was under severe international criticism, that

UN organs could not even consider human rights questions in a particular state unless

there existed a violation of human rights and fundamental freedoms that was gross,

massive, and flagrant, that established a consistent pattern, and that endangered international peace and security.23 By 1991, however, Poland had endorsed the following

conclusion of the Moscow Meeting of the Conference on the Human Dimension of the

Conference on Security and Cooperation in Europe (CSCE):

The participating states emphasize that issues relating to human rights, fundamental freedoms, democracy and the rule of law are of international concern, as respect for these rights and freedoms constitutes

one of the foundations of the international order. They categorically and irrevocably declare that the

commitments undertaken in the field of the human dimension of the CSCE are matters of direct and legitimate concern to all participating states and do not belong exclusively to the internal affairs of the

State concerned.24

Today, the issue of domestic jurisdiction is rarely raised in UN fora or other international discourse in other than a perfunctory manner.25

Humanitarian Intervention in Context

The most significant post-Charter example of humanitarian intervention absent Security Council approval, other than Kosovo, occurred in the Congo in 1964. The

Stanleyville intervention was unlike the 1965 interventions in the Dominican Republic

by U.S. Marines or the December 1989 intervention in Panama, ordered to protect

American lives. The intervention in the Congo was directed by the leaders of three

states to protect not only their own nationals but also the nationals of third states and

of the country in which the intervention occurred. As Professor Lillich explains, “the

Congo airdrop was a classic occasion of humanitarian intervention, and the Dominican Republic, at least initially, was a classic case of forcible self-help.”26

The Congo crisis presented legal issues nearly parallel to those faced by NATO in 1999.

In 1964 several thousand Congolese and foreigners had been captured by the faction

led by Antoine Gizenga in Stanleyville. The captured civilians were being held as hostages, and Gizenga was threatening to kill them if his demands were not met. There is

no doubt that this constituted a violation not only of the UN Charter but also of the

Geneva Conventions; no one disputed that, but the Security Council was unable to

agree upon a course of action. Instead, the Council ceded authority to the Organization

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no alternative, much as it would in the later Kosovo crisis, cooperated with other con

states (Britain and Belgium) in mounting an airdrop of paratroopers without UN Se

Council authority. These forces landed at Stanleyville and rescued the hostages.27

Interestingly, while there was much political criticism, led by the Russian ambass

to the UN, of the allied intervention, there has been little scholarly legal criticism 

ing violation of Article 2(4) of the Charter in the Stanleyville operation. Not one 

commentator has found that the use of limited force represented in the collective 

of Britain, Belgium, and the United States impaired the long-term territorial inte

or political independence of the Congolese state. In fact, it can be argued that the 

bility of the government was enhanced once the hostage crisis was resolved.28

A similar judgment can be reached in the case of Kosovo. When fighting broke o

early 1998 between Federal Republic of Yugoslavia (FRY) authorities and Kosovo 

nian paramilitary units, commonly known as the Kosovo Liberation Army (KLA

became clear the Serb offensive was designed to eliminate Kosovar resistance. Th

United Nations responded to the extreme violence with Security Council Resolut

1160, 1199, and 1203.29 When fighting continued, NATO leadership threatened a

strikes; this in turn led to negotiations between U.S. envoy Richard Holbrooke an

FRY leadership, which produced a 12 October 1998 accord between Holbrooke a

President Milosevic. Agreements were signed on 15 October 1998 between NATO 

the FRY, and on 16 October 1998 between the Organization for Security and Coo

tion in Europe (OSCE) and the FRY.30 When the follow-on peace negotiations in 

1999 at Rambouillet, France, failed to produce a peace settlement the FRY was w

to sign and the Serbs once again escalated the violence against ethnic Albanians i

Kosovo, NATO forces entered Yugoslavia as part of a humanitarian intervention 

force Serb forces from Kosovo and to bring an end to the violence against the eth

Albanians of this province.31

The NATO determination to intervene in Kosovo under other than UN Security 

cil authority came after the Russian and Chinese permanent representatives to th

curity Council advised in early March 1999 that their governments would not su

a draft resolution that would authorize the use of force to stop the Serb attacks in

Kosovo. Neither Russia nor China had impeded passage of Resolutions 1160, 119

1203. These resolutions, under Chapter VII of the UN Charter, called upon both 

and KLA forces to end the fighting, required Serb forces to withdraw, called upon 

forces to cooperate with investigators and prosecutors from the War Crimes Trib

the Hague, and endorsed the 15 and 16 October 1998 monitoring agreements br

by Richard Holbrooke, the architect of the Dayton Peace Accords in Bosnia.32

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to sign the Rambouillet agreement in mid-March 1999 (calling for a cease-fire, Kosovo

autonomy, and a NATO peacekeeping force), and commenced an offensive designed to

drive all Albanian resistance from Kosovo. On 24 March 1999, NATO directed execution of Operation ALLIED FORCE against Serbian aggression and human rights violations. The operation continued until 9 June 1999.33

In the first eight days of the operation, the UN High Commissioner for Refugees

(UNHCR) reported that some 220,000 persons were forcibly expelled from Kosovo to

neighboring states, principally Albania, by Serbian forces. The OSCE Verification Mission in Kosovo was to estimate that over 90 percent of the Kosovo Albanian population—

some 1.45 million people—had been displaced by the conflict by the time it ended.34

Although the Security Council had never authorized the intensive bombing campaign,

it endorsed the political settlement that was reached and agreed to deploy an extensive

“international security presence” in parallel with an “international civil presence.” The

considerable responsibilities of each of these missions were spelled out in detail in UN

Security Council Resolution 1244 of 10 June 1999.35

Legal Rationale for the Intervention in Kosovo

Immediately following the start of bombing on 24 March 1999, NATO representatives

of the five member states on the Security Council claimed that “NATO’s actions were

necessary to avoid a ‘humanitarian catastrophe.’”36 The German foreign minister, Klaus

Kinkel, had earlier argued that “under these unusual circumstances of the current crisi

situation in Kosovo, as it is described in Resolution 1199 of the UN Security Council,

the threat of and if need be the use of force by NATO is justified.”37

The British position on the use of force in Kosovo was stated by Foreign Minister Anthony Lloyd in January 1999 before the House of Commons Select Committee on Foreign Affairs. In response to a question concerning whether there was a legal right for

NATO to intervene in the humanitarian crisis in Kosovo to save lives, absent Security

Council authorization, Minister Lloyd stated, “Within those terms yes. International

law certainly gives the legal basis in the way that I have described. . . . We believe . . .

that the humanitarian crisis was such as to warrant that intervention.”38

Professor Christopher Greenwood, who represented Great Britain before the International Court of Justice defending NATO’s action in the Case Concerning the Legality of

the Use of Force in Kosovo, explained Britain’s legal position when he stated that

there is a right of humanitarian intervention when a government—or the factions in a civil war—create a human tragedy of such magnitude that it creates a threat to international peace. In such a case, if

the Security Council does not take military action, then other states have a right to do so. It is from

this state practice that the right of humanitarian intervention on which NATO now relies has

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laws what the Yugoslav Government is doing[,] . . . if the Security Council cannot act, the rest 

world has to stand aside. That is not what international law requires at the end of the century.

Professor Antonio Cassesse, defending the Kosovo humanitarian intervention fro

ethical, not legal, perspective, has nevertheless stated that under certain strict con

tions “resort to armed force may gradually become [legally] justified even absent 

authorization by the Security Council.”40 The criteria Cassesse would require for 

justification are the following:

(i) gross and egregious breaches of human rights involving loss of life of hundreds or thousand

nocent people, and amounting to crimes against humanity, are carried out on the territory of 

eign state, either by the central governmental authorities or with their connivance and suppor

because the total collapse of such authorities cannot impede those atrocities;

(ii) if the crimes against humanity result from anarchy in a sovereign state, proof is necessary t

central authorities are utterly unable to put an end to those crimes, while at the same time refu

call upon or to allow other states or international organizations to enter the territory to assist i

minating the crimes. If, on the contrary, such crimes are the work of the central authorities, it 

shown that these authorities have consistently withheld their cooperation from the United Na

other international organizations, or have systematically refused to comply with appeals, recom

dations or decisions of such organizations;

(iii) the Security Council is unable to take any coercive action to stop the massacres because of d

ment among the Permanent Members or because one or more of them exercises its veto power.

(iv) all peaceful avenues which may be explored consistent with the urgency of the situation to a

solution based on negotiation, discussion and any other means short of force have been exhauste

(v) a group of states (not a single hegemonic Power, however strong its military, political and eco

authority, nor such a Power with the support of a client state or an ally) decides to try to halt the 

ties, with the support or at least the nonopposition of the majority of the Member states of the U

(vi) armed force is exclusively used for limited purpose of stopping the atrocities and restoring re

for human rights, not for any goal going beyond this limited purpose. Consequently, the use of f

must be discontinued as soon as this purpose is attained. Moreover, it is axiomatic that use of fo

should be commensurate with and proportionate to the human rights exigencies on the ground. 

more urgent the situation of killings and atrocities, the more intensive and immediate may be th

tary response thereto. Conversely, military action would not be warranted in the case of a crisis w

slowly unfolding and which still presents avenues for diplomatic resolution aside from armed fo

It is significant that the facts of the Kosovo crisis precisely satisfy each of the fact

quired by Cassesse to provide legal justification for humanitarian intervention ou

Charter parameters. It is also striking how similar and parallel in content Cassess

criteria for humanitarian intervention are to the eight proposed by Professor Mo

twenty-five years earlier.

If the British justification for resort to force under the doctrine of humanitaria

tervention per Professor Greenwood was the clearest and most compelling, the 

legal rationale was the least centered and most confusing. In fact, the official go

ment statements of legal justification for American participation never mentio

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States addressed instead a number of factors—some legal, some policy driven—that

justified its actions.

On 29 March 1999, after five days of NATO bombing, President Clinton offered the fol

lowing rationale for U.S. participation: “Make no mistake, if we and our allies do not

have the will to act, there will be more massacres. In dealing with aggressors,... hesitation is a license to kill. But action and resolve can stop armies and save lives.”42 Before the

UN General Assembly, President Clinton stated, “By acting as we did, we helped to vindicate the principles and purposes of the U.N. Charter, to give the U.N. the opportunity it

now has to play the central role in shaping Kosovo’s future. In the real world, principles

often collide, and tough choices must be made. The outcome in Kosovo is helpful.”43

As international legal scholar and writer Gary Sharp has accurately summarized, the

former president’s justifications “focused . . . on “moral imperative[s]” and the politica

interests of America and NATO, and his War Powers Report did not refer to any international legal authority for the air strikes against Serbia-Montenegro. The White House

argued, however, that the NATO bombing campaign was backed internationally by Security Council Resolutions 1199 and 1203, in that they affirmed “that the deterioration

of the situation in Kosovo constitutes a threat to the peace and security of the region.”

Specifically, the United States contended that Resolution 1199 authorized the use of

force by United Nations members’ to compel compliance with its terms because it was

a Chapter VII resolution, though the resolution does not explicitly authorize the use of

force. The United States also contended that Resolution 1203 was to protect personnel

monitoring the cease-fire, though the monitors had been withdrawn before the NATO

air strikes began.44

The justifications of a number of the contributor states, including the United States, re

flect an uneasy recognition that the Charter system is inadequate to address certain of

the humanitarian crises that may come before the UN, if unanimity among the five

permanent members of the Security Council continues to be a requirement. Only the

United Kingdom, Belgium, and Germany, among the NATO participants, have directly

addressed the matter and found that the authorization of the Security Council was not

necessary in Kosovo since the action was supportive of, rather than contrary to, the val

ues represented in Article 2(4), thus obviating a need for that body to consider the matter.

The United States, unfortunately, fashioned a rather contrived and disingenuous approach to justification for intervention by claiming the Security Council had provided

the necessary authorization by implication in its earlier resolutions on Kosovo, despite

the lack of any specific reference thereto.

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Kosovo thus requires we once again examine the law of humanitarian interventio

relates to Charter values, on the one hand, and required Charter procedures, on t

other. Kosovo is especially appropriate for consideration since it met all the requ

ments for humanitarian intervention under pre-Charter law. Specifically, the hor

dous crimes against humanity, mass expulsions, and war crimes involved were w

recognized and little disputed. The intervention had as designed only to redress t

threat to international peace and security and to end the abuses resulting from th

mass violations by Serb forces, not to disturb the territorial integrity or political 

pendence of the FRY. Equally important, the intervention was collective in natur

suant to the decision of NATO, a responsible body acting to carry out the will of 

world community—a community unable to act through a United Nations Securi

Council resolution under Chapter VII of the Charter.

Professor Louis Henkin suggests that the likely result of the Kosovo intervention

less the unanimity requirement can be separated from Security Council decision

humanitarian intervention, will be the establishment of a precedent whereby stat

collectives, confident that the Security Council will acquiesce in their decision to in

vene, shift the burden of the veto. Instead of seeking authorization in advance by re

tion subject to veto, states or collectives will act and challenge the Council to termi

the action. A permanent member favoring the intervention could frustrate the ad

tion of such a resolution.45

Henkin argues that Kosovo may in fact have already achieved this. He suggests th

Kosovo, Council ratification after the fact in Resolution 1244—formal ratificatio

an affirmative vote of the Council—effectively ratified what earlier might have co

tuted unilateral action questionable as a matter of law.”46

This writer must agree. The actions of the North Atlantic Council and the subseq

action of the Security Council in adopting UNSC Resolution 1244 clearly reflect 

toward a change in the law. While it is unlikely there will be a formal change in th

Charter, the NATO actions in Kosovo support an interpretation of law such that 

manitarian intervention can be authorized by regional organizations absent Secu

Council authorization when consistent with the purposes of the United Nations, 

when the careful strictures suggested by Professor Moore are applied to ensure th

neither the territorial integrity nor the political independence of the target state 

impacted in a way that would implicate Article 2(4) of the Charter.

In Kosovo, NATO’s use of military force to prevent the continuation of massive hu

rights abuses was supportive of state practice that has established the lawfulness of 

manitarian intervention, as carefully circumscribed by Moore, Lillich, Nanda, Reis

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first consider all means short of force to address threats to international peace and security. Where diplomacy fails and egregious human rights violations are observed, the

international community must not be allowed to excuse its failure to act by references

to pre-Charter principles of nonintervention and sovereign immunity or to the Charter requirement for Security Council approval, when the lack of approval is contrary to

the values for which the Charter stands.

Notes

1. See James Terry, “Response to Ethnic Violence:

The Kosovo Model,” Brown Journal of World

Affairs (Winter/Spring 1999), pp. 235–38.

2. Louis Henkin, “Human Rights and State

‘Sovereignty,’” Georgia Journal of International Law (1995/1996), p. 37.

3. UN Charter, Art. 2(4).

4. See UN Charter, Art. 2(1), which states: “The

Organization is based on the principle of the

sovereign equality of all of its Members.”

5. Richard Lillich, “Forcible Self-Help under International Law,” in Richard Lillich and John

N. Moore, eds., Readings in International Law

from the Naval War College Review, International Law Studies 61 (Newport, R.I.: Naval

War College, 1980), p. 134; see also Ruth

Gordon, “Humanitarian Intervention by the

United Nations,” Texas International Law

Journal (Winter 1996), p. 44.

6. Lillich and Moore, eds., Readings in International Law from the Naval War College Review.

7. Anthony Arend and Robert Beck, International Law and the Use of Force (New York:

Little Brown, 1993), p. 113. Arend and Beck

note that governments are usually more capable than other parties of violating human

rights on the scale necessary to justify humanitarian intervention.

8. Ibid.

9. Ved Nanda, “Tragedies in Northern Iraq, Liberia, Yugoslavia, and Haiti: Revisiting the Validity of Humanitarian Intervention under

International Law—Part I,” Denver Journal of

International Law and Policy 20 (1992), p. 331.

10. Ibid.

11. Ibid., p. 311.

12. Ibid., p. 332.

13. Ibid., p. 311.

14. See, for example, Ian Brownlee, “Humanitar

ian Intervention,” in Law and Civil War in

the Modern World, ed. John N. Moore (Balti

more, Md.: Johns Hopkins Press, 1974), p.

218, in National Security Law, ed. John N.

Moore and Robert F. Turner (Durham, N.C.

Carolina Academic, 1990), pp. 151–52.

15. Ibid.

16. Lillich, “Forcible Self-Help under International Law,” p. 136.

17. See discussion in Moore and Turner, eds.,

National Security Law, pp. 148–49.

18. See Richard Lillich, “Humanitarian Intervention: A Reply to Dr. Brownlee and a Plan for

Constructive Alternatives,” in Moore and

Turner, eds., National Security Law, pp. 152–53

19. Ibid., p. 153.

20. Nanda, “Tragedies in Northern Iraq, Liberia,

Yugoslavia, and Haiti,” p. 311.

21. John N. Moore, “Toward an Applied Theory

for the Regulation of Intervention,” in National Security Law, pp. 141–42.

22. Ibid., p. 142.

23. UN Doc. E/CN.4/1983/SR.40/Add.1.

24. 30 INT. LEG. MAT. 1670, 1672 (1991).

25. See Louis Sohn, “The New International

Law: Protection of the Rights of Individuals

Rather than States,” American University Law

Review 32 (1982), p. 1.

26. Lillich, “Forcible Self-Help under International Law,” p. 137.

27. Ibid., p. 136.

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29. United Nations Security Council Resolution

(UNSC Res.) 1160, 31 March 1998, determined that the situation in Kosovo constituted a threat to international peace and

security and condemned the excessive use of

force by Serbian authorities. UNSC Res.

1199, 23 September 1998, demanded that

“all parties, groups and individuals immediately cease hostilities and maintain a ceasefire in Kosovo.” UNSC Res. 1203, 24 October

1998, endorsed the October 1998 cease-fire

agreement and further condemned all acts of

violence and terrorism. See Terry, “Response

to Ethnic Violence,” for a full discussion of

these measures.

30. The 15 October 1998 agreement between the

FRY and NATO established an air verification mission for NATO forces to enforce the

requirements of UNSC Res. 1160 and 1199.

The 16 October 1998 agreement between the

OSCE and FRY established a verification

mission for the OSCE on the ground in

Kosovo, again to ensure compliance with

UNSC Res. 1160 and 1199. The OSCE is a

fifty-five-member body that serves as an instrument for early warning, conflict prevention, and crisis management in Europe. Both

the United States and Russia are members. It

has no military arm.

31. Operation ALLIED FORCE was executed on 24

March 1999. See UNSC press release SC/

6657, 24 March 1999.

32. See James Terry, “The Importance of Kosovo

to NATO,” ABA National Security Law Report

(July 1999), pp. 1, 2, 4.

33. See W. Gary Sharp, Sr., “A Short History of

the Kosovo Crisis,” ABA National Security

Law Report (July 1999), pp. 3, 6.

cember 1999, available at www.osce.o

kosovo/report/hr.

35. UNSC Res. 1244, 10 June 1999, also s

forth President Milosevic’s 9 June 19

agreement to comply with NATO’s sc

for a Serb withdrawal from Kosovo.

36. See UNSC press release SC/6657, p. 9

37. Deutcher Bundestag: Plenarprotokoll 1

vom 16.10.1998, 21329.

38. House of Commons Minute of Evide

taken before Foreign Affairs Commit

January 1999, p. 35.

39. Christopher Greenwood, “Yes, But Is 

gal?” Observer, 28 March 1999, p. 2.

40. Antonio Cassesse, “Ex Iniuria Ius Ori

International Legitimization of Forci

manitarian Countermeasures Taking 

in the World Community?” European 

of International Law 10 (1999), p. 25.

41. Ibid., pp. 25–26.

42. “The President’s News Conference,” W

Compilation of Presidential Documen

March 1999, pp. 25–26.

43. Statement of President Clinton befor

UNGA, 21 September 1999, quoted i

J. Steiner and Philip Alston, Internati

Human Rights in Context, 2d ed. (Ox

U.K.: Oxford Univ. Press, 2000), pp. 6

44. W. Gary Sharp, Sr., Jus Paciarii: Emer

gal Paradigms for UN Peace Operatio

(Stafford, Va.: Paciarii International L

1999), pp. 313–14.

45. Louis Henkin, “Editorial Comments: 

Kosovo Intervention: Kosovo and the 

Humanitarian Intervention,” America

nal of International Law 93 (1999), p. 

46. Ibid.

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Defense of U.S. Nationals

Intervention in Panama

Since the conclusion of World War II, one of the predominant forms of internati

violence has been mixed civil-international conflict. Within that category, interve

to protect nationals has been the most frequent activity for the United States. In 

seminal article on this subject, Professor Richard Lillich wrote in 1980:

If you go back to the first instances in which the United States sought to protect nationals by t

of contingents ashore, you will find about 188 cases in which these forces allegedly protected t

and the property of American citizens, mostly in Latin America but in the East and Near East 

It was deemed to be permissible under international law, there was nothing wrong with this as 

could legally use forces to protect the lives and property of their citizens abroad. It was forcible 

help, but it was a permissible sanction to protect the human rights of your citizens, including t

property rights. There was no doubt that it was not deemed to be intervention under customa

national law. Even those people who said it was intervention would then go on to say it was pe

ble intervention because it was for a permissible purpose.1

Protection of nationals may be thought of either in the context of defense or acti

below the threshold of Article 2(4) of the UN Charter. If necessary and proportio

there is substantial support for the lawfulness of such actions.2

Such was the case 

the United States intervened in Panama in 1989 to protect U.S. citizens lawfully p

pursuant to our obligations under the Panama Canal Treaty.

The 1989 Intervention in Panama

Operation JUST CAUSE, the U.S. December 1989 military intervention in Panama

ordered, according to President George H. W. Bush, to protect U.S. lives, restore o

and protect the integrity of the Panama Canal Treaty.3

It was the fifth such incurs

into that nation in a century.4

From the perspective of international law, this use 

force was justified then, and can be today, as a legitimate use of American militar

power in defense of U.S. and Panamanian national interests.

The use of the military instrument, under the best of circumstances, will engend

ternational criticism. JUST CAUSE was no exception. The Soviet Union used tradi

CHAPTER FOUR

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countries universally condemned the incursion within the Organization of American

States (OAS) and within the United Nations.5

(Strangely, this criticism was far more vo

cal than it had been when the Panamanian strongman nullified the victory of opponents to his puppet regime the preceding May.) Britain and other Western European

nations were supportive.

What this use of military power in Panama emphasized was that criticism is short-lived

when both the people in the state in which the intervention occurs and the opposition

party of the intervenor nation support the action as within their respective national in

terests. For the people of Panama, the intervention represented fulfillment of a thenongoing civic movement for democratization, their vital economic interest in political

change (they recognized that U.S. economic sanctions would be lifted only if the dictator General Manuel Noriega were deposed or surrendered to face American drug and

conspiracy charges), and an appeasement of the newly critical attitude of the international community toward conditions in Panama.

The Threat to U.S. National Interests

For more than two years prior to the 20 December 1989 intervention by U.S. Southern

Command (USSouthCom) forces, Washington had attempted to resolve the crisis in

Panama through negotiation. That effort was directed toward protecting the thirty-five

thousand Americans in Panama, combating the drug transshipment trade from Colombia (which was being coordinated in Panama City), and ensuring that the operation of the Panama Canal remained secure.

U.S. concern grew when in May 1989 opposition candidates on a slate headed by

Guillermo Endara appeared to have soundly beaten the Noriega slate in the national

elections. Noriega quickly nullified the election. Memories remain fresh of the brutal

beating the day after the election of Second Vice President–Elect Guillermo Ford by

thugs from Noriega’s “Dignity Battalions.”

Harassment of U.S. military personnel and their dependents increased significantly after

the election. On 15 December 1989, General Noriega declared his military dictatorship to

be in a “state of war” with the United States. This statement followed a declaration by his

puppet regime that he was now “Maximum Leader of the Panamanian People.” Noriega’s

declaration of war was coupled by thinly veiled threats against U.S. citizens, including

statements to the effect that he looked forward to seeing American corpses floating in the

Panama Canal.

On 16 December, forces under Noriega’s command shot and killed First Lieutenant

Robert Paz, an unarmed Marine, and wounded another. Both were assigned to U.S.

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cident, a U.S. naval officer, similarly assigned and traveling with his wife in Panam

City, was arrested without cause and brutally beaten. His wife was interrogated a

then threatened with sexual abuse. Believing that this pattern of violence would 

tinue, President Bush acted to protect U.S. lives and interests and to restore demo

in Panama on behalf of the legitimately elected Endara government.

Application of International Law

The law supporting U.S. intervention in defense of nationals can be found in bot

ternational agreement and custom. The cornerstone of the law regulating coercio

tween states is the minimum world-order system represented by Articles 2(4), 2(

51 of the United Nations Charter, as described in chapter 2 of this monograph.6

T

provisions of Article 2 preclude the use of armed force by one state against anoth

ticle 51 authorizes one exception, the inherent sovereign right to use military for

self-defense. The UN Charter system requires strict accountability, however, befo

projection of force into the territory of another state can be justified.

The 1989 intervention in Panama must be tested against each of the several cond

required to justify the use of military force in self-defense under Article 51. The f

condition, in the case of defense of nationals or otherwise, is the existence of an 

attack or the imminent threat of armed attack upon one’s territory or citizens. In 

cember 1989, U.S. citizens lawfully residing in Panama pursuant to Panama Cana

Treaty provisions, their property, and an international waterway vital to U.S. nati

power were all imminently threatened with armed attack. Not only had threateni

rhetoric (to include a declaration of war) placed the Canal Treaty provisions in im

nent risk, but attacks on U.S. citizens, coupled with allusions by Noriega to furth

“corpses,” made more attacks likely. Further, there was every indication that this 

would continue as long as General Noriega remained in power.

A further condition relates to the possibility of an alternative to military force th

might have returned the U.S.-Panamanian relationship to an acceptable status qu

UN Charter contemplates a hierarchy of responses, envisioning armed force only 

other responses have been attempted and have failed or are obviously without ap

tion. In the case of Panama, all other reasonable measures had been addressed. E

form of diplomatic (including recalling the U.S. ambassador), economic (such as 

tions), and legal initiative (even the indictment of Noriega) had been attempted, 

conditions had only worsened.

The use of force was seriously questioned by some international legal scholars an

tain Latin American nations.7

Nonetheless, a detailed scholarly analysis supports 

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tional Court of Justice (ICJ), notes that international law “by no means permits [selfdefense] in every case of illegality, but on the contrary, confines it to a very narrow

class of illegalities.8

Professor Ian Brownlee of Oxford University sets the parameters

clearly: “Provided there is control by the principal, the aggressor state, and an actual

use of force by its agents, there is ‘an armed attack.’”9

This view was further expanded

by the ICJ in its 1979 ruling “Concerning United States Diplomatic and Consular Staff

in Tehran” (United States v. Iran). The court found Iranian actions in seizing American

diplomats to be an armed attack on the United States.10

John Norton Moore was to categorize the actions carried out by Noriega’s forces

against U.S. citizens and interests as being within the scope of an “armed attack,” concluding that “a state is entitled to respond against aggressive attack, whether that is a

direct attack using armies on the march, or whether it is low intensity conflict or guerrillas or terrorist attack.”11

The more significant legal issue in this case of protection of nationals may not be

whether the United States was permitted to respond to attacks on its personnel but

whether it could take those actions necessary to preempt reasonably anticipated future

acts of violence against its citizens in Panama through removal of Noriega. The United

States has always maintained that Article 51 of the United Nations Charter does not

create a new principle but rather reiterates the inherent right of self-defense recognized by customary international law.12 In that light, the right of self-defense is not

limited to responding to an actual armed attack but includes preemptive or anticipatory self-defense, as described in Chapter III. Secretary of State Shultz affirmed this

view during the Libyan crisis in 1986, when he stated the United States “is permitted to

use force to pre-empt future attacks, to seize terrorists, or to rescue its citizens when no

other means are available.”13

Four basic arguments in favor of anticipatory self-defense have been advanced, and

each has application with respect to the intervention in Panama.14 First, Article 51 embraces the inherent right of self-defense (which includes anticipatory self-defense).

Second, it is very difficult to distinguish acts that constitute preparation for aggression

(but might not justify responding coercion under a restrictive view) from others that

constitute elements of an attack. Third, the destructive power of modern weaponry

makes it unreasonable to expect a state to absorb a first strike before responding.15

Finally, a more restrictive position would only benefit an aggressor.16

Under the “minimum world order system” addressed in Chapter III and represented

principally by Articles 2, 2(7), and 51 of the UN Charter, the U.S. intervention in Panama must also be measured against the customary international-law principle of

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braced, at least implicitly, within Article 51, the same arguably cannot be said for 

portionality of response.”17 Professor McDougal and Dr. Feliciano of Yale Univer

Law School have defined the rule as follows:

Proportionality in coercion constitutes a requirement that responding be limited in inten

magnitude to what is reasonably necessary promptly to secure the permissible objectives o

defense. For present purposes, these objectives may be most comprehensively generalized 

conserving of important values by compelling the opposing participant to terminate the c

tion which necessitates the responding coercion.18

This definition, as noted previously, requires merely a rational relationship betwe

intensity of the attack and the intensity of the response. Although the relationshi

not approach precision, a nation subject to a number of state-sponsored attacks 

citizens is not entitled, for example, to destroy in its entirety the capital city of th

fender state.

Other canons of military practice, such as conservation of resources, support thi

ciple of restraint in defense. The United Nations has condemned defensive action

greatly exceed the provocation as illegal reprisals.19 Where a continuation of host

beyond the triggering event or events is reasonably to be expected, however, as w

case in Panama, a response that anticipates requirements of a continuing nature 

yond the scope of the initial attack would be legally appropriate. The addition, o

December 1989, of some 9,500 troops from Fort Bragg and Fort Ord (among oth

augment the thirteen thousand SouthCom soldiers already in Panama can hardly 

viewed as exceeding the parameters established by this rule, given the size of the 

under Noriega’s control.

Application of Regional Arrangements

In addition to the regime established by the United Nations Charter, the United S

and Panama are bound by the Charter of the OAS, the Inter-American Treaty of 

rocal Assistance (Rio Treaty), and the Panama Canal Treaty.20 At the time of the P

ama intervention in 1989, Latin American nations were particularly sensitive to t

provisions of the Rio and OAS agreements, because of their view that the United 

had violated their tenets between 1981 and 1984, when it had been laying mines 

araguan ports and planning and directing attacks by Nicaraguan resistance force

Contras, on ports, oil installations, and naval bases.

The ICJ had ruled in the case of Nicaragua v. United States that the assistance giv

the United States to the military and paramilitary activities of the Contras throu

nancial, training, weapons, intelligence, and logistics support constituted a clear 

of the principles of nonintervention under provisions of the OAS and Rio accord

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had not, as the United States maintained, amounted to an armed attack that could have

authorized the collective countermeasures taken by the United States. In making these

findings, the ICJ ruled that the U.S. actions in Nicaragua had resulted in an infringement of territorial sovereignty under both agreements, as well as the UN Charter.22 It is

small wonder, then, that the Latin American nations expressed concern over the U.S.

intervention in Panama.

OAS Charter

The prohibitions against the use of force in the OAS Charter are phrased in language

that is even more categorical than that of Article 2(4) of the UN Charter—a reflection

of the long and painful history of the Latin American states. Article 13, for example, es

tablishes: “No State or group of States has the right to intervene, directly or indirectly,

for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference

or attempted threat against the personality of the State or against its political, economic and social elements.” Article 20 is equally clear with respect to territorial integrity: “The territory of a State is inviolable; it may not be the object, even temporarily,

of military occupation, or of other measures of force taken by another State, directly or

indirectly, on any grounds whatsoever.”

The one exception to these comprehensive prohibitions, and the one relied upon by the

United States in taking action to protect American citizens and interests in Panama, is

Article 22, which provides: “Measures adopted for the maintenance of peace and security in accordance with existing treaties do not constitute a violation of the principles

set forth in Articles 18 and 20.” The measures addressed in Article 22 include the right of

self-defense under Article 51 of the UN Charter, as well as diplomatic and economic actions, to the extent that they are not considered regional enforcement initiatives pursuan

to Article 53 of the Charter. Because the U.S. measures in Panama satisfy the self-defense

criteria of the UN Charter, they likewise trigger the exception specified in Article 22 of

the OAS Charter.

Another article within the OAS Charter is relevant to the U.S. military action. Article

3d provides: “The solidarity of the American States and the high aims which are sough

through it require political organization of those states on the basis of the effective exercise of representative democracy.” Not only had General Noriega violated this provision in May 1989, when he refused to allow the Endara government to assume power,

but the abuses heaped upon his opponents had violated similar provisions of the 1953

American Declaration of the Rights and Duties of Man.23

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OAS Charter is a political, rather than legal, requirement;24 however, the court ha

asserted that nothing precludes a state from assuming a binding and enforceable 

national commitment of this kind.25 When Panama committed itself to the multi

1953 declaration pledging to preserve these rights for its people, it had assumed a 

ing obligation that could be enforced by other states party to the declaration.26

The Rio Treaty

This multilateral agreement authorizes self-defense measures similar to those tha

be taken under the OAS Charter and the UN Charter. Article 3 provides that the 

undertake “to assist in meeting the attack in the exercise of the inherent right of 

vidual or collective self-defense recognized by Article 51 of the Charter of the Un

Nations.” This provision reinforces the U.S. right in the UN and OAS Charters to 

measures in self-defense when the criteria established for an armed attack are me

Panama Canal Treaty

The strongest tenet underlying U.S. actions was the bilateral Canal Treaty itself. Unde

cle 4, the United States had not only the right but the duty to protect the waterway. T

sic U.S. responsibility was to operate and defend the Panama Canal until its transfer t

Panama per the terms of the agreement. Even after the Noriega regime’s illegal seizur

power, the United States continued to do what it had done since the entry into force 

treaty in 1979—provide for the safe and orderly transit of vessels through the canal w

ensuring increased Panamanian participation in its management and operation.

During 1988 and 1989, however, the Noriega regime engaged in a systematic cam

to harass and intimidate American and Panamanian employees of the Panama C

Commission and members of the U.S. forces. In 1989 alone, there were over thre

dred violations of the U.S. military bases by Panamanian Defense Forces (PDF) p

nel. Over four hundred U.S. personnel were detained, and 140 U.S. personnel we

in danger.27 When this dangerous and provocative behavior reached an intolerabl

in mid-December 1989, President Bush was compelled to act to end the threat to

American and Panamanian lives as well as to canal operations.

Meeting the Weinberger Criteria for Intervention

From the perspective of the heavily Democrat U.S. Congress, the fact that the initiativ

the carefully circumscribed criteria established by Secretary of Defense Caspar Weinb

for intervention in 1984 was critical. Senate Majority Leader George Mitchell stated i

diately after the intervention, “I support the President’s decision. It was made necessa

the actions of General Noriega.”28 House Speaker Thomas S. Foley echoed these senti

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asked for my support, and I gave him that assurance. The decision is justified.”29

These statesmen had been two of the principal protagonists in the 1984 debates concerning

the use of military force following the Beirut bombing of the Marine battalion headquarters and after the Grenada intervention. Those debates, precipitated by the military services

over the appropriate circumstances in which military personnel could be put in harm’s way

led to a clear articulation of six criteria for intervention by Secretary Weinberger before the

National Press Club on 28 October 1984. These criteria, applauded then and since by the

Congress, required that any use of force be predicated upon a matter deemed vital to our

national interest, that the commitment be undertaken with the clear intention of winning,

that political and military objectives be clearly defined, that the forces committed be sufficient to meet the objective, that the support of the American people be reasonably assured,

and that the commitment of U.S. forces be a last resort.30

The intervention in Panama met each of these tests, and because it did, the support of

the American people and Congress was overwhelming. If we have learned one lesson

from Panama, it is that legal criteria and political criteria are related. Where use of military force can be defended as necessary and proportional under the canons of international law, the American people will support it as a proper exercise of national power.

Fifteen years later, when the George W. Bush administration struggled to offer justifica

tion for Operation IRAQI FREEDOM, it would have been well served to place its arguments in terms of the Weinberger criteria.31

Notes

1. Richard Lillich, “Forcible Self-Help under

International Law,” in Richard Lillich and

John N. Moore, eds., Readings in International Law from the Naval War College Review, International Law Studies 62 (Newport,

R.I.: Naval War College, 1980), p. 134.

2. See Thomas Farer, “Intervention in Civil

Wars: A Modest Proposal,” Columbia Law

Review 67 (1967), p. 266; S. Friedman, “Intervention, Civil War and the Role of International Law,” Proceedings of the American

Society of International Law (1965), p. 67;

John N. Moore, “Legal Standards for Intervention in Internal Conflicts,” Georgia Journal of International and Comparative Law 13

(1983), p. 191. The significant difference

noted in each of these articles between protection of nationals and humanitarian intervention addressed in the last chapter is the

fact that protection of sovereign interests is

involved in the former but not the latter.

3. President Bush cited these as the objectives

of the intervention in his speech to the nation at 7:40 AM (EST) on 20 December 1989

4. In 1908, U.S. forces landed in Panama, which

had gained independence from Colombia in

1903 with American support, in the first of

four landings in that nation in the next decade. Although it had not been an intervention per se, in 1964 twenty-three persons

were killed and three hundred injured during nationalist riots against the American

presence. U.S. forces assigned in Panama

were used to quell them.

5. “OAS Votes to Censure U.S. for Intervention,” Washington Post, 23 December 1989, p

A7. Also see Many Governments Condemn

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December 1989, p. A34.

6. 59 Stat. 1031; UNTS 993; 3 Bevans 1153.

Signed at San Francisco on 26 June 1945, entered into force on 24 October 1945, reprinted in U.S. Department of State Pub.

2368, pp. 1–20.

7. Two weeks after the intervention, sixty-nine

liberal politicians and activists, including

1972 presidential nominee George

McGovern, took out a full-page ad in the

New York Times decrying the Panama initiative. The open letter to the president stated:

“Your invasion of Panama is illegal . . . a violation of the Constitution . . ., the UN Charter, [and] the OAS and Canal Treaties.”

8. Sir Gerald Fitzmaurice, “The Problem of the

Authority of International Law and the

Problem of Enforcement,” Modern Law Review 19 (1956), p. 1.

9. Ian Brownlee, International Law and the Use

of Force by States (Oxford, U.K.: Oxford

Univ. Press, 1963), p. 373.

10. See Concerning United States Diplomatic and

Consular Staff in Iran (U.S. v. Iran), 1980 ICJ

Merits, paras. 17, 24, 25, 57, and 91. See also

James Terry, “The Iranian Hostage Crisis: International Law and U.S. Policy,” JAG Journal

32 (1982), p. 94. The state-sponsored terrorist activity in Iran is further described in

chapter 5, below.

11. John N. Moore, “International Law and Terrorism,” ROA National Security Report 10

(October 1986), p. 4.

12. See Art. 1915, U.S. Navy Regulations, 1973.

13. New York Times, 16 April 1986, p. A8.

14. Richard Erickson, Legitimate Use of Military

Force against State-Sponsored International Terrorism (Maxwell Air Force Base, Ala.: Air Univ.

Press, 1989), pp. 138–39. Erickson presents a

full discussion of each of these principles.

15. See George Bunn, “International Law and

the Use of Force in Peacetime: Do U.S. Ships

Have to Take the First Hit?” 39, no. 3 (May–

June 1986), pp. 69–80.

16. See Marjorie M. Whiteman, Digest of International Law 12 (Washington, D.C.: U.S. Government Printing Office, 1965), pp. 49–50.

17. “Necessity” embodies the concept that the

use of military force to protect or defend vital national interests, American citizens, or

minent threat of armed attack shall b

sorted to only after all other lesser m

have been exhausted. See J. O’Brian, 

Meaning of Necessity in Internationa

World Polity 1 (1966), p. 166, and W.

Downey, “The Law of War and Milita

cessity,” American Journal of Internati

Law 41 (1953), p. 251.

18. Myres McDougal and F. Feliciano, La

Minimum World Public Order (New H

Conn.: Yale Univ. Press, 1961), p. 242

19. See the Security Council’s discussion 

UN SCOR (2232–2285 mtgs.), UN D

PV 2285–2288 (1981).

20. Revised Charter of the Organization o

ican States, 2 UST 2394; TIAS 2361; 1

UNTS 3. Amendments, 21 UST 607; T

6847. Entered into force for the Unite

on 13 December 1951. Amendments e

into force on 27 February 1967. Rio T

Stat. 1681, TIAS no. 1838; 21 UNTS 7

ama Canal Treaty, with Annex, Agreed 

ute, and related letter. TIAS 10031; sig

Washington, D.C., on 7 September 19

entered into force on 1 October 1979, 

to reservations and understandings.

21. Judgment, ICJ Rep. (1986), reprinted 

American Journal of International Law 

(1986), pp. 785–807.

22. Ibid.

23. Res. XXX of the Ninth International 

ence of American States (1953), in H

Rights: The Inter-American System, ed

Thomas Buergenthal and R. Norris (

Ferry, N.Y.: Oceana, 1984), vol. 1, par

chap. 4, p. 1.

24. U.S. v. Nicaragua, ICJ Rep., para. 259

25. Ibid.

26. As a party to the declaration, the Uni

States was entitled to make this claim

27. U.S. State Dept., Current Policy, no. 1

(Washington, D.C.: Bureau of Public 

22 December 1989).

28. Washington Post, 21 December 1989, 

29. Ibid.

30. Secretary Weinberger’s speech was re

verbatim in the New York Times, 29 O

1984, pp. A1, A4.

31. See chapter 7, below.

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Response to International Terrorism

A third genre of lesser conflict is reflected in the devastation directed against the

United States on 11 September 2001. The attacks by the al-Qa‘ida terrorists on th

World Trade Center in New York and on the Pentagon in Washington, D.C., do n

represent a new kind of international conflict. They do, however, depart significa

from traditional warfare between states adhering to the law of armed conflict. Th

tacks reflect nontraditional violence against states and innocent civilians by indiv

or groups supported by rogue states for political ends without regard to the civil

behavior on the battlefield that underpins the four 1949 Geneva Conventions.1

The Context

In light of this significant threat to democratic values, several U.S. presidents, mo

cently George W. Bush in late 2003, have articulated a right to respond “preempt

when evidence exists of an imminent threat of terrorist violence.2

Ronald Reagan

ministration issued the seminal “preemption” doctrine in 1984. In the words of f

Defense Department official Noel Koch, President Reagan’s National Security De

Directive (NSDD) 138, issued 3 April 1984 “represent[ed] a quantum leap in cou

ing terrorism, from the reactive mode to recognition that proactive steps [were]

needed.”3

NSDD 138 is classified, but Robert C. McFarlane suggested at a Defens

Strategy Forum on 25 March 1985 that it included the following key elements: T

practice of terrorism under all circumstances is a threat to the national security o

United States; the practice of international terrorism must be resisted by all legal

means; the United States has the responsibility to take protective measures when

there is evidence that terrorism is about to be committed; and the threat of terro

constitutes a form of aggression and justifies acts in self-defense.4

While the moral justification for this U.S. policy may be obvious, the problem of d

state support or linkage that warrants a U.S. military response, a legal framework s

portive of such a proactive policy, and reasonable force alternatives responsive to th

threat, is more difficult. It is to these particular concerns that this chapter is addres

CHAPTER FIVE

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United States, or any nation, with justification for response against that state. Covert

intelligence operatives are necessary for identifying and targeting terrorist training

camps and bases and for providing effective warning of impending terrorist attacks.

Unfortunately, as noted by Secretary of State George Shultz in 1984, “We may never

have the kind of evidence that can stand up in an American court of law.”5

The question, then, is how much information is enough, from several perspectives.

Caspar Weinberger has underscored the very real and practical difficulties that exist for

military planners in attempting to apply a relatively small quantum of force over great

distance with uncertain intelligence. He has accurately noted the difficulty of ensuring

success without accurate information, and he has echoed the relationship between

public support and demonstrable evidence of culpability in any resort to force by the

United States in defending against terrorist attack.6

No U.S. administration official, past or present, has been able to define adequately,

“how much evidence is enough.” As asserted by Secretary Shultz, the demand for probative, or court-sustainable, evidence affirming the complicity of a specific sponsoring

state is an impractical standard, one that has contributed to the impression—prior to

the articulation of NSDD 138 in 1984—that the United States was inhibited from responding meaningfully to terrorist outrages. This view was certainly reinforced when

in 1979 the U.S. government allowed fifty-two American citizens to remain hostage to

Iranian militants for more than four hundred days. Hugh Tovar has correctly noted,

“There is a very real danger that the pursuit of more and better intelligence may become an excuse for nonaction, which in itself might do more harm than action based

on plausible though incomplete intelligence.”7

Legal Framework for Response

An examination of authorized responses to state-sponsored terrorism requires an understanding that terrorism is a strategy that does not follow traditional military patterns. In fact, a fundamental characteristic of terrorism is its violation of established

norms. Whereas the conduct of warfare is governed by carefully defined norms that

survive despite their frequent violation; the sole norm for terrorism is effectiveness. International law requires that belligerent forces identify themselves, carry arms openly,

and observe the laws of war.8

Prominent among the laws of war are the principles of

discrimination (or noncombatant immunity) and proportion. Terrorists, however, do

not distinguish between the innocent (noncombatants) and the armed forces of the

country in which the attack is made.

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rorism are innocent third parties enhances the shock value of attacking them. Al

tively, the terrorist may decree that everyone living in a certain society is guilty o

perceived sins and deserving of punishment. In the contemporary language of de

economics, they wage countervalue rather than counterforce warfare.

Why is this important? It is important because it tells us that the only credible re

to terrorism is deterrence. There must be an assured, effective reaction that impo

unacceptable costs on the terrorists and those who make possible their activities. 

ever, this reaction must counter the terrorists’ strategy within the parameters of i

national law, and more specifically, the law of armed conflict. Those who suggest

otherwise understand neither the inherent flexibility of international law nor the 

of violating that law.9

International law has long recognized the need for flexible application. The unde

tenet of that law, the prohibition against the use of force, has as its principal tene

right of response in self-defense. Self-defense, however, is an inherent right, shap

custom and subject to customary interpretation. Its codification within Article 5

the UN Charter recognizes this inherent quality: “Nothing in the present Charte

impair the inherent right of individual or collective self-defense if an armed atta

curs against a Member of the United Nations.”

According to some legal scholars, though, responding coercion cannot be justifie

der Article 51 unless the force directed against the “political independence” of an

state has as its purpose “the permanent subjugation of that state to domination.”

interpretation envisions a broad-based and far-reaching attack; arguably, howeve

attack against a smaller or isolated segment of a nation’s governmental, military, 

cial apparatus is legally analogous to an attack against the whole. If U.S. citizens, 

mats, or military personnel are attacked or held captive by terrorists in an attemp

induce a change in American policy, the political independence of the United Sta

clearly been subjected to attack.

The final clause of Article 2(4) of the United Nations Charter, which forbids thre

use of force “in any other manner inconsistent with the Purposes of the United N

tions,” supports this interpretation. The principles codified in the Charter have it 

their primary purpose to “bring about by peaceful means, and in conformity wit

principles of justice and international law, adjustment of or settlement of interna

disputes or situations that might lead to a breach of the peace.”11 Terrorist seizure

attacks on U.S. citizens or instrumentalities are certainly uses of force “in a mann

consistent” with the Charter. Article 2(4) and Article 51, its exception, must be re

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McDougal explains,

Article 2(4) refers to both the threat and use of force and commits the Members to refrain from “the

threat or use of force against the territorial integrity or political independence of any state, or in any

manner inconsistent with the Purposes of the United Nations”; the customary right of defense, as lim

ited by the requirements of necessity and proportionality, can scarcely be regarded as inconsistent

with the purposes of the United Nations, and a decent respect for balance and effectiveness would

suggest that a conception of impermissible coercion, which includes threats of force, should be countered with an equally comprehensive and adequate conception of permissible or defensive coercion.12

A second restriction that doctrinaire legal scholars attempt to impose would permit

self-defense against state supporters of terrorist violence only when an attack “occurs.”

This interpretation is based not only on Articles 51 and 2(4) of the Charter but also on

Article 2(3), which states, “All members shall settle their international disputes by

peaceful means in such a manner that international peace and security, and justice, are

not endangered.” The late Ian Brownlie argued that while “isolated or sporadic” incidents may constitute aggression, they do not reach the level of an “armed attack.”13 It

has thus been argued that because the definition of armed conflict is narrower than aggression, “certainly self-defense against armed bands would not seem to be included

within the permitted area.”14

Such rigid interpretations do violence to the very values underlying Article 51 of the

Charter and to the customary international law it seeks to codify. Neither the plain language of Article 51 nor U.S. practice in addressing incidents of aggression under its inherent right of self-defense suggests such a restrictive interpretation.

Other considerations in addressing terrorist violence include the fact that the real-time

relationship between threat and threat recognition is often compressed in the terrorist

conflict arena. Strategy development is thus limited with respect to the nonmilitary ini

tiatives, short of attack, that must always be the option of choice. Traditional means of

conflict resolution, authorized by law and customary practice, are precluded, because

terrorism by definition is covert in execution, unacknowledged by its state sponsor, and

practiced with violent effectiveness. Thus diplomacy and conciliation may be of little

utility in responding to a state that denies its actions and ultimately designs its practices to eliminate normal, lawful intercourse between nations.

It must be noted, however, that noncoercive efforts to avoid terrorist attack have their

importance. Counterterrorism expert Dr. William Farrell notes, “Diplomatic action,

alone or in concert with allies that could conceivably impact successfully upon a terrorist group and/or its sponsor, should be considered and employed initially. Political

and economic sanctions are also alternatives which demand consideration before military force is employed.”15

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ous of protecting its citizens and resources from terrorism, is limited. One of the 

things a democratic government can do is educate the public and its military abo

realistic options available in any crisis. Professor Abraham Miller suggests, “The 

of an invincible and omnipotent America that can rescue hostages under any cir

stance is patently unrealistic. It is a mindset that comes from a failure to realize h

lucky the Israelis were at Entebbe and from the charges and countercharges of th

election campaign, during which the Iranian hostage crisis was played to the hilt

This further suggests that measures justified by law may not be feasible in terms 

cution. Another value, identified by Dr. Farrell, that must be considered before u

military force is moral justification.

Claiming justification in the protection of democratic values while employing ta

that are similar to those of the terrorists undermines public confidence. There m

some immediate emotional release no matter what the response, but thoughtful 

tion over the long term will tolerate only action based on moral grounds.17 These 

concerns underscore the need to weigh long-term values besides countering the i

diate terrorist threat when determining an appropriate policy.

Proactive Responses Authorized under International Law

When the decision to use force is made, it must be as closely tied to a clear object

would an action at the higher end of the coercion spectrum. Because the relation

between objective and threat is often unclear in the low-intensity-conflict arena, 

strategy to fight state-supported terrorist violence must always focus on the unde

political purpose of the states supporting terrorist organizations. That purpose i

questionably the removal of the United States from the region concerned.

How do we counter this purpose, this objective? George Shultz was correct when 

stated that our policy “must be unambiguous. It must be clearly and unequivoca

policy of the United States to fight back—to resist challenges, to defend our inter

and to support those who put their lives on the line in a common cause.”18 Imple

tation of this proactive policy requires the fullest use of all the weapons in our ar

These should include not only defensive measures that reduce U.S. vulnerability 

also new legal tools and agreements on international sanctions, as well as the coll

tion of other concerned governments. While we should use our military power o

conditions justify it and other means are not available, there will be instances, as 

curred after 11 September 2001, when the use of force is the only alternative. In t

circumstance, our actions were fully justified as necessary defensive measures to 

nate a continuing threat to the United States.

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dence of state support exists, we must publicize that relationship and attack with discrimination, striking only those targets that most affect the well-being of the state

sponsor. The “center of gravity” in the sponsoring state must always be that target the

destruction of which will most significantly undermine the target state’s will to commi

future acts of terror. Since terrorism is a form of international conflict and thus bound

by its rules, lawful response is limited to targets that do not enjoy civilian immunity.

Military targets may be preferable for two other reasons as well. First, the selection of

military targets—while the terrorists are attacking our civilians in violation of international law—should alleviate any concern on the part of other states. Additionally, selec

tion of military targets would refocus attention on the fact that terrorism is in fact a

form of armed conflict.

Establishing Linkage between State Sponsor and Actor: The al-Qa‘ida Model

Causal connectivity or linkage, the most important element in justifying the use of

force in response to terrorist violence, can be established only if effective intelligence

operatives are positioned to discover who the terrorists are, where they are, and who

supports them. While U.S. intelligence did not prevent the attacks on the World Trade

Center and the Pentagon, it did quickly establish critical linkages afterward. It was

quickly learned that the perpetrators of the 11 September 2001 violence were members

of the al-Qa‘ida organization and that it was being protected and given safe haven in

Afghanistan by the Pushtun Taliban militia.

The Taliban was the strongest of the ethnic militias in Afghanistan by mid-2001 and

controlled the political machinery of state in Kabul. During that period it constituted

the de facto government of Afghanistan, but it was unable to conduct normal foreign

relations or to fulfill international legal obligations. Independent press reports concluded that it had become so subject to the domination and control of al-Qa‘ida that it

could not pursue independent policies with respect to other states.19 Nonetheless, Afghanistan continued to have the essential elements of statehood.20 Accordingly, it was

called upon by the international community—in UN Security Council Resolutions

1333 (2000), 1267 (1999), and 1214 (1998)—to fulfill its obligations and the international agreements prior Afghan governments had signed.21 The Taliban militia consistently refused.

Professor Robert Turner has explained that when “[Osama] bin Laden masterminded

the attacks on New York and Washington, Afghanistan [was] in breach of its state responsibility to take reasonable measures to prevent its territory from being used to

launch attacks against other states.”22 Prior to 11 September 2001 al-Qa‘ida supplied

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over its primary opposition, a multiethnic (but non-Pushtun) grouping known a

Northern Alliance.23

By 11 September 2001 and for some time thereafter the Taliban, with al-Qa‘ida s

port, effectively controlled nearly 90 percent of Afghan territory, exercising gover

mental functions therein: operating a system of taxation, administering Islamic c

appointing and confirming regional governors, district leaders, mayors, and othe

gional and local officials, and imposing law and order. Therefore, and because th

Taliban, with its al-Qa‘ida supporters, clearly opposed the coalition’s use of force 

Operation ENDURING FREEDOM, we must conclude that an armed conflict in fac

isted between two “high contracting parties” to the Geneva Conventions, justifyi

U.S. actions exercised in self-defense under Article 51 of the UN Charter.24

Protection of Diplomats from Terrorist Violence: The Iranian Hostage Crisis

Nor was 11 September 2001 the first time the United States had been attacked by 

rorists so clearly linked to a state sponsor. The 1979 attacks on the U.S. embassy i

ran and the consulates at Tabriz and Shiraz followed by one week the entrance of 

shah into the United States for medical treatment.25 On 4 November 1979 approxim

three hundred demonstrators overran the embassy compound in Tehran. The Islam

government of Iran normally maintained ten to fifteen uniformed policemen outs

embassy compound as well as a nearby contingent of “Pasdaran” Revolutionary Gu

On the day of the attack, however, these security personnel made no effort to det

discourage the demonstrators from seizing the premises; they simply disappeared

The invading militants initially seized not only the lower floor of the chancery bu

the U.S. security officials who had gone out to attempt to negotiate with them. A

more than two hours, they gained entry to the upper floor of the chancery and se

the remaining personnel, with the exception of eleven American staff members w

held out in the main vault for a further hour.28

Despite repeated calls for help to the Iranian Foreign Ministry, no Iranian securit

forces were sent to protect the Americans during this three-hour assault. No attem

made by the Iranian government to clear the embassy premises, rescue the personn

hostage, or persuade the invaders and demonstrators to terminate their action.29 In 

one Iranian spokesman stated in an interview the following day that the Revoluti

Guards had indeed been sent to the embassy following the appeal for help, but n

secure the release of the hostages and premises. According to a government state

of 5 November 1979: “Yesterday the American Embassy Chargé d’Affaires immed

contacted the Foreign Ministry and stated he lacked security and that he would n

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vent clashes there. Last night the brothers who are occupying the Embassy thanked the

guards for their presence and for maintaining security there.”30 On the same morning

that this official statement was made, militant students seized the American consulates

in Tabriz and Shiraz; once again the Iranian government took no protective action.31

The failure of the government of Iran on 4 and 5 November to protect the American

diplomatic premises and its complicity in the attack—from the moment the Revolutionary Guards were sent to assist the militants—directly violated earlier assurances of

that government to the United States.32 During an attack on the embassy in February

1979, the government of Iran had moved quickly and efficiently to remove the insurgents.33 Later, Prime Minister Mehdi Bazargan sent a letter to the embassy expressing

deep regret, indicating Iran’s readiness to indemnify the United States for the damage

caused to its premises “by anti-revolutionary elements,” and conveying assurances that

the government had “made arrangements to prevent the repetition of such incidents.”3

On at least two other occasions prior to the November seizure, the embassy’s chargé

d’affaires, L. Bruce Laingen, discussed the security situation with Iranian Foreign Minister Ebrahim Yazdi, who repeated a pledge that Iran would fulfill its international obli

gation to protect the U.S. embassy.35

Following the 4 November takeover, the remaining fifty-three captured Americans wer

subjected to a harrowing ordeal in various “prisons.” At the outset, some were paraded

blindfolded with hands bound before hostile and jeering crowds.36 For much of their

captivity the hostages were to be bound and frequently blindfolded, forced to remain

silent for extended periods of time, denied mail or the right to communicate with each

other, subjected to interrogation, threatened with criminal trials, and threatened with

death in the event of an American rescue attempt. Some were also physically abused

and threatened directly with weapons.37 All contact between the hostages and the U.S.

government, even by telephone, was prohibited.38 American archives and documents

were seized and ransacked, with the apparent intent of using them as evidence in the

event of hostage trials.39

Diplomatic Efforts

In the days immediately following the November 1979 attacks, the U.S. government

moved quickly and quietly to secure the hostages’ release and the clearing of the embassy through diplomatic means. Prime Minister Bazargan was immediately contacted

and his government, on 5 November 1979, gave assurances “that the hostages would be

released.”40 Then, on 6 November, Bazargan resigned, in apparent protest at lack of sup

port of the Revolutionary Council in opposing the militants’ actions.

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route to Iran at the head of a presidential mission. Before the Clark delegation co

reach Tehran, the effective head of the Iranian state, the Ayatollah Ruhollah Khom

forbade any Iranian contact with the mission.41 On 12 November a newly appoin

“overseer” at the Iranian Foreign Ministry, Abdol Bani-Sadr, announced that befo

hostages could be released the United States would have to admit that the proper

the fortune of the shah were stolen, promise to refrain from further intervention 

nian affairs, and extradite the shah to Iran for trial.42 Clearly, the Iranian authorit

had assumed full responsibility for the seizure of the diplomats and were unwilli

grant their immediate and unconditional release.

Thus four early developments indicated to President Jimmy Carter that diploma

alone would not secure the hostages’ freedom: Khomeini’s support for the terror

the collapse of the relatively moderate Bazargan government, the unacceptable co

tions announced by Bani-Sadr, and Khomeini’s order forbidding contact with Am

can representatives.43

As a result of the unwillingness of the Iranian leadership to accept diplomacy as 

to a solution, President Carter undertook a series of actions to demonstrate that 

Iranian actions were legally and morally unacceptable and that the United States 

determined to press Iran for an early release of the hostages. American efforts in

application for relief at the International Court of Justice, bilateral contacts with 

governments, multilateral initiatives at the United Nations, unilateral economic a

tions, advocacy of multilateral economic measures, and a failed attempt to use fo

Resort to the United Nations

The United States requested that the Security Council consider options for the re

of the American hostages and the restoration of the diplomatic compound. This 

quest came in the form of a letter dated 9 November 1979 from the U.S. perman

ambassador at the United Nations to the Security Council.44 In response, the pres

of the Security Council, speaking for the Council, appealed the same day for the 

of the hostages.45 The president of the General Assembly similarly called for the r

of the hostages.46

On 25 November 1979, Secretary General Kurt Waldheim requested that the Secu

Council convene to work out a peaceful solution to the crisis.47 Addressing the C

on 29 November, Waldheim declared that the situation in Iran “threatens the pea

stability of the region and could well have very grave consequences for the entire

world.”48 On 4 December the Security Council unanimously adopted Resolution 

which called upon the government of Iran “to release immediately the personnel 

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tion and allow them to leave the country.”49 Resolution 457 also requested the secretary

general to lend his good offices to the immediate implementation of the resolution and

take all appropriate measures to that end.

On 29 December the United States again requested the Security Council to consider

measures to induce Iran to comply with its international obligations. At that meeting,

Secretary of State Cyrus Vance, speaking for the United States, stated that “the United

States Government has, with determination, persistence and patience, pursued every

peaceful channel available to us.”50 Two days later the Security Council adopted Resolution 461, which reaffirmed the earlier Resolution 457. This measure deplored Iran’s detention of the hostages and once again called for their release.51 Iran did not comply

with the resolutions, and a Soviet veto blocked an American request that the Security

Council implement sanctions.52

Application to the International Court of Justice

When it became apparent that violations of diplomatic immunity were supported by

the ruling government in Iran and not merely acts of individual or group terrorism,

the United States instituted proceedings against Iran in the ICJ. On 29 November a request for Interim Measures of Protection was filed.53 Jurisdiction was grounded upon

Article 36 of the Statute of the Court.54 It was founded as well upon a number of treaties to which the United States and Iran are party and that govern the status, rights, and

treatment to be accorded diplomatic personnel and premises.55

One day later, the president of the International Court of Justice, Sir Humphrey Waldock

in the exercise of the power conferred upon him by the Rules of Court, addressed a telegram to the governments of Iran and the United States calling attention to the need to ac

in such a way as would enable any subsequent order of the court to have an appropriate

effect.56 A hearing was held on the request for provisional measures;57 thereafter, on 15

December 1979, the court unanimously ruled that Iran should release the American hostages and restore the seized premises to exclusive American control.58

On 17 December the Iranian foreign minister, Sadegh Ghotbzadeh, stated that “the

prefabricated verdict of the Court was clear to us in advance; for this reason, Iran’s

Chargé d’Affaires at the Hague was ordered to officially reject the decision of the

Hague Court.”59 President Waldock set 15 January 1980 as the deadline for the filing of

an American memorial and 18 February for the Iranian countermemorial.60 Oral proceedings were scheduled to begin on 19 February, but the United States obtained a

postponement, in order to determine whether any of Secretary Waldheim’s initiatives

would bear fruit. They did not, and 18 March 1980 was assigned as the date for oral

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addressed the potential objections that Iran might have raised to its subject-matt

risdiction. Similarly, the court also considered possible substantive defenses that 

might have raised to the American allegations of abuse. The ICJ ultimately found

had in its order of 15 December 1979, that this case was not—as Iran had claime

letter of 9 December—a matter solely within Iran’s domestic jurisdiction. The co

stated, “A dispute which concerns diplomatic and consular premises and the dete

of internationally protected persons, and involves the interpretation or applicatio

multilateral conventions codifying the international law governing diplomatic an

sular relations, is one that by its very nature falls within international jurisdiction

Iran had also maintained that the hostage matter was only a “marginal and secon

aspect” of an “overall situation containing much more fundamental and more co

elements [that cannot be examined] divorced from its proper context, namely the w

political dossier of the relations between Iran and the United States over the past 25 y

The ICJ emphasized, as it had in its 15 December ruling, that the seizure of a nation’

bassy, consulates, and diplomatic personnel could never be considered secondary 

marginal to any other alleged violation.64 The ruling emphasized that the secretar

eral had referred to the holding of diplomatic hostages as a “threat to . . . peace.”

The court noted that the Security Council, in unanimously passing Resolution 45

stressed the international community’s concern at such action.65 In ruling agains

the ICJ observed that “no provision of the Statute or Rules of Court contemplate

the court should decline to take cognizance of one aspect of a dispute merely bec

that dispute has other aspects, however important.”66

Regarding substantive areas, the ICJ examined the special circumstances claimed 

Iran in defense. It found Iran’s broad, unspecific allegations of interference in int

affairs unconvincing and emphasized that if Iran had desired to present specific e

dence of such claims, it certainly had been presented with the opportunity to do 

More importantly, the court stressed that even if Iran had been able to establish i

ference, that would not have been a defense or justification for the seizure of dip

matic personnel.68 President Waldock also delineated the contribution of Islam to 

international norm of diplomatic protection.69

Even Judge Tarazi, in his dissenting opinion, concurred with the majority regard

lamic leadership in this area. Quoting a 1937 lecture of Professor Ahmed Rechid 

Istanbul Law Faculty, Tarazi wrote, “In Arabia, the person of the Ambassador has 

ways been regarded as sacred. Muhammed consecrated this inviolability. Never w

ambassadors to Muhammed or to his successors molested. One day, the envoy of 

eign nation, at an audience, granted to him by the Prophet, was so bold as to use

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you put to death.’”70

The court’s majority opinion noted that under the customary international law and

under the agreements cited earlier—agreements to which the United States and Iran

are signatories—diplomatic law has developed sanctions designed to be effective without destroying relations between states.71 Unfortunately, Iran neither admitted the validity of nor adhered to the International Court’s December 1979 suggestion of interim

measures. Nor did Iran recognize the May 1980 decision on the merits.72

Economic Measures

In addition to the unsuccessful efforts at securing the hostages’ freedom via diplomacy,

and acting through the United Nations and the International Court of Justice, the

United States took additional measures. On 12 November 1979, President Carter, unde

the Trade Expansion Act, banned U.S. purchases of Iranian oil.73 He did so to make

clear that the United States would not allow itself to be blackmailed because of oil requirements.74 The United States then learned that Tehran planned to withdraw all Iranian assets held in American banking institutions. The removal of funds would have

jeopardized billions of dollars in American claims against those assets—debts owed to

both government and private enterprise.75 The ripple effect of a mass withdrawal would

have threatened the entire international financial system.

The president acted quickly to protect the interests of American creditors by blocking

the removal of the Iranian funds. In order to do this, the president invoked the provisions of the International Emergency Powers Act of 1977.76 This act permits the freezing of foreign assets when there exists “an unusual and extraordinary threat to the

national security, foreign policy, and economy of the United States.”77 The secretary of

the treasury implemented the president’s executive order on 14 November 1979 with a

series of Iranian Assets Control Regulations.78

A month later, the United States informed the Iranian chargé d’affaires in Washington

that personnel assigned to the Iranian embassy and consular posts in the United States

would be limited to fifteen at the embassy and five per consulate.79 From January to

March 1980, the United States exercised restraint, in order to allow time for the initiatives of Secretary General Waldheim, as well as those of intermediaries, to work. Unfor

tunately, factional disputes in Iran prevented Bani-Sadr and Iranian authorities from

honoring their pledges regarding the authority of the United Nations Commission in

Iran, and this in turn stifled Waldheim’s diplomatic initiatives.

President Carter then moved to impose unilateral sanctions on Iran, and in April 1980

acted to prohibit all financial dealings and exports to Iran except food and medicine.80

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travel, and financial transfers related to Iran.81 This executive order also restricted 

under the Immigration and Nationality Act.82 Finally, that same month, the Unit

States broke diplomatic relations with Iran and ordered the Iranian embassy in W

ington closed.

While these unilateral measures were being implemented, our allies in Europe, Ja

and Canada were also imposing economic and diplomatic sanctions against Iran

effort to maintain a common front. At a 21 April 1980 meeting of the leaders of 

European Community, nine allied nations reaffirmed their support for severe san

against Iran and stated they would seek legislation from their respective legislativ

branches enabling them to join the effort to isolate Iran internationally in the ev

hostage crisis was not resolved by 17 May.83 When no progress had been made by 

date, these allies moved to accommodate an American request that no new contr

entered into with Iran and that all contracts negotiated between these nations an

since 4 November 1979 be disavowed.84

Unfortunately, several European states—Great Britain included—were unable to 

parliamentary support for the entire package of sanctions promised. Thus their i

while significant, failed to isolate Iran completely from a vital source of imports—

rope. The Soviet Union compounded the problem when it announced that if Iran

ports were blockaded or primary commodities became unavailable from the Wes

Soviet Union would neutralize those measures by providing all necessary assistan

Specifically, the Soviet Union offered to move Iranian goods on its own roads an

way system if Iran’s harbors should be blocked.85 It also promised to supply Iran 

primary foodstuffs if these became unavailable from customary sources. 86

The economic measures adopted by the Western nations, while psychologically s

ing, thus proved singularly ineffective. In fact, the only noticeable impact was a r

of Iranians behind Khomeini and the diversion of Iranian attention from interna

culties to the foreign challenge. These measures ultimately tended to fragment in

tional support for the United States while making it politically difficult for the Ir

to back down. In short, economic pressures, although perhaps politically expedie

means to demonstrate presidential resolve, had the counterproductive effect of u

ing Iranian opposition without coercing cooperation.

Humanitarian Intervention

Concurrently with its judicial, diplomatic, and economic initiatives, in Novembe

the United States began planning a military operation to rescue the hostages. Cit

same legal justification claimed by Israel in rescuing its citizens from terrorists at

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Somalia, in 1977, the United States entered Iran during the night of 24 April 1980.87 A

team of approximately ninety American servicemen departed the aircraft carrier USS

Nimitz (CVN 68) by helicopter for a remote, deserted airstrip in southern Iran, approximately three hundred miles from Tehran. There they met a C-130 transport aircraft for refueling. The plan then called for a flight to Tehran.88 However, three of the

eight RH-53 helicopters were disabled at the rendezvous point by mechanical failures

resulting from sand intake, and the mission was aborted .89 The remaining aircraft departed Iran, but not before a further helicopter and transport collided and exploded.90

International Law Violations with Respect to U.S. Diplomats

Article 29 of the 1961 Vienna Convention on Diplomatic Relations obligated Iran to

treat each American diplomat with “due respect,” to take “all appropriate steps to prevent any attack on his person, freedom, or dignity,” and to ensure that diplomatic personnel were not subjected to “any form of arrest or detention.”91 Article 37 of this

convention extends these same privileges and immunities to members of the administrative and technical staffs, as well as to their families.92 These protections embody “the

oldest established and the most fundamental rule of diplomatic law.”93 This was a point

repeatedly emphasized by the ICJ in its 15 December 1979 order discussing provisional

measures with respect to the American hostages:

There is no more fundamental prerequisite for the conduct of relations between states than the inviolability of diplomatic envoys and embassies, so that throughout history nations of all creeds and cultures have observed reciprocal obligations for that purpose: . . . the obligations thus assumed, notably

those for assuring the personal safety of diplomats and their freedom from prosecution, are essential,

unqualified, and inherent in their representative character and their diplomatic function.94

In addition to its obligation to protect diplomatic personnel, Iran also had a duty to

bring the attacking militants to justice. Its failure to take either step laid the groundwork for subsequent American claims for reparations.95

When Khomeini’s regime threatened the hostages with criminal trials, the provisions

of Article 31 of the 1961 Vienna Convention, which exempts diplomatic personnel from

the criminal jurisdiction of a host state and frees them of any obligation to appear as wit

nesses, also came into play.96 This general immunity is so ingrained as customary international law that, in the view of one leading authority, no case can be cited where,

without consent, a diplomatic agent has been tried or punished by local courts.97

History records many cases of diplomatic envoys who conspired against the receiving

states but were not prosecuted. Thus, in 1584, when the Spanish ambassador in England,

Don Bernardino de Mendoza, plotted to depose Queen Elizabeth, he was ordered to leave

the country. In 1587, when the French ambassador in England, L’Aubespine, conspired

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again. In 1654, when the French ambassador to England, De Bass, conspired agains

life of Cromwell, he was ordered to leave the country within twenty-four hours.98

The 1961 Vienna Convention also obligates the receiving state to protect the dipl

matic premises of the sending state, as well as its personnel. On 4 November 197

cording to Article 22 of the convention, Iran was and continued to be under an

obligation to ensure that American diplomatic premises in Iran were held inviola

and immune from search. Article 22 required Iran to ensure that its agents did n

ter the premises “except with the consent of the head of the mission.” A “specia

duty” was placed upon Iran under this article “to take all appropriate steps to p

the premises of the mission against any intrusion or damage and to prevent any 

bance of the peace of the mission or impairment of its dignity.”99 Ironically, at th

enna Conference, which approved this convention, Iran had been particularly vig

in insisting that the special duty of protection not be qualified in any way, even u

exceptional circumstances.100

Just as Khomeini’s government failed in its obligation under Article 22 to preserv

inviolability of American diplomatic premises, so too did it fail in its related obli

to ensure the protection of archives and documents present there, as required by 

cle 24.101 By approving the seizure, by ransacking and publishing documents from 

mission, and by further threatening their use as “evidence” in judicial proceeding

Khomeini government seriously impaired its international standing. By deprivin

of the respect that a state normally enjoys under the doctrine of sovereign equali

regime forfeited an opportunity to gain world sympathy and also reduced its cha

of cultivating friends and allies.102

Despite Iran’s multiple violations of the 1961 Vienna Convention with respect to

American diplomatic personnel, the diplomatic staffs of other nations—with the 

exception of the arrest of the Soviet first secretary on 26 June 1980—continued t

joy the requisite respect and protection.103

All governments have a shared interest in upholding the rights of their diplomat

resentatives, since the relations between states depend on free communication in 

myriad of interdependent ways. Iran’s adherence to diplomatic law except in the 

the United States suggested that the Khomeini regime did not want to quarrel wi

basic notion. Iran’s willingness in 1979, however, in the case of American person

defy both customary international practice as well as specific legal obligations un

scored the intensity and virulence of its anti-American posture. From Khomeini’

spective, American interference since 1953, when the Central Intelligence Agency

helped to overthrow Prime Minister Mohammed Mossadegh and restore the sha

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“Satan” embodied Khomeini’s notion of an ultimate foe, and the spasm of lawlessness

that began on 4 November 1979 is perhaps best explained as a catharsis after three decades of bitterness and frustration.104

As in most developing countries, there were few internal factors—whether from opposition parties, a critical press, or an enlightened public—that could have constrained

Khomeini to uphold the law. In the atmosphere of fervent nationalism that accompanied Khomeini’s sweep to power, forces for moderation were depicted as tools of foreign interests. In such an atmosphere, the militant supporters of the clerical leadership

fomented domestic pressure to violate other recognized norms as well—such as property ownership, religious freedom, and judicial protection. This combination of revolu

tion and nationalism yielded explosive results, a reordering of both Iranian domestic

society and its approach to foreign affairs.

Iran’s breach of diplomatic law appears, in retrospect, to have had a greater impact on

developed nations than it did on Iran itself or the rest of the world community. Because Iran was (and is) a vendor nation of an export commodity—oil—coveted by industrialized countries, it could survive economically despite the turbulence and

xenophobia of Khomeini’s regime.

Legal Analysis of U.S. Responses

International coercion can assume many forms. In addition to the use or threat of mili

tary force, coercion can also appear as economic or other nonviolent pressure, if it has

the effect of altering significant national interests. Coercion in its many forms is a fact

of international relations. Under the current norms of international law, coercion is

impermissible when unreasonable, and reasonableness in turn is a function of both the

necessity and proportionality of specific measures in a given context.105

Vital also to a viable system of world order is the concept of community response.106

Group action is preferred, but in situations where a community response is either unavailable or too slow, unilateral response by the attacked nation may be necessary and

legitimate.107 In the days following the Iranian hostage seizure, Washington made every

effort to mobilize the world community through the United Nations. The United State

urgently addressed the president of the Security Council on 9 November 1979, request

ing assistance in obtaining release of the hostages. The Security Council responded by

unanimously adopting Resolution 457, which called upon Iran to free the hostages and

clear the embassy premises immediately. When the Iranian government ignored this

resolution, the Council unanimously affirmed its earlier action with Resolution 461.

This second call was also ignored.

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by immediate compliance with community norms, the United States proposed en

ment measures in the Security Council. The draft resolution easily received a two

thirds majority within the Council, but a Soviet veto effectively ended any chanc

the United Nations to back its words with actions and be more than an impotent 

looker as the crisis unfolded.108

Concurrently, the United States filed an action in the International Court of Just

Both the interim measures endorsed in December 1979 and the later decision on 

merits were repudiated by Iran. These avenues having been exhausted, the United

States instituted a number of economic sanctions intended to be coercive.109 The 

of American response turned from words to deeds.

But President Carter’s inability to settle on a firm course of action made it difficu

America’s European allies to be certain where the United States was headed. For f

months after the hostage seizure, President Carter seemed ready to rely on a med

political, judicial, and economic initiatives, in the belief that rational leadership i

would eventually prevail over the militants. When on 24 April 1980 he abandone

policy without consulting the allies, he was stunned to find amazement among fr

abroad. Months earlier, Carter had similarly imposed a series of unilateral sancti

against both Iran and the Soviet Union without first preparing the Western allian

These turns of policy, taken without seeking consensus, suggested that President 

did not believe that he could successfully mobilize a community response.

The attempt at forcible rescue in April 1980, had it been successful, would have s

the American part of the problem without resolving the larger issues of diploma

rights and international order. The unsuccessful rescue operation followed an ad

tration posture wherein it had first been severe toward Iran, then lenient, then hars

again. While the Carter administration could have argued persuasively that these c

were justified in light of the constantly changing situation, the frequent reversals 

bled European allies. Had the allies followed President Carter’s initial call for stro

measures, noted one European ambassador at the time, they would have been cau

short by the change to leniency. “We would have been out on a limb and he could 

sawed it off. That’s why we are a little wary now of being told we have to be tough

As Under Secretary of State George Ball urged in early 1980, the European allies 

have an important, although narrower, interest in the Iranian crisis: “We should 

come their counsel and not resent it.”111 He stated further at the time that the Un

States should listen carefully to the urging of its allies for a unified effort to isola

politically so that the community of states could show the Iranian people “that th

ernment which violates the sanctity of an embassy becomes an international par

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In retrospect, certain implications of the 444-day Iranian hostage crisis are clear. The

continued vitality of mutual world values depends on much more than a search for national catharsis. The American public’s penchant for gestures, such as candlelight vigils

and yellow ribbons, was matched by the Carter administration’s tendency to confuse

symbol with substance and to adopt poses in the name of policy.

Politically, the crisis put Carter in a difficult position. He perceived time as on the side of

the Iranians. It appeared that the crisis controlled Carter rather than he the crisis. His

willingness to take varying approaches in dealing with the crisis met the public demand

for visible action and also provided moments of cathartic relief. In the longer term, however, this attempt to reconcile Iranian intransigence with the American appetite for action resulted in a settlement favorable to Iran. A country that confuses catharsis with

defense of its interests is a nation uncertain of its values, and President Carter’s effort to

traverse differing courses of action at the same time proved counterproductive.

Upon his inauguration, President Reagan found himself bound by the terms of the

Carter administration’s negotiated settlement, terms that the Supreme Court upheld as

legal, if not wise.113 Certain of the terms, such as the requirement to return unencumbered Iranian financial assets, did no more than honor preexisting obligations. Other

commitments that pertained directly to the official relationship between the U.S. and

Iran, such as the formation of a Joint U.S.-Iranian Claims Tribunal, could be honored

as positive contributions to community values.

Some parts of the agreement, however, were legally unenforceable. One such provision

was the requirement that the United States “will order all persons within U.S. jurisdiction to report to the U.S. Treasury, within 30 days, for transmission to Iran, all information known to them, as of Nov. 3, 1979 . . . with respect to the property and assets of

the former Shah. Violation of the requirement will be subject to civil and criminal pen

alties described by U.S. law.”114 No such order was ever issued, nor could it have been

enforced if it had been.

President Reagan’s pledge upon taking office of “swift and effective retribution” in case

of further threats to Americans abroad was clearly meant to deter future attacks as well

as reassure a concerned nation. Given the profusion of incidents throughout the world

since, however, including the 1993 World Trade Center bombing and the attacks of 11

September 2001, it is clear that President Reagan’s warnings did not turn back the tide

of disorder.

Clearly, however, the painful lessons of the Iranian hostage crisis spurred subsequent

administrations to review the entire range of alternatives available for protecting

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and property. For example, National Security Decision Directives 62 and 63, app

in the Clinton administration, clearly identified specific U.S. interests and critica

structure for protection in a more definitive way than previously.115 The George W

Bush administration, after the September 11 attacks, established the Department 

Homeland Security to directly address these threats on an institutional basis. The

tions make obvious a greater and heightened sensitivity and increased alertness t

possibility of terrorism against Americans than existed in 1979. These actions an

those addressed in chapters 11 and 12 of this monograph will go far toward prep

the United States more effectively to address future attacks while at the same tim

moting responsive contingency planning.

Notes

1. The four Geneva Conventions for the Protection of the Victims of War, dated 12 August 1949, addressed Wounded and Sick in

Armed Forces in the Field (Geneva I), 6 UST

3115; Wounded, Sick and Shipwrecked

Members of Armed Forces at Sea (Geneva

II), 6 UST 3219; Treatment of Prisoners of

War (Geneva III), 6 UST 3517; and Protection of Civilian Persons in Time of War

(Geneva IV), 6 UST 3317. The four conventions were ratified by the United States on 14

July 1955.

2. President Clinton issued Presidential Decision Directive (PDD) 62, “Combating Terrorism,” on 22 May 1998. PDD 62 made the

same points as President Reagan’s NSDD 138

and mirrored President Bush’s 2003 statements in a speech at West Point.

3. National Security Decision Directive 138, 3

April 1984, quoted in “Preemptive AntiTerrorism Raids Allowed,” Washington Post,

16 April 1984, p. A19.

4. Robert C. McFarlane, “Terrorism and the Future of Free Society,” speech delivered at the

National Strategic Information Center, Defense Strategy Forum, Washington, D.C., 25

March 1985.

5. George Shultz, “Terrorism and the Modern

World,” speech to Park Avenue Synagogue,

New York City, 25 October 1984, p. 23.

6. See Phillip Taubman, “The Shultz-Weinberger

Feud,” New York Times Magazine, 14 April

1985, p. 3.

7. Hugh Tovar, “Low Intensity Conflict: 

Responses in an Open Society,” prepa

the Conference on Terrorism and Oth

Intensity” Operations: International L

Fletcher School of Law and Diploma

Medford, Massachusetts, April 1985, 

8. The rules of land warfare are found p

ily in Hague Convention IV of 1907.

9. See James Terry, “State Terrorism: A J

Analysis,” Journal of Palestine Studies 

tumn 1980), pp. 94–117, for one view 

cost incurred when a state violates in

tional law in the name of increased s

10. See, e.g., Quincy Wright, “The Cuban 

antine,” American Journal of Internati

Law 57 (1963), p. 588.

11. UN Charter, Art. 1, para. 1.

12. Myres McDougal, “The Soviet Quara

and Self-Defense,” American Journal 

national Law 57 (1963), p. 598.

13. Ian Brownlie, “International Law and 

tivities of Armed Bands,” Internation

Comparative Law Quarterly 7 (1958), 

14. Manuel R. Garcia-Mora, Internationa

sponsibility for Hostile Acts against Fo

States (The Hague: Martinus Nijhoff

pp. 118–20.

15. William Farrell, “Responding to Terr

What, Why and When,” Naval War C

Review 39 (January–February 1986), 

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Taking: Lessons from the Iranian Crisis,”

Rutgers-Camden Law Journal 13 (1982), p. 523.

17. Farrell, “Responding to Terrorism,” p. 51.

18. George Shultz, address before the LowIntensity Warfare Conference, National Defense University, Washington, D.C., 15 January 1986.

19. See, e.g., Michael Dobbs and Vernon Loeb,

“2 U.S. Targets Bound by Fate,” Washington

Post, 14 November 2001, p. A22.

20. No Security Council document ever

claimed that Afghanistan had lost its right

to nationhood or that it had ceased to exist

as a viable state.

21. UN Security Council Resolution (UNSCR)

1333 (2000) “strongly condemn[ed]” the

Taliban for the “sheltering and training of

terrorists and [the] planning of terrorist

acts,” and “deplor[ed] the fact that the

Taliban continues to provide a safe haven to

Usama bin Laden and to allow him and others associated with him to operate a network

of terrorist training camps from Talibancontrolled territory and to use Afghanistan

as a base from which to sponsor international terrorist operations.” UNSCR

1267(1999) stated in paragraph 2 that the

Taliban’s failure to comply with the council’s

1998 demand to terminate use of Afghanistan as a base from which to sponsor international terrorism constituted a threat to the

peace. UNSCR 1214 (1998), in paragraph 13,

enjoined the Taliban to stop providing a

sanctuary and training for terrorists.

22. Robert F. Turner, “International Law and

the Use of Force in Response to the World

Trade Center Pentagon Attacks.” available at

jurist.law.pitt.edu/forumnew/34.htm.

23. Michael Jansen, “U.S. Focused Initially on

bin Laden Mercenaries,” Irish Times, 30 October 2001, available at www.ireland.com/

newspaper/world/2001/1030/wor6.htm.

24. See James P. Terry, “Al Qaeda and Taliban Detainees: An Examination of Legal Rights and

Appropriate Treatment,” in International Law

and the War on Terror, ed. Frederic L. Borch

and Paul S. Wilson, International Law Studies,

vol. 69 (Newport, R.I.: Naval War College,

2003) for a full discussion of these issues.

25. See discussion in James P. Terry, “The Iranian Hostage Crisis: International Law and

U.S. Policy,” JAG Journal 31 (1982), p. 31.

Case Concerning United States Diplomatic and

Consular Staff in Tehran (U.S. v. Iran), ICJ Gen

eral List no. 64, p. 15 (Memorial presented Jan

uary 1980) [hereafter U.S. Memorial].

27. “Iranian Security Personnel Absent,” Washington Star, November 10, 1979, p. A7.

28. U.S. Memorial, p. 13. Thirteen of the origina

66 American hostages were released on 20

November 1979—eight black Americans and

five women. Three U.S. diplomats present at

the Iranian Foreign Ministry on 4 Novembe

1979 were subsequently informed that their

protection could not be assured should they

leave the ministry, and they came to be considered hostages as well.

29. Ibid., p. 14.

30. Telephone interview with Sadeq Tabatabai, 5

November 1979 as reported in Foreign

Broadcast Information Service [FBIS] Daily

Report, 5 November 1979, p. R16. In an interview published 1 December 1979 in Beirut, the Revolutionary Guards operations

commander, asked about the role of the

Guards in the occupation of the U.S. embassy, replied, “As a matter of fact, we played

no role in the occupation of the Embassy,

which was occupied by students supporting

Imam Khomeini. The Guards’ role was to

protect the safety of the hostages and secure

the area. There were signs of a serious plot to

exploit the situation around the Embassy.

Our task was to protect the safety of both the

hostages and the students” [emphasis added].

Interview with Abu Shasrif, n.d., as-Safir

(Beirut), 1 December 1979, as reported in

FBIS Daily Report, 4 December 1979, p. 40.

31. Operations at those consular posts had been

suspended as a result of the attacks in Febru

ary 1979, and no U.S. personnel were at

these posts when the 5 November attacks oc

curred. See response by the United States, 11

December 1979, to a question presented by

the International Court of Justice on 10 December 1979, reprinted in U.S. Memorial, se

lected documents, no. 2.

32. In its memorial the United States detailed

the assurances given on 1 November, three

days prior to the seizure: “In the early morn

ing of 1 November, in anticipation of a dem

onstration in the vicinity of the U.S.

Embassy, the Embassy reported to the State

Department that the normal complement of

police was outside the compound and that

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more protection if needed. Thirty minutes

later Chargé Laingen reported that several

hundred demonstrators were marching back

and forth in front of the Embassy, but that

the police detachment had been strengthened, providing “more than enough for

now.” The Chief of Police came to the Embassy personally and met with Mr. Laingen,

who informed Washington that the Chief

was “taking his job of protecting the Embassy very seriously.” Mr. Laingen reported

that the prayer leader at the main demonstration in another location in the city, the

Ayatollah Montazeri, had repeated an announcement on the radio that the people

should not go to the Embassy. The number

of demonstrators at the Embassy varied during the day, up to 5000 or more, but protection was maintained by Iranian security

forces. That evening, as the crowd dispersed,

both the Chief of Protocol and the Chief of

Police expressed relief to Chargé Laingen

that everything had gone well.” U.S. Memorial, p. 15.

33. President Waldock of the ICJ addressed this

and other attacks in paras. 14–16 and 64.

United States v. Iran, pp. 9–10, 29.

34. See response of the United States, 12 December 1979, to a question asked by Judge Gross

on 11 December during oral argument of

U.S. request for interim measures. U.S. Memorial, p. 246.

35. Ibid., p. 15 note 3.

36. Ambassador Donald McHenry, statement to

the UN on Iran, in U.S. State Dept., Current

Policy, no. 116 (Washington, D.C.: Bureau of

Public Affairs, 1 December 1979), p. 1.

37. Ibid. See also Washington Post, 25 January 1981,

p. A21 (former hostage Malcolm Kolp reports

being held in solitary confinement for 374 of

the 444 days, and other physical abuses).

38. The only U.S. official to visit the hostages,

Representative Hansen of Idaho, did so in a

private capacity. Deprivation of contact became even more significant after the unsuccessful rescue attempt in April 1980, when

the location of the hostages was changed and

ensuring their safety became more difficult.

39. Interview with Ahmed Khomeini, Belgrade,

6 December 1979, reported in FBIS Daily Report, supp. 41, 17 December 1979, pp. 21–22.

Constable, Deputy Assistant Secretary 

for Near Eastern and South Asian Affa

fore the Subcommittee on Internation

nomic Policy and Trade of the Comm

Foreign Affairs, 8 May 1980, p. 1.

41. Ibid., p. 3.

42. U.S. State Dept., Current Policy, no. 1

(Washington, D.C.: Bureau of Public 

May 1980), p. 1.

43. Ibid.

44. UN Doc. S/13615 (1979).

45. UN Doc. S/13616 (1979).

46. UN Docs. A/6076 and A/6096 (197

(statements by the president of the 

Nations General Assembly on 9 and 

November 1979).

47. Precedent for such a request by the se

general under Article 99 of the Unite

tions Charter was firmly established 

retary General Hammarskjold when 

requested a similar Security Council 

during the Congo crisis. See chapter 

48. UN Doc. S/PV 2172 (1979).

49. UN Security Council Resolution [UNS

reproduced in U.S. Memorial, annex 46

50. Address of Secretary of State Vance b

the United Nations Security Council

cember 1979.

51. UNSCR 461, reproduced in U.S. Mem

p. 27.

52. Thirteen of fifteen members of the Se

Council voted in favor of the U.S. dra

lution calling for sanctions. East Germ

and the Soviet Union voted no.

53. U.S. State Dept., Selected Documents 

ter Sel. Doc.], no. 14 (1979), p. 5.

54. Because of the “Connally” reservation 

by the United States regarding subjec

jurisdiction of the ICJ, if there had b

applicable treaty providing for dispu

lution before the court, the United St

would have undoubtedly suffered the 

fate as France in 1956 in the case of C

Norwegian Loans, 1957 ICJ 9, 36, 43, 

jurisdiction had been found wanting 

sult of its “self-judging” reservation.

55. See, e.g., the following treaty articles: 

XXI, para. 2, of the Treaty of Amity, E

nomic Relations, and Consular Right

tween the United States and Iran, 15 

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Protocol Concerning the Compulsory Settlement of Disputes Accompanying the Vienna

Convention on Diplomatic Relations of

1961, 500 UNTS 95, 241; Article I of the Optional Protocol Concerning the Compulsory

Settlement of Disputes, the Vienna Convention on Consular Relations of 1963, 596

UNTS 261, 487; Article 13, para. 1, of the

Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents,

14 December 1973, TIAS no. 8532.

56. This request is reported verbatim at Sel. Doc.

14, p. 5.

57. The arguments made on behalf of the United

States by Mr. Civiletti and Mr. Owen for interim measures are reported verbatim in Sel.

Doc. 15 (1979), p. 2.

58. Order of December 15, 1979, U.S. v. Iran,

Provisional Measures, 1979, ICJ 16–17.

59. Tehran Domestic Service, 17 December 1979,

reported in FBIS Daily Report, 18 December

1979, p. 3.

60. U.S. v. Iran, p. 3.

61. Iran refused to participate in any manner. It

filed no countermemorial, appointed no

agent, and did not participate in the oral proceedings held on 18–20 March 1980. The only

communications received by the court from

the government of Iran were two messages,

dated 9 December 1979 and 16 March 1980.

62. See 1979 ICJ 16.

63. Message from Iran to the International

Court of Justice, 9 December 1979, quoted

in U.S. v. Iran, p. 18.

64. U.S. v. Iran, p. 18.

65. Ibid.

66. Ibid.

67. Ibid., p. 35.

68. Ibid., p. 36.

69. Ibid., pp. 37–38.

70. Dissenting Opinion of Judge Tarazi, U.S. v.

Iran, p. 55.

71. U.S. v. Iran, pp. 36–38 (discussion of the customary remedies then available).

72. It is interesting to note that the United States

did not petition the Security Council under

Article 94 of the United Nations Charter for

assistance in implementing the 4 May

tration believed that such an effort would be

unavailing since the former Soviet Union

would have vetoed such a resolution as it

had vetoed the January 13, 1980 resolution

calling for economic sanctions against Iran.

In case of such a veto, the Carter administra

tion feared that it could not obtain the necessary two-thirds vote in the General

Assembly since many Third World countries

considered the U.S. record in cases of clearly

established threats to the peace (e.g., Israeli

attacks on Lebanon) to be inconsistent.

73. The Carter administration elected not to risk

being embarrassed in the United Nations by a

Security Council veto and lack of support in

the General Assembly for a request made under the “Uniting for Peace” rationale. Unfortunately, by not exhausting this possible remedy

to force compliance with the court’s decision,

other options may have been precluded.

There was one other possible rationale for

not invoking Security Council assistance un

der Article 94. Since the Security Council, al

though a political body, would effectively be

acting as an appellate court in reviewing and

acting in the International Court of Justice’s

decision, it is quite possible that portions of

the decision favorable to the United States

might not have been supported by the council. In that case, certain U.S. options would

have been precluded and a veto of Security

Council action might have become necessary. Since the invocation of Article 94 is dis

cretionary and the court’s decision is

effective without further implementation, it

could be that the Carter administration determined it would preserve more options by

simply impressing on the world community

the importance of the 24 May 1980 decision

“President Imposes Oil Ban,” Washington

Post, 13 November 1979, p. A1.

74. Ibid., p. A16.

75. A discussion of these claims can be found in

U.S. State Dept., Current Policy 179, p. 2.

76. Exec. Order 12,170, 3 CFR 457 (1979).

77. International Emergency Economic Powers

Act, 50 USC 1702 (Supp. III 1979). This law

had been enacted in anticipation of emergency situations involving nations not on a

war footing with the United States. Preceding legislation, the Foreign Assets Control Regulations, permitted the freezing of

assets only of those nations with which the

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with Cuba required similar protection in the

late 1950s, the Cuban Assets Control Regulations were enacted. The 1977 Emergency

Economic Powers legislation precludes the

need for specific legislation each time the interests of American creditors are threatened

and allows for implementation of protective

measures despite the absence of a declaration of war.

78. U.S. State Dept., Current Policy 179, p. 2.

79. See “Iran’s Embassy Staff Cut,” Washington

Post, 13 December 1979, p. A1.

80. Exec. Order 12,205, 3 CFR 248 (1980).

81. Exec. Order 12,211, 3 CFR 253 (1980).

82. Ibid.

83. U.S. State Dept., Current Policy 179, p. 2.

84. Of our allies, Great Britain proved to be the

major surprise; Parliament refused to implement Prime Minister Thatcher’s proposed

sanctions and agreed only to suspend contracting with Iran from the date of the isolation measures. All contracts negotiated

between 4 November 1979 and 17 May 1980

remained in effect, including long-term contracts negotiated in anticipation of possible

sanctions. As a result, the impact on Iran

and the appearance of solidarity among the

allies was severely reduced.

Conversely, the United States received unexpected support from Japan and Portugal.

Japan, 90 percent dependent on foreign fossil fuels, announced in late May that it would

purchase no further Iranian crude at the announced price of thirty-five dollars a barrel,

seven dollars more at the time than Saudi

Arabian crude. The degree to which this determination by Japan was based on American efforts to impose sanctions on Iran as

opposed to the economics of the situation is

difficult to determine.

At the same time, Portugal denounced the

Iranian actions and announced an intent to

apply all the U.S.-requested measures. This

was unexpected, since the United States had

recently been critical of human rights policies in Portuguese territories.

85. “Russia Supports Iran,” Washington Post, 15

April 1980, p. A1. For a contrary interpretation of the importance of this Soviet announcement, see U.S. State Dept., Current

Policy 165 (Washington, D.C.: Bureau of

Public Affairs, April 1980), p. 2, wherein

Soviet promise of assistance to Iran. 

argues that the Soviet transportation 

were insufficient to offset the impact 

blockade or boycott.

86. Ibid., p. A1.

87. See Richard Lillich, “Forcible Self He

States to Protect Human Rights,” Iow

Review 53 (1967), p. 325, and elsewh

this chapter, for the argument that ne

customary international law nor Arti

of the Charter prohibits such acts of i

tion. Interestingly, the International C

Justice largely ignored the American 

attempt of April 1980, finding it irrel

the determination of whether Iran’s c

in seizing the diplomatic hostages an

ing the diplomatic premises violated 

tional law. U.S. v. Iran, pp. 40–41.

88. See U.S. State Dept., Current Policy 17

(Washington, D.C.: Bureau of Public 

April 1980), pp. 2–4, for a full explan

the purpose and plan of the rescue m

including the thinking that went into 

cision to abort.

89. Secretary of Defense Harold Brown l

claimed that it had been predetermin

the mission would be impossible with 

than six RH-53 helicopters. Ibid., p. 3

90. Ibid.

91. Vienna Convention on Diplomatic R

of 1961, 500 UNTS 95 [hereafter Vien

Convention]. Article 29 of the Conve

provides: “The person of a diplomati

shall be inviolable. He shall not be lia

any form of arrest or detention. The 

ing State shall treat him with due res

shall take all appropriate steps to pre

attack on his person, freedom or dign

92. Ibid., Art. 37 which, in pertinent part, p

1. The members of the family of a 

matic agent forming part of his ho

shall, if they are not nationals of th

ceiving State, enjoy the privileges a

munities specified in Articles 29 to 

2. Members of the administrative a

technical staff of the mission, toge

with members of their families for

part of their respective households

if they are not nationals of, or perm

resident in the receiving State, enjoy 

privileges and immunities specified 

ticles 29–35, except that the immun

civil and administrative jurisdiction 

receiving state specified in paragrap

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formed outside the course of their duties.

93. See Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (Dobbs Ferry, N.Y.:

Oceana, 1976), p. 135.

94. Order of 15 December 1979, p. 19.

95. It is interesting to note that the ICJ ruling in

favor of the United States with respect to

reparations (12–3) indicated that an award

could be fully determined by that court only

when the full extent of damages was known.

U.S. v. Iran, p. 43.

96. The Vienna Convention, Art. 31, provides:

1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the

receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a) a real action relating to private immovable property situated in the territory

of the receiving State, unless he holds it on

behalf of the sending State for the purposes of the mission;

(b) an action relating to succession in

which the diplomatic agent is involved as

executor, administrator, heir or legatee as

a private person and not on behalf of the

sending State;

(c) an action relating to any professional

or commercial activity exercised by the

diplomatic agent in the receiving State

outside his official functions.

2. A diplomatic agent is not required to

give evidence as a witness.

3. No measures of execution may be taken

in respect of a diplomatic agent except in

the cases coming under subparagraphs

(a), (b), and (c) of this Article, and provided that the measures concerned can be

taken without infringing the inviolability

of his person or his residence.

4. The immunity of a diplomatic agent

from the jurisdiction of the receiving State

does not exempt him from the jurisdiction

of the sending State.

Article 37 extends this immunity, with some

limited exceptions, to members of the administrative and technical staff of the diplomatic mission as well as to the families of

both diplomatic agents and staff. The ICJ, in

its 24 May 1980 decision, did not address the

threats of prosecution or threats to compel

testimony as violations of the 1961 Vienna

Conventions. The court did state, however,

to any form of criminal trial or investigation

were to be put into effect, that would constitute a grave breach by Iran of its obligations

under Article 31 of the 1961 Vienna Conven

tion.” U.S. v. Iran, p. 34.

97. Sir Ernest Satow, Satow’s Guide to Diplomati

Practice, ed. Lord Gore-Booth, 5th ed. (London: Longmans, 1979) [hereafter Satow’s

Guide], p. 120.

98. L. Oppenheim, International Law: A Treatise

ed. Hersh Lauterpacht, 8th ed. (London:

Longman’s 1955), p. 793.

99. The Vienna Convention, Art. 22, provides:

1. The premises of the mission shall be inviolable. The agents of the receiving State

may not enter them, except with the consent of the head of the mission.

2. The receiving State is under a special

duty to take all steps to protect the premises of the mission against any intrusion

or damage and to prevent any disturbance

of the peace of the mission or impairmen

of its dignity.

3. The premises of the mission, their furnishings and other property thereon and

the means of transport of the mission

shall be immune from search, requisition,

attachment or execution.

100. Official Records, vol. I, UN Doc. A. Conf. 20

14, n.d., pp. 141–43.

101. The Vienna Convention, Art. 24, provides:

“The archives and documents of the mission

shall be inviolable at any time and wherever

they may be.”

102. Iran also disregarded other requirements of

the 1961 Vienna Convention. The ICJ noted

that Iran had not met its obligations under

Article 25 of the 1961 convention to “accord

full facilities for the performance of the

functions of the [American] mission”; unde

Article 26 to “ensure to all members of the

mission freedom of movement and travel in

its territory”; and under Article 27 “to permit and protect free communication on the

part of the mission for all official purposes.”

Vienna Convention.

103. The ICJ recognized this and made a point of

contrasting the Iranian actions of 4 November 1979 with its conduct on other occasions. The court stated: “The total inaction

of the Iranian authorities on that date in the

face of urgent and repeated requests for help

contrasts very sharply with its conduct on

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Some eight months earlier, on February 14,

1979 the United States Embassy in Tehran

had itself been subjected to [an] armed attack . . . in the course of which the attackers

had taken the Ambassador and his staff prisoner. On that occasion, however, a detachment of Revolutionary Guards, sent by the

Government, had arrived promptly, together

with a Deputy Prime Minister, and had

quickly succeeded in freeing the Ambassador

and his staff and restoring the Embassy to

him. On March 1, 1979, moreover, the Prime

Minister of Iran had sent a letter expressing

deep regret at the incident, giving an assurance that appropriate arrangements had

been made to prevent any repetition of such

incidents, and indicating the willingness of

his Government to indemnify the United

States for the damage. On November 1, 1979,

only three days before the events which gave

rise to the present case, the Iranian police intervened quickly and effectively to protect

the United States Embassy when a large

crowd of demonstrators spent several hours

marching up and down outside it. Furthermore, on other occasions in November 1979

and January 1980, invasions or attempted invasions of other foreign embassies in Tehran

were frustrated or speedily terminated.” U.S.

v. Iran, p. 24.

104. After the shah’s return to power in 1953—a

return promoted by the CIA—Iran either acceded to or ratified each of the four international agreements upon which the United

States relied when it asserted ICJ jurisdiction. Although none of these agreements had

been repudiated by the Khomeini regime,

their nonapplication with respect to the

United States arguably represents thirty years

of frustration impossible to translate into a

legal context.

105. Proposals at the 1951 drafting conference for

the unratified Draft Code of Offenses against

the Peace and Security of Mankind included

ideological and economic coercion. See

Myres McDougal and F. Feliciano, Law and

Minimum World Public Order (New Haven,

Conn.: Yale Univ. Press, 1961), pp. 190–96.

The Bolivian draft used terminology that incorporated secondary methods of aggression/

coercion—methods that would have applied

to Articles 2(4) and 51 of the UN Charter:

prived of economic resources derived 

the proper conduct of international t

its basic economy is endangered so th

security is affected and it is unable to 

its own defense or cooperate in the c

of peace shall likewise be deemed to 

tute an act of aggression” (ibid., p. 19

106. The concept of a minimum world or

tem as defined by Professors McDou

Lasswell of the Yale Law School woul

clude the prohibition against the illeg

of international coercion by states as 

in Article 2(4) of the UN Charter, tem

by the strictly limited exception codi

Article 51. The optimum world order 

would include the higher legal and h

tarian values codified within Articles 

and 56 of the UN Charter. For a discu

interests significant to such a compreh

system of world order, see Myres McD

and Harold Lasswell, “The Identifica

Appraisal of Diverse Systems of Publ

der,” American Journal of Internationa

53 (1963), p. 595.

107. See Brunson MacChesney, “Some Com

on the Quarantine of Cuba,” American 

nal of International Law 57 (1963), p. 

108. It is believed that the Soviet Union ve

the 13 January 1980 draft resolution 

Security Council in retaliation for U.

sorship of an earlier General Assemb

lution condemning the Soviet invasio

Afghanistan. The General Assembly re

tion was passed under the “Uniting fo

rationale (GA Res. 377 V, UN Doc. A

[1950]) following a Soviet veto in the 

rity Council.

109. See below, this chapter.

110. “Allies Question Carter’s Measures,” 

April 1980, p. 15.

111. “State’s Ball on Iranian Crisis,” Time, 

1980, p. 29.

112. Ibid.

113. Dames & Moore v. Regan, 453 U.S. 65

(1981).

114. “Settlement May Be Unenforceable,” 

ington Star, 29 January 1981, p. A12.

115. See chapter 11, below.

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PART THREE

Major Conflict

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Operation DESERT STORM

U.S. air, ground, and naval forces assigned to the United Nations–sponsored coal

in DESERT SHIELD/DESERT STORM during 1990–91 endured legal scrutiny unlike 

of any other prior military campaign. Unlike other recent combat in which U.S. f

were involved (Vietnam, Grenada, and Panama), DESERT STORM was conducted 

the threat of chemical strikes and indiscriminate surface-to-surface missile attack

Nevertheless, coalition forces carefully adhered both to the law regarding means 

methods of warfare and to the protections to be accorded the victims of armed c

flict. In contrast, the Iraqi forces operated with no apparent sense of legal obligat

This chapter addresses Iraq’s August 1990 invasion of Kuwait and the response o

United States and its coalition partners, leading up to the decision to use force. It 

examines the conduct of hostilities by both sides during the conflict. The chapter 

cludes with some observations on the role of law in the postwar enforcement reg

Iraq prior to Operation IRAQI FREEDOM in 2003.1

Invasion of Kuwait

On 2 August 1990, an Iraqi force of over a hundred thousand troops and several 

dred tanks invaded Kuwait, with great precision. The Kuwaiti military, consisting 

only twenty thousand men and 250 tanks, was quickly routed. The emir and crow

prince (who also served as prime minister) fled to Saudi Arabia.

The invasion followed by less than one day the collapse of negotiations on financ

and territorial claims made by Iraq’s Saddam Hussein. Iraq’s rationale for war wa

tifaceted. In July 1990, Iraq was burdened with a huge debt, eighty-two billion do

largely as a result of its 1980–88 war with Iran. Twenty-five billion dollars of this

amount was owed to Kuwait’s emir, who claimed and administered the contested 

lands of Warba and Bubiyan, which controlled Iraqi access to the Persian Gulf. K

had sown further displeasure in Baghdad in early 1990 by producing more than i

OPEC allocation of crude oil, thus helping to drive down world prices. Finally, in 

CHAPTER SIX

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ing to the British demarcation of Arab borders in 1922, after the collapse of the Ottoman Empire.

The Conflict as Bounded by International Law

The law governing the actions of participant states in the Persian Gulf War can be

found in custom and convention. International conventions shaping the actions of the

parties on the battlefields of Kuwait and Iraq largely codify customary international

law, embracing restrictions on the means and methods of warfare and requirements fo

the treatment for the victims of the conflict. In addition to the UN Charter and Hague

Convention IV of 1907 addressing weapons and modalities of warfare, the 1949

Geneva Conventions, which provide protections for noncombatants and those hors de

combat, were also applicable to all parties.2

Because of the threat posed to the coalition of states that mobilized to oppose Iraq by

the possible Iraqi use of chemical and biological weapons, the prohibitions within the

1925 Geneva Protocol became important as well.3

The United States, its coalition partners (except Oman and the United Arab Emirates), and Iraq were parties to that agreement, which preceded the current Chemical Weapons Convention. The 1925 protocol

prohibited the use of chemical and bacteriological (biological) weapons in time of war

Both the United States and Iraq had filed reservations to this treaty, providing they

would not engage in “first use” of these weapons but would not be precluded from a

response “in kind” if they were attacked.4

The United States was also (and is today) a

party to the 1972 Convention on the Prohibition of Development, Production and

Stockpiling of Bacteriological and Toxin Weapons and on their Destruction;5

Iraq became a party on 18 April 1991, after the conclusion of hostilities.

Several important conventions addressing the law of armed conflict had no legal application to the first Gulf war. These include the 1977 Protocol I Additional to the Geneva

Conventions of 1949 (Protocol I);6

the 1977 Convention on the Prohibition of Military

or Any Other Hostile Use of Environmental Modification Techniques (ENMOD Convention);7

and the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons.8

Protocol I was intended to modernize the law of war by

updating and strengthening the 1949 Geneva Conventions but had objectionable provisions resulting in its rejection by the United States, Great Britain, France, Israel, and

Iraq. The ENMOD Convention, which outlaws environmental modifications of a hostile

nature, had been ratified by most coalition states, but not by Iraq. Because it requires one

party to enforce an action against another, it did not apply in DESERT STORM.

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struments in combat (such as certain uses of flame weapons, certain mines, and 

traps), had no direct applicability, because the belligerents were not parties to the 

vention. Nevertheless, all coalition activities were consistent with its language; Ir

tions, however, would have violated provisions addressing booby traps and land 

Response to Iraqi Aggression

The actions undertaken on behalf of Kuwait were pursued under Chapter VII of 

United Nations Charter.9

On the day of the Iraqi invasion, the Security Council c

demned the invasion and demanded that Iraq “withdraw immediately and uncon

tionally all its forces” (Resolution 660). On 6 August 1990, the Council ordered a

comprehensive trade and financial embargo (Resolution 661). On 9 August it vot

teen to none to declare null and void Iraq’s purported annexation of Kuwait of 8 

gust (Resolution 662). On 18 August the Council again voted fifteen to none to dem

that Iraq free all detained foreigners (Resolution 664). Resolution 665 reflected an 

tance of the U.S. position that force might be necessary to enforce the sanctions.

The Council was concerned with strict compliance with the embargo authorized 

Resolution 661. As it continued, some countries began to suggest they would allo

food shipments to Iraq; Resolution 661 allowed distribution to those most in nee

not to the Iraqi military. Another issue that arose was whether aircraft flying to I

were adhering to the economic sanctions. Resolution 670, adopted on 25 Septem

directed states to take steps to ensure that their aircraft and aircraft flying over th

territory were in compliance. On 30 October 1990, the Security Council tightene

pressure on Baghdad by approving Resolution 674, which laid the groundwork fo

ing Iraqi assets that had been frozen around the world. Resolution 674 declared I

sponsible for all damage and personal injuries resulting from its invasion and ille

occupation of Kuwait; it further requested states to collect relevant information r

ing their claims and those of their nationals and corporations “for restitution or 

cial compensation by Iraq.” Finally, when it was apparent that these lesser measu

were inadequate, the Council authorized (in Resolution 678 of 29 November) “a

essary means” after 15 January 1991 to enforce its edict that Iraq withdraw all for

from Kuwait.

The resulting use of force against Iraq pursuant to UN authorization and the rig

collective self-defense embraced the customary principles of necessity and propo

ality.10 As shown below, the forces of the U.S. Central Command and those of the 

tion partners carefully avoided both intentional destruction of civilian objects no

imperatively required by military necessity and direct attacks on civilians not tak

part in the hostilities. Coalition forces adhered to these principles through target

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and Iraqi defenses, notwithstanding Iraq’s violations of its law-of-war obligations toward the Kuwaiti civilian population and civilian objects.

The Iraqi Occupation of Kuwait

When Iraqi forces entered Kuwaiti territory on 2 August 1990, the provisions of the

Fourth Geneva Convention, or Civilians Convention (CC) were immediately applicable.11 By its actions, Iraq had become an “occupying power” in Kuwait, with specific ob

ligations to the Kuwaiti people and other third-country citizens in Kuwait and in Iraq.1

Although Iraqi officials were quick to claim that U.S. citizens in Iraq and Kuwait were

spies, Security Council Resolution 664 of 18 August 1990 made clear that the Iraqi gov

ernment was obliged to comply completely with the CC and carefully outlined its legal

obligations with regard to foreign civilians under Iraqi control. The resolution obligated Iraq to allow the departure of U.S. citizens and other third-country nationals

from Kuwait or Iraq unless national security dictated otherwise. Under Articles 5, 42,

and 78 of the CC, Iraq could intern foreign nationals in Iraq only if internal security

made it “absolutely necessary,” in Kuwait only if “imperative.” Iraq did not assert these

provisions in defense of its illegal hostage taking.

The conduct of the Iraqi government was the more onerous because of its placement

of American and other forced detainees in or around military targets as “human

shields,” in violation of Articles 28 and 38(4) of the CC. This act, coupled with the taking of hostages in violation of Article 34, unlawful deportations in violation of Article

49 of the same convention, and compelling hostages to serve in the Iraqi military, were

all grave breaches under CC Article 147 and thus punishable as war crimes should trial

and conviction result.13

As a result of intense international pressure, noncombatant hostages from the United

States and other third parties (except Kuwaitis) were released in December 1990, well

before the commencement of coalition combatant operations. Not only, however, did

Iraq not release Kuwaiti civilians, but it seized many more during the final phase of

DESERT STORM and used them to shield retreating Iraqi forces from coalition forces

liberating Kuwait.

Iraq treated civilians in the occupied state brutally. The government of Kuwait has estimated that 1,082 civilians were murdered during the occupation and that many more

were forcibly deported to Iraq. The 2 August invasion implicated not only the CC on

behalf of Kuwaiti citizens but also the 1907 Hague Convention IV Respecting the Laws

and Customs of War on Land, the 1948 Genocide Convention, and the 1954 Hague

Convention on the Protection of Cultural Property.14 Although Iraq is not a party to

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in 1946 that its rules are recognized by “all civilized nations . . . as being a declara

of the laws and customs of war.”15

From the outset, Iraqi forces and its government leaders denied Iraq’s status as an 

cupying power. That denial was belied, however, by Iraq’s claim of Kuwait as the 

teenth Iraqi province and its transfer of a part of the Iraqi civilian infrastructure 

for the purpose of annexation and resettlement, both of which constituted clear 

tions of Article 49 of the CC.16

Similarly, the confiscation of certain private and public Kuwaiti property was pro

ited by Articles 46, 53, 55, and 56 of the regulations annexed to Hague Conventio

Confiscation of immovable national public property (e.g., buildings) is authoriz

its use allowed, but it may not be damaged. Movable national public property ma

be seized without a military requirement for its use, and the property is subject t

compensation at the conclusion of hostilities. Iraq violated each of these requirem

The provisions of the 1954 Hague Convention (concerning cultural property) we

plied by all parties to the coalition. Although the United States is not party to the 

vention, it specifically applied its provisions in its targeting portfolios. Article 4(

provides specific protections for cultural property, to include shrines, temples, an

ognized structures of national and religious significance.17 Waiver of these protec

is permitted under Article 4(2) in the case of “imperative military necessity,” such 

when an enemy uses otherwise protected property to shield lawful military objec

An example during DESERT STORM was the placement of Iraqi combat aircraft co

ous to the ancient Temple of Ur.18 Despite such actions, U.S. and other coalition m

bers made every attempt to respect Iraqi cultural property.

The most disturbing abuse of civilians witnessed during the Gulf War concerned 

obvious attempt to destroy the identity of the Kuwaiti people, in violation of the 

cide Convention. The 1948 convention made it an international crime to commi

with the intent to destroy, in whole or in part, a national, ethnic, racial, or religio

group as such. These acts include killing members of the group, causing serious b

or mental harm to them, deliberately inflicting conditions of life calculated to br

about the group’s physical destruction in whole or in part, imposing measures in

tended to prevent births, or forcibly transferring children of the group to anothe

group. Evidence indicates Iraq committed acts violative of each of these categori

cept forcible transfer of Kuwaiti children to another group. Kuwaiti citizens were 

dered and tortured; others were forcibly removed to Iraq. Women of childbearin

were brutalized and rendered incapable of conceiving. Collective executions were 

monplace. Public records were collected and destroyed, and Kuwaiti identificatio

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property as belonging to the state of Iraq.

In the process of destroying the identity of Kuwait’s civilian population, Iraqi administrators denied Kuwaitis, those who had not succeeded in escaping to Saudi Arabia, the

necessities of survival (such as adequate food, water, and basic medical care), in violation

of Articles 55 and 56 of the Civilians Convention. Equally significant, medical supplies

and equipment in Kuwaiti hospitals necessary for the needs of the civilian population

were removed, in violation of Article 57 of the CC. This brutal disregard for law was

evident in the findings of U.S. Army war crimes investigators that many Kuwaiti infant

died as a result of the removal of infant-care equipment from Kuwaiti hospitals.19

Law of Armed Conflict Issues

Targeting considerations during the hostilities presented another area of stark contrast

As the air and ground portions of the campaign unfolded, it became clear that Iraq

lacked any significant capability to project force accurately outside of Iraq through its

missile batteries. Despite its lack of targeting capacity, Iraq proved very willing to direc

Scud ballistic missiles toward the cities of its enemies. Under the best of circumstances

Scuds are indiscriminate; however, Iraq deliberately employed these missiles as terror

weapons, declaring that it intended to rain random destruction on enemy civilian populations. Even less excusably, Iraq made a number of Scud attacks on Israel, a country

not a party to the conflict and not in the coalition. Iraq also possessed chemical and biological weapons capabilities, which it had previously used in both internal and external conflicts. Iraq had made clear that their use would not be constrained by any legal

limitations, although in the event, apparently for practical reasons, it did not use either

weapon during DESERT STORM. In short, Iraq complied with the law of armed conflict

only to the extent it was not able to violate it.

In contrast, coalition forces placed major emphasis on targeting only military and

military-related targets in Iraq and occupied Kuwait. It subjected targeting to legal

review at all levels, both the broadest war plan and each specific mission.

The law of targeting is based upon the customary international law principles of necessity and proportionality.20 Necessity requires that only objectives of military importance be attacked; it permits the use of overwhelming mass to destroy those objectives.

However, proportionality, the coaxial principle to necessity, requires that unnecessary

destruction be avoided. The law of targeting, therefore, requires that, consistent with

mission accomplishment, all reasonable precautions be taken to ensure that only military objectives are targeted and that civilians and civilian objects are protected to the

extent possible.

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principles of the law of armed conflict. These provide that the right of belligere

adopt means of injuring the enemy is not unlimited; that it is prohibited to lau

attacks against the civilian population as such; and that distinctions must be m

between combatants and noncombatants, to the effect that noncombatants are

spared insofar as possible.21

Coalition forces during DESERT STORM made every effort to comply with these r

quirements. They took a number of immediate steps to minimize the risk to non

batants when attacking lawful targets in populated areas. Aircraft and munitions 

selected, whenever possible, so as to achieve the greatest possible accuracy. Suppo

craft accompanied and protected attacking aircraft so their crews could concentr

their mission. Positive identification of targets was required before munitions we

leased; for this reason, 25 percent of all attack aircraft missions never dropped th

munitions. In the ground war, similar precautions were invoked. The maneuver p

was designed in part to avoid the heavily populated areas along the coast of Kuw

where civilian casualties and damage to civilian objects would have been high.22

Despite every reasonable effort to minimize collateral damage, there were 2,500–

civilian casualties as a result of the air campaign.23 This can be attributed to sever

causes: the integration by Iraq of its civilian and military infrastructure in Baghd

Iraq’s refusal to move critical targets outside of populated areas; and Iraq’s failure 

implement civil defense evacuation procedures that had been rehearsed in Baghd

prior to the inception of the air campaign. In any case, compared to the thirty th

sand lost in Rotterdam during one day of German bombing during World War I

Iraqi civilian losses, though significant, gain some perspective.

The U.S. and coalition effort to apply discrimination in all targeting associated w

ground and air missions over Iraq and occupied Kuwait must be juxtaposed agai

discriminate Iraqi practices. Not only did the Iraqis attack cities and other civilia

jects in Saudi Arabia and Israel with unguided ballistic missiles, but they attacked

petroleum facilities in Kuwait and fouled Gulf waters, with no military advantag

gained, reflecting a total repudiation of Hague and Geneva law.

Prisoners of War

In DESERT STORM, U.S. practice in dealing with enemy prisoners of war (EPWs) 

flected great improvement over Vietnam.24 During the Vietnam conflict, U.S. forc

perienced significant difficulty in providing for captured personnel as a result of 

of centralized management, inadequate training of prisoner-handling units, dela

tablishment of a prisoner of war information center, and loose accountability.25

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Third Geneva Convention for all EPWs and the Fourth Geneva Convention, the Civilians Convention, for all civilian internees. During the operation, 86,743 Iraqi prisoners

of war were captured, with a total of 69,820 EPWs and civilian internees marshaled

through U.S.-operated facilities between 19 January and 2 May 1991.26 During the preceding, preparatory operation, DESERT SHIELD, because of the Arab occupation of the

defense belt along the Kuwait-Saudi border, the Saudi government handled all detained

persons and Iraqi deserters.

Centralized management of EPW operations began during DESERT SHIELD. The National Prisoner of War Information Center was in place and operational well before the

ground offensive began. The Center used for collecting information and accounting fo

personnel a new automated program that satisfied all requirements of the Third and

Fourth Geneva Conventions.27

Consistent with the requirements for transfer in Articles 46–48 of the Third Geneva

Convention, U.S. policy required that a formal international agreement approved by

the Assistant Secretary of Defense for International Security Affairs and by the State

Department be concluded as a prerequisite for transferring any EPWs to a coalition

partner.28 Agreements were concluded with Saudi Arabia on 15 January 1991, with the

United Kingdom on 31 January 1991, and with France on 24 February.29 These agreements outlined the actions to be taken by capturing forces in processing the prisoners

and internees to the U.S. camps, through medical channels, and then to the Saudi government for final repatriation. Officials of the International Committee of the Red

Cross stated at the time that the coalition handling of Iraqi prisoners was the best they

had observed under the Third Geneva Convention.

Conversely, Iraqi treatment of the twenty-one captured coalition personnel failed to

comply with most articles of the Geneva Convention Relative to the Treatment of Prisoners of War. Coalition prisoners were not given “capture cards”; never registered with

the ICRC; used in propaganda videos; paraded before the Iraqi populace; beaten,

shocked, and generally mistreated; and denied writing privileges.30

Coalition prisoners were transported to Baghdad, where they were interrogated, then

incarcerated. Navy, Marine Corps, and Air Force personnel were confined in the Iraqi

Intelligence Service Regional Headquarters, a legitimate military target of the coalition

in violation of Article 23 of the Third Geneva Convention.31 American prisoners were

placed at great risk on 23 February 1991, when the facility was bombed by U.S. aircraft

Army prisoners of war were detained at the Ar Rashid Military Prison, where they remained until repatriation. The detention of prisoners of war in criminal confinement

facilities is expressly prohibited by Article 22 of the Third Convention unless justified

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the Iraqi government.

Damage to the Environment

Another significant issue was the carnage to the natural environment wrought by 

forces during Operation DESERT STORM. The damage was unprecedented among 

cent conflicts. Iraqi forces had wired with explosives, and ultimately detonated, m

than six hundred oil wells in occupied Kuwait. Additionally, Iraq dumped more t

seven million barrels of Kuwaiti crude oil into Gulf waters.33 The extensive and in

tional damage caused by the fires and oil spills represented precisely the kind of v

tive and wanton destruction that has long been prohibited by the laws of war. Th

basic principle is reflected in many specific rules, such as the prohibition on pilla

Even if a case could be made that these acts were accomplished for a military pur

the magnitude of destruction was clearly disproportionate under the circumstan

Equally significant, Iraq’s status as an occupying power placed it under a special 

tion with respect to property in Kuwait.36

The Iraqi case during DESERT STORM demonstrated two principles. First, the Hag

and Geneva Convention rules governing armed conflict, though designed to prot

vilian lives, health, and property, also protect the environment. Second, knowled

the environmental consequences of military action affects the application of thes

rules, broadening the restraint imposed upon combatants. In other words, the Ir

leadership was required to consider the effects of their actions on the environme

only because failure to do so would result in unlawful injury to civilians and non

tary objects.37

The Regulations Annexed to the 1907 Hague Convention IV have direct applicatio

Iraqi actions. Article 22 provides that “the right of belligerents to adopt means of i

ing the enemy is not unlimited.” Article 23g specifies that it is especially forbidden 

stroy or seize the enemy’s property, unless such seizure be imperatively demanded 

necessities of war.” Article 46 adds that “private property cannot be confiscated” by 

cupying force, and Article 47 states that “pillage is formally forbidden.”

To clarify further the restrictions upon occupying powers such as Iraq during

DESERT STORM, Article 55 states, “The occupying State shall not be regarded 

as administrator . . . of . . . real estate . . . belonging to the hostile State, and si

ated in the occupied country. It must safeguard the capital of these propertie

safeguard them in accordance with the rules of usufruct.” Had these stricture

observed by Iraq, there would have been no significant violation of Kuwait’s 

ronment or that of its Gulf neighbors.

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the 1907 Hague Conventions. Article 50 of Geneva Convention I (Wounded and Sick

in the Field), for example, provides that it shall be a grave breach for any state to

commit extensive destruction of property that is not justified by military necessity

and is carried out unlawfully or wantonly. Article 51 of Geneva Convention II

(Wounded, Sick, and Shipwrecked at Sea) merely restates this rule. The Fourth

Geneva Convention (Civilians Convention), while restating in Article 147 the genera

protections for the environment seen in the Hague Rules, also places significant responsibilities upon an occupying power. Article 53 provides that “any destruction by

the Occupying Power of real or personal property belonging individually, or collectively to private persons, or to the State, or to other public authorities, or to social or

cooperative organizations, is prohibited, except where such destruction is rendered

absolutely necessary by military operations.” It can certainly be argued that Kuwait’s

territorial seas, bays, beaches, and oil fields were subjected to wanton, unlawful destruction unjustified by military necessity.38

In comparison to those activities related to the environment directed by Saddam

Hussein, coalition forces planned their campaign to preserve, rather than destroy, human and material values to the extent possible. Targeting of Iraqi military installations

was conducted such that minimal collateral damage was inflicted. The most discriminate weapons available were used. Psychological operations advised of opportunities to

surrender without penalty, and those who surrendered were treated with dignity. In

short, the coalition forces were scrupulous in their adherence to law.

Availability of a Post–DESERT STORM Enforcement Regime

The importance of the Geneva Conventions of 1949 to Operation DESERT STORM extended beyond the provisions of the articles themselves. The enforcement regime represented in articles common to each of the four conventions required that grave

breaches by each of the contracting parties be identified and addressed.39 Moreover, another article common to each required penal sanctions.40 That article, the cornerstone

of the enforcement regime, obligates each contracting party to enact implementing leg

islation, search for persons alleged to have committed breaches of the conventions, and

bring such persons before its own courts or, if it prefers, hand them over for trial to an

other state party concerned. Article 146 of Geneva Convention IV provides further tha

the accused persons shall benefit from proper trial and defense no less favorable than

the safeguards provided in Article 105 (and those following) of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War. When those provisions addressing violations by individuals are considered in conjunction with the requirements of

Article 3 of Hague Convention IV (that violating states are liable to pay compensation

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actions in the First Gulf War, becomes apparent.41

The First Gulf Conflict in Perspective

The events leading up to the 1990–91 first Gulf war, the DESERT SHIELD and DES

STORM operations, and the follow-on PROVIDE COMFORT and SOUTHERN WATC

tiatives, will continue to be reviewed by historians and lawyers, because they repr

textbook examples of both disregard for and compliance with the rule of law. In 

cipitating the 1990 crisis, in invading and occupying Kuwait, and in engaging coa

forces, Saddam Hussein reached ever-greater heights of ingenuity in flouting the 

of law of civilized nations. Conversely, the coalition forces complied with both ju

bellum (the law of self-defense) and jus in bello (the law of the conduct of war).

Of importance, the United Nations Security Council has never worked harder th

did then to ensure that a victim of aggression was returned to the status quo ante 

that the aggressor was appropriately penalized for its actions. The UN-sponsored 

tion successfully expelled Iraq from Kuwaiti territory, but the compensation for d

age and depletion of resources was not forthcoming. Stonewalling by the Baathis

regime of Saddam Hussein was to be very costly for the government of Kuwait.

Resolution 692 created an effective regime for compensation drawn from Iraqi o

port revenues. This resolution also allocated a share of those revenues to providi

lief to the Iraqi people. Nevertheless, Saddam Hussein refused to avail himself of 

opportunity, denying not only compensation to Kuwait but all but minimal food 

medicine to his own people.

The actions of the Iraqi leadership under Saddam Hussein not only frustrated th

waitis’ right to reparations but emphasized that the people of Iraq, with no histo

democratic participation and no cohesive infrastructure capable of mobilizing ag

tyrannical leadership, would suffer not only from without but also, more egregio

from within. This had nothing to do with the law of armed conflict, but everythi

do with the failed political system in Baghdad.

The actions on the part of the Baathists during and after DESERT STORM emphas

that the failure to enforce acceptable behavior on the part of Iraq during and foll

armed conflict could not be attributed to an inadequacy of law but rather to an i

plete implementation of an enforcement regime by the member states of the Uni

Nations. In form, the enforcement mechanisms were more than satisfactory. In s

stance, the United Nations proved incapable of exerting sufficient pressure on th

government to enforce anything near full compliance.

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1. See chapter 8.

2. UN Charter, 26 June 1945, 59 Stat. 1031, TS

no. 993, 3 Bevans 1153; Hague Convention

no. IV Respecting the Laws and Customs of

War on Land, 18 October 1907, 36 Stat.

2227, TS no. 539. The Geneva Conventions

are reprinted, with background material, in

International Committee of the Red Cross,

Geneva Conventions of 12 August 1949, 2d ed.

(Geneva: 1950).

3. Protocol for the Prohibition of the Use of

Asphyxiating, Poisonous or Other Gases, and

of Bacterialogical [sic] Methods of Warfare,

17 June 1925, 26 UST 571; TIAS no. 8061; 94

LNTS 65 (entered into force for the United

States 10 April 1975).

4. Congressional Record, 120 no. 176; 26 UST

571; 14 ILM 49 (1975).

5. Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological and Toxin Weapons on Their

Destruction, 10 April 1972, 26 UST 583;

TIAS no. 8062.

6. Protocol I Additional to the Geneva Conventions Relating to the Protection of Victims of

International Armed Conflicts, with Annexes, UN Doc. A/32/144 (15 August 1977);

16 ILM 1391 (1977).

7. Convention on the Prohibition of Military

or Any Other Hostile Use of Environmental

Modification Techniques, 18 May 1977, 31

UST 333; 16 ILM 88.

8. Conventions on Prohibitions or Restrictions

on the Use of Certain Conventional Weapons

Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, UN

Docs. A/Conf.95/9/Add.1; A/Conf.95/DC/

CRP.1/Rev.1; A/Conf.95/DC/CRP.4.

9. Chapter VII of the UN Charter includes Articles 39–51 and provides that the Security

Council may authorize enforcement action

such as authorized in Resolution 678 of 29

November 1990.

10. As set forth in chapters 1 and 2, the concept

of “necessity” in the law of armed conflict

permits only that degree and kind of force,

not otherwise prohibited by the law, required

for the partial or complete submission of the

enemy with a minimum expenditure of time,

life, and physical resources.

11. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12

August 1949, 6 UST 3516; TIAS no. 3365; 75

UNTS 287.

12. Ibid. Arts. 47–48 describe the requirements

and responsibilities imposed upon a nation

occupying territory of an adversary.

13. Ibid. Art. 146 requires that all those alleged to

have committed grave breaches as defined in

Article 147 must be searched for and brought

before the courts of a party to the convention

which can make a prima facie case.

14. Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, UN Doc. A/810, p. 174; 78 UNTS

277. Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, reprinted in Dietrich

Schindler and Jirí Toman, The Laws of

Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents

(Leiden, Neth.: Sijthoff; and Geneva: Henry

Dunant Institute, 1973), p. 529.

15. International Military Tribunal (Nuremburg)

“Judgment and Sentence,” American Journal o

International Law 41 (1947), p. 172.

16. Article 49 provides, in part, “The Occupying

Power shall not deport or transfer parts of

its own civilian population into the territory

it occupies.”

17. During review of proposed target lists, command judge advocates and lawyers on the

staff of the chairman of the Joint Chiefs of

Staff in Washington ensured that Article 4(1

was carefully adhered to as a matter of policy, even though the United States was not a

party to the 1954 convention.

18. Although it was recognized by American

military officials that the Iraqi actions made

the Temple of Ur a legitimate target, U.S.

control of the air made it unnecessary to

eliminate those two aircraft.

19. The U.S. Army investigation was conducted

in 1991 by reservists coordinated by the International Affairs Division, Office of the

Judge Advocate General of the Army.

20. See chapter 1.

21. For a thorough review of these principles,

see U.S. Navy Dept., The Commander’s

Handbook on the Law of Naval Operations,

NWP-9 (Rev. A) (Washington, D.C.: 1989).

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the decision to adopt the maneuver plan in

DESERT STORM is included in appendix O to

the Title V Report (on the Conduct of the

Persian Gulf Conflict) of the Persian Gulf

Conflict Supplemental Authorization and

Personnel Benefits Act of 1991 [hereafter Title V Report].

23. See William Arkin, Needless Deaths in the Gulf

War: Civilian Casualties during the Air Campaign and Violations of the Laws of War (New

York: Human Rights Watch, 1991), p. 19.

24. See Title V Report, appendix L, for a thorough discussion of the Vietnam difficulties

in EPW management.

25. Ibid.

26. Ibid. U.S. EPW facilities were operational

until 2 May 1991, when the last EPW was

turned over to the Saudis for repatriation.

27. Ibid.

28. This process is further explained in appendix

L to the Title V Report.

29. Ibid.

30. See Title V Report, appendix L, pp. 29–33.

31. Article 23 states, in part: “No prisoner of war

may at any time be sent to, or detained in areas where he may be exposed to the fire of

the combat zone, nor may his presence be

used to render certain points of areas immune from military operations.”

32. Article 22 states in part, “Except in particular

cases which are justified by the interests of

the prisoners themselves, they shall not be

interned in penitentiaries.”

33. Title V Report, appendix L, p. 49.

22, 23(a), 23(e), and 28 of the 1907 H

(IV) Convention Respecting the Law

Customs of War on Land; Article 33 

1949 Geneva Convention (IV) Relati

Protection of Civilian Persons in Tim

War; and Articles 35(2), 48, 51, and 5

1977 Protocol I Additional to the Gen

Conventions.

35. Article 147 of the 1949 Geneva Civili

Convention describes as a “grave bre

the convention “willfully causing . . . 

sive destruction and appropriation o

erty, not justified by military necessit

carried out unlawfully and wantonly

36. See, e.g., the principles reflected in A

46, 47, and 55 of the regulations anne

the 1907 Hague (IV) Convention Res

the Laws and Customs of War on Lan

well as Article 56 of the 1949 Geneva 

vention (IV) Relative to the Protectio

vilian Persons in Time of War.

37. See James P. Terry, “The Environmen

the Laws of War: The Impact of DESE

STORM,” Naval War College Review 45

(Winter 1992), p. 61.

38. See ibid., pp. 61–67.

39. See Art. 51, Geneva Convention I (GC 

52, GC II; Art 131, GC III; and Art. 148

40. See Art. 49, GC I; Art. 50, GC II; Art. 

III; and Art. 146, GC IV.

41. UN Security Council Resolution 687

ing Iraqi compensation to Kuwait, ha

underpinning in Art. 3, Hague Conve

IV of 1907.

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Operation IRAQI FREEDOM

The determination by the Bush administration to enter Iraq and remove the regi

Saddam Hussein from power in early 2003 followed twelve years of Iraqi violatio

United Nations Security Council resolutions following Operation DESERT STORM

Prior to the decision by the United States and its coalition partners to intervene,

Saddam Hussein had done everything possible to avoid complying with the will 

international community. Of the twenty-six demands made by the Security Coun

since 1991, Iraq had complied with only three. Equally significant, the regime’s re

sion of the Iraqi people had continued.

The 2 October 2002 joint resolution of the Congress authorizing the use of all m

including force, to bring Iraq into compliance was merely one of a series of actio

the Congress to address the noncompliance by Baghdad of its international oblig

tions.1

In 1998, for example, the Congress passed a similar resolution.2It declared 

Iraq’s continuing “weapons of mass destruction” programs threatened vital Ame

interests and international peace and security; declared Iraq to be “in material br

of its international obligations”; and urged President Clinton “to take all approp

action, in accordance with the Constitution and relevant laws of the United State

bring Iraq into compliance with its international obligations.”3

These congressional and UN Security Council resolutions were not the only outc

change. In the Iraq Liberation Act, passed in 1998, U.S. lawmakers expressed the 

of Congress that it should be the policy of the United States to support efforts to 

move from power the current Iraqi regime and promote the emergence of a dem

government to replace that regime.4

The reasons for this strong congressional rea

to the Hussein regime rested not solely on Iraqi defiance of United Nations resol

but also on Saddam Hussein’s repression of the Iraqi people, his support for inte

tional terrorism, his refusal to account for Gulf War prisoners, his refusal to retu

len property to Kuwait following the 1990–91 conflict, and the Baathist regime’s 

to circumvent economic sanctions.

CHAPTER SEVEN

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This chapter examines these Iraqi violations in the context of contemporary international law standards justifying intervention. More significantly, it examines the right of

states to enforce mandates issued by the Security Council and to redress violations of its

edicts when the Council, as a body, subsequently refuses to do so; this is precisely what

occurred with respect to Iraq when the Baathist regime refused to comply fully with the

requirements of UN Security Council Resolution 1441.5

Finally, the chapter examines the

independent authorities available to states, such as the right to intervene to address a

threat to international peace and security under Article 51 of the Charter, and the right to

invoke the doctrine of humanitarian intervention, when the Security Council cannot or

will not act in circumstances in which its edicts have been clearly violated.

The U.S. intervention with its coalition partners in Iraq in March 2003 must be viewed

as a significant historical precedent in the relationship of a major power to the Security

Council. Previously, in 1998 in Kosovo, the United States and a coalition largely made

up of NATO partners intervened, as we have seen, to rescue and protect the threatened

Albanian population from Serb aggression without specific Security Council approval.

The military action in Kosovo could arguably be justified as a humanitarian intervention;6

in contrast, the coalition entry into Iraq in 2003 was justified on the basis of repeated violations of UN Security Council Resolutions under Chapter VII (authorizing

all necessary means) and the threat to international peace and security in the region

and to the world community posed by the Saddam Hussein regime as a result thereof.

As President Bush stated to the UN General Assembly on 12 September 2002,

Twelve years ago, Iraq invaded Kuwait without provocation. And the regime’s forces were poised to

continue their march to seize other countries and their resources. Had Saddam Hussein been appeased instead of stopped, he would have endangered the peace and stability of the world. Yet the aggression was stopped—by the might of coalition forces and the will of the United Nations.

To suspend hostilities, to spare himself, Iraq’s dictator accepted a series of commitments. The terms wer

clear, to him and to all. And he agreed to prove he is complying with every one of those obligations.

He has proven instead only his contempt for the United Nations, and for all his pledges. By breaking every

pledge—by his deceptions, and by his cruelties—Saddam Hussein has made the case against himself....

The conduct of the Iraqi regime is a threat to the authority of the United Nations, and a threat to

peace. Iraq has answered a decade of U.N. demands with a decade of defiance. All the world now face

a test, and the United Nations a difficult and defining moment. Are Security Council resolutions to be

honored and enforced, or cast aside without consequence? Will the United Nations serve the purpose

of its founding, or will it be irrelevant?7

Thus, the intervention in Iraq must be viewed through a different lens than either our

intervention in Afghanistan, where we responded to a direct attack on America, or our

intervention in Kosovo, where the coalition responded to a solely humanitarian crisis.8

In Iraq, the coalition led by the United States and the United Kingdom was responding

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redress for repeated violations of Security Council resolutions that, if not addres

rectly, would have done irreparable harm to the minimum world order system re

sented by Article 2(4) and Chapter VII of the Charter, to the peace and security o

region, and to the well-being of the Iraqi people, through continued repression.9

Analysis of Iraqi Violations of Security Council Mandates

Prior to intervention on 19 March 2003 and the inception of Operation IRAQI FR

DOM, the regime of Saddam Hussein had repeatedly violated sixteen UN Security

Council resolutions (UNSCRs) designed to place sharp controls on the regime’s 

ties and to ensure that Iraq did not pose a threat to international peace and secur

These violations spanned a period of more than twelve years and were first address

Security Council resolutions arising from the Iraqi invasion of Kuwait in August 19

In UNSCR 678, passed in the fall of 1990, UN member states were authorized “to u

necessary means” to redress the Iraqi invasion of Kuwait.11 Resolution 686 (1991) p

requirements on Iraq to return all prisoners, restore all property seized, and accept 

ity for all damages arising from its illegal invasion of Kuwait.12 The most significan

early resolutions addressing Iraqi violations, UNSCR 687 (cease-fire resolution of 3 

1991), required that Iraq “unconditionally accept” the destruction, removal, or neu

ization “under international supervision” of all “chemical and biological weapons 

stocks of agents and all related subsystems and components,” and further required 

Iraq declare fully its weapons of mass destruction programs, not “use, develop, con

or acquire” any weapons of mass destruction, and reaffirm its obligations under th

clear Non-Proliferation Treaty.13 This was followed by UNSCR 688 (1991), which “

demn[ed]” Iraq’s repression of its civilian population, “the consequences of which

threaten international peace and security,” and demanded that this repression cease

In UNSCR 707 (1991), the Security Council “condemn[ed]” Iraq’s “serious violatio

UNSCR 687 and further “condemn[ed]” Iraq’s noncompliance with the Internatio

Atomic Energy Agency (IAEA) and its obligations under the Nuclear Non-Prolifer

Treaty. This resolution required that Iraq halt nuclear activities of all kinds and ma

a full and complete disclosure of all aspects of its weapons of mass destruction and 

sile programs.15 When Iraq did not cooperate as required, the Council passed UNS

(1991), mandating that Iraq cooperate fully with UN and IAEA inspectors.16

In 1994, Saddam Hussein’s regime began military deployments once again design

threaten Kuwait. The Security Council passed UNSCR 949 (1994) condemning t

movements and directing Iraq not to utilize its military or other forces in a hosti

manner so as to threaten its neighbors or UN operations in Iraq.17

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rized weapons components. In response, in 1996 the Security Council passed UNSCRs

1051 and 1060. In UNSCR 1051, the Council demanded that Iraq report to the UN and

IAEA shipments of dual-use items related to weapons of mass destruction.18 It also

required that Iraq cooperate fully with UN and IAEA inspectors and allow them immediate, unconditional, and unrestricted access. UNSCR 1060, in turn, “deplored”

Iraq’s refusal to allow access to UN inspectors and its “clear violations” of previous

UN resolutions.19

In 1997, with access for inspectors still effectively denied, the Security Council passed

UNSCR 1115, which “condemn[ed] repeated refusal of Iraqi officials to allow access” to

UN officials. The Council claimed these actions to be a “clear and flagrant violation” of

UNSCRs 687, 707, 715, and 1060.20 In UNSCR 1134 (1997) the Security Council repeated

the demands contained in UNSCR 1115.21 When Iraqi actions threatened the safety of

UN personnel in late 1997, the Council “condemn[ed] the continued violations by Iraq”

of previous UN resolutions, including its “implicit threat” to the safety of aircraft operated by UN inspectors and its tampering with UN inspector monitoring equipment.22

The Iraqi lack of cooperation with the inspection regime continued in 1998, and in

March the Security Council passed UNSCR 1154, which stated that any violation

would have the “severest consequences for Iraq.”23 On 5 August 1998, the Baathist regime suspended all cooperation with UN and IAEA inspectors. This led to Security

Council condemnation in Resolution 1194 (1998) and the declaration that Iraqi actions constituted “a totally unacceptable contravention” of its obligations under

UNSCRs 687, 707, 715, and 1060.24 On 31 October 1998 the Iraqis made their August

suspension permanent and ceased cooperation with UN inspectors. The Council, in

UNSCR 1205, “condemn[ed]” this decision and described it as a “flagrant violation” of

UNSCR 687 and other resolutions.25

In 1999, frustrated with the continued lack of Iraqi cooperation, the Security Council

passed Resolution 1284, which created the United Nations Monitoring, Verification,

and Inspections Commission (UNMOVIC) to replace the previous weapons inspection

team, the United Nations Special Commission (UNSCOM), which had existed since

1991. In creating this new entity, the Council stated that Iraq must allow UNMOVIC

“immediate, unconditional and unrestricted access” to Iraqi officials and facilities.26

This concern with Iraqi weapons was reemphasized in UNSCR 1382 (2001), which reaffirmed the obligation of all states to prevent the sale or supply to Iraq of weapons or

any other military equipment.27

Finally, in UNSCR 1441 (2002), under Chapter VII of the Charter, the Security Counci

stated it was “determined to secure full compliance with its decisions.”28 The Council

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under relevant resolutions . . ., [d]ecide[d] . . . to afford Iraq ...a final opportun

comply with its disarmament obligations . . .,” and “decide[d] that false statemen

omissions in the declarations submitted . . . shall constitute a further material br

Iraq’s obligations and will be reported to the Council for assessment.”29

Equally disturbing, during the period represented by the preceding resolutions Sadda

Hussein had repeatedly circumvented UN economic sanctions, refused to allow weap

inspectors to oversee the destruction of his weapons of mass destruction, failed to de

his ballistic missiles of range greater than 150 kilometers, failed to stop support for te

ism or prevent terrorist organizations from operating within Iraq, declined to help ac

for missing Kuwaitis, refused to return stolen Kuwaiti property or bear financial resp

bility for damage from the first Gulf war, and continued his repression of the Iraqi pe

In addition to the legally binding resolutions, the Security Council had also issue

least thirty statements from its president regarding Saddam Hussein’s continued 

tions of these resolutions.31 On 7 March, following the thirty days provided in Re

tion 1441 for an Iraqi response to the unanimous adoption of UNSCR 1441 and 

compliance therewith, Secretary of State Colin Powell documented for the Coun

Iraq’s unresponsiveness.32 He summarized:

Iraq’s current behavior, like the behavior chronicled in Dr. Blix’s document*, reveals its strate

sion to continue to delay, to deceive, to try to throw us off the trail, to make it more difficult, t

that the will of the international community will be fractured, that we will go off in different d

tions, that we will get bored with the task, that we will remove the pressure, we will remove the 

And we know what has happened when that has been done in the past.

We know that the Iraqis are still not volunteering information and, when they do, what they a

ing is often partial and misleading. We know that when confronted with facts, the Iraqis are st

changing their story to explain those facts—but not enough to give us the truth.33

Confronting Security Council Inaction

When President Bush secured broad bipartisan support for the Joint Resolution 

thorize the Use of United States Armed Forces against Iraq on 2 October 2002, fe

could have imagined that the Security Council would not ultimately follow suit.3

all, U.S. leaders had obtained unanimous support in the Council for UNSCR 144

which all but constituted an ultimatum. Secretary Powell clearly defined the burd

Council membership in his 7 March 2003 address, in which he had carefully outl

the failure of Iraq to comply with UNSCR 1441:

Security Council membership carries heavy responsibilities. We must not walk away. We mus

find ourselves here this coming November with the pressure removed and with Iraq once agai

marching down the merry path to weapons of mass destruction, threatening the region, threat

the world.

* Dr. Hans Blix, the chief UN weapons inspector, had submitted a formal report on 27 Janua

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critical challenges we face will suffer. As we sit here, let us not forget the horror still going on in Iraq,

with a spare moment to remember the suffering Iraqi people whose treasure is being spent on these

kinds of programs and not for their own benefit; people who are being beaten, brutalized and robbed

by Saddam Hussein and his regime.

Colleagues, now is the time for the Council to send a clear message to Saddam that we have not been

taken in by his transparent tactics. Nobody wants war, but it is clear that the limited progress we have

seen, the slight substantive changes we have seen, come from the presence of a large military force—

nations who are willing to put their young men and women in harm’s way in order to rid the world o

these dangerous weapons.

It doesn’t come simply from resolutions. It doesn’t come simply from inspectors. It comes from the

will of this Council, the unified will of this Council and the willingness to use force, if it comes to that

to make sure that we achieve the disarmament of Iraq.

Now is the time for the Council to tell Saddam Hussein that the clock has not been stopped by his strata

gems and his machinations. We believe that the resolution that has been put forward for action by this

Council is appropriate and, in the very near future, we should bring it before this Council for a vote.35

The draft resolution Secretary Powell spoke of was opposed by Russia and France and

thus was never formally proposed for a vote within that body. The provisional draft of

7 March 2003, brought under Chapter VII of the Charter, stated that the Council was

determined to secure full compliance with its decisions and to restore international

peace and security in the area.36 It further stated

that Iraq will have failed to take the final opportunity afforded by resolution 1441 (2002) unless, on or

before 17 March 2003, the Council concludes that Iraq has demonstrated full, unconditional, immediate

and active cooperation in accordance with its disarmament obligations under resolution 1441 (2002)

and previous relevant resolutions, and is yielding possession to UNMOVIC and the IAEA of all weapons

weapon delivery and support systems and structures, prohibited by resolution 687 (1991) and all subsequent relevant resolutions, and all information regarding prior destruction of such items.37

When the Council did not agree to the proposed resolution, President Bush, with the

support of the United Kingdom, Spain, and more than forty other nations, directed

U.S. forces, in a coalition with the British, to enter Iraq on 19 March and remove the

regime of Saddam Hussein.38 This decision came only after President Bush determined

that reliance by the United States on further diplomatic or other peaceful means alone

would not lead to enforcement of all relevant United Nations Security Council Resolutions regarding Iraq, and further that the Security Council, despite the Iraqi lack of

compliance with UNSCR 1441, would not act.

Not surprisingly, on 22 May 2003, after the United States and Great Britain freed the

region from the threat posed by the Baathist regime in Iraq and the Iraqi people from

the repression of Saddam Hussein, the Security Council passed UNSCR 1483, by a vote

of fourteen to none.39 This resolution recognized the United States and the United

Kingdom as the “authority” in Iraq pending establishment of an independent democratic Iraqi government and affirmed “the need for accountability for crimes and

atrocities committed by the previous Iraqi regime.” Acting under Chapter VII of the

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tute a threat to international peace and security”), the Security Council “call[ed] 

the Authority, consistent with the Charter of the United Nations and other releva

ternational law, to promote the welfare of the Iraqi people through the effective a

istration of the territory, including in particular working towards the restoration 

conditions of security and stability and the creation of conditions in which the I

people can freely determine their own political future.”40

Analysis of the Lawfulness of the Use of Force in Iraq

It is important to consider whether the failure of the Council to act to enforce U

1441 and the preceding relevant resolutions with respect to Iraq authorizes any i

vidual state or coalition of member states to enforce them. In the case of the Uni

States, President Bush persuasively argued his case before the United Nations on 

February 2003;41 further, Congress had endorsed the use of force by the president 

2 October 2002 joint resolution.42 In that resolution, Congress had identified bot

threat to the United States and to international peace and security, and the need 

manitarian intervention:

Whereas Iraq both poses a continuing threat to the national security of the United States and i

tional peace and security in the Persian Gulf region and remains in material and unacceptable 

of its international obligations by, among other things, continuing to possess and develop a sig

chemical and biological weapons capability, actively seeking a nuclear weapons capability, and 

porting and harboring terrorist organizations;

Whereas Iraq persists in violating resolutions of the United Nations Security Council by conti

engage in brutal repression of its civilian population thereby threatening international peace a

rity in the region, by refusing to release, repatriate, or account for non-Iraqi citizens wrongfull

tained by Iraq, including an American serviceman, and by failing to return property wrongfull

by Iraq from Kuwait.43

While the main responsibility for maintaining peace and security in the UN syste

lodged with the fifteen-member Security Council, its effectiveness of the latter as 

strument of collective action has often been neutralized when the approval, requ

Article 27(3), of all permanent members is not forthcoming.44 This situation obt

in March 1999, when the Chinese and Russian delegates refused to support a dra

curity Council resolution authorizing NATO-led forces to intervene in the Kosov

sis, despite the support of twelve of the fifteen Council members, and in March 2

when the Russian and French delegates refused to support the coalition-led inter

tion in Iraq.

Precisely this possibility had led legal experts to debate long prior to the Kosovo 

Iraq crises criteria to address Council inaction in the face of obvious violations o

Charter principles. In 1974, Professor Lillich, lamenting the inability of the Secur

Council to function in matters requiring the unanimous approval of the perman

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portant task confronting international lawyers was to clarify the legitimacy of a state’s

use of force in support of Charter principles.45

In Iraq, as in Kosovo, the coalition’s use of military force was supportive of state practice

that has established the lawfulness of intervention as carefully circumscribed by the parameters outlined in Article 2(4). Articles 39 to 51 of the Charter establish a framework

for collective security based on the use of military forces and provide the Security Council authority for enforcement.46 Despite these powers, the reluctance of certain members

in 1998 and 2003 left the organization on the sidelines at a time when, according to the

Charter, its possibilities should have been used to the maximum. Evidence of partisanship and division among members, and especially among the Permanent Five, may in

part explain the sidetracking of the Security Council. Nevertheless, we should take such

matters with the utmost seriousness and ask ourselves what can be done to restore the

Council to the position of influence it was given in the Charter.

In fact, Chapter VII makes extensive provision for collective action “to maintain or restore international peace and security” when a threat to the peace or an act of aggression has occurred.47 Under Chapter VII it is the Council that must decide whether, in

any particular instance, a threat to the peace exists or aggression has been committed,

and if so, by whom, and finally what collective steps, if any, by the world organization

would best remedy the situation. With the exception of UN-sanctioned action in the

defense of Kuwait in 1990, however, it has never been possible to invoke these collective

enforcement provisions.48 Even in Korea, the potential veto of the Soviet ambassador

obliged the organization to turn to the General Assembly for the necessary authority

under Articles 11, 14, 18, and 24 of the Charter.49

The scarcity of actions brought under the collective action provisions of Chapter VII

does not in any way suggest the existence of a peaceful world. By 1970, Professor

Thomas Franck had already recorded more than one hundred outbreaks of hostility

between states in the some twenty-five years the UN had been in existence.50 The total

is now easily double that number. If the Chapter VII collective action provisions have

been markedly inconspicuous, increasing use has been made by states, including the

United States, of Articles 51, 52, and 53, which set out the rights of states themselves,

under certain exceptional circumstances, to resort to force outside the UN framework.

In fact, it is fair to say that the exceptions have overwhelmed the rule and transformed

the system. This was certainly the case in Iraq in 2003.

In Iraq, the Security Council had repeatedly condemned Iraqi actions that had violated

international peace and security.51 It is important to note that after the United States

and Great Britain successfully intervened in March 2003 to eliminate the threat to

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the violations of international human rights law described in UNSCR 1441 (2002

preceding statements, the Council quickly passed UNSCR 1483 unanimously rec

ing the coalition as the appropriate “authority” in Iraq pending establishment of 

ful government. The incongruity of the refusal of the Security Council to suppor

coalition intervention that directly supported the repeated demands it had made 

Iraq followed by unanimous approval of a resolution recognizing the interveners 

legitimate “authority” in Iraq is obvious.

An equally significant credibility gap exists between the noninterventionist polic

sulting from a divided Council and fulfillment of the humanitarian principles of 

UN Charter with respect to Iraq. Examining the UN Charter as a whole, it becom

parent that its two main purposes are the maintenance of peace and security and 

protection of human rights.52 Article 2(4), the Charter provision relevant to both 

purposes, prohibits “the threat or use of force against the territorial integrity or p

cal independence of any state, or in any other manner inconsistent with the Purpos

the United Nations” (emphasis supplied).

The intervention, as argued above, clearly reflected the humanitarian purposes st

in a myriad of United Nations resolutions. I would further argue that this interve

did not violate but actually supported the other requirements in Article 2(4), in t

did not significantly affect, other than in a positive way, the “territorial integrity” 

“political independence” of the state against which directed. The territorial integ

Iraq remains undisturbed. Under the Baathist regime of Saddam Hussein, there w

political independence, at least not for the people of Iraq. Nor did political indep

ence exist for the regime. Heavily sanctioned by the UN for repeated violations o

ternational law, the economy was increasingly restricted; the only international

intercourse available to the Baathist leaders lay with other rogue nations.

This argument is even more attractive legally when one studies the actual language 

Charter. While it is admittedly best known for the articles that create a minimum w

order system, as represented by Article 2(4) (prohibition on the use of force), Artic

(exception for self-defense), and Chapter VII (Articles 39–51, addressing Security C

cil responsibilities), there is certainly an equal emphasis on protection of human ri

The Preamble, in fact, focuses on the rights of individuals vice the rights of nations

The purpose of the Charter is to save succeeding generations from the scourge of war, which t

our lifetime have brought unto sorrow to mankind, and to reaffirm faith in fundamental hum

rights, in the dignity and worth of the human person, in the equal rights of men and women a

nations large and small, and to establish conditions under which justice and respect for the ob

arising from treaties and other sources of international law can be maintained, and to promot

progress and better standards of life in larger freedom.

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ganization is “to achieve international co-operation in solving international problems of an

economic, social, cultural, or humanitarian character, and in promoting and encouraging

respect for human rights and fundamental freedoms for all without distinction as to race,

sex, language or religion.” Article 55 emphasizes the need to promote “universal respect for,

and observance of, human rights and fundamental freedoms for all without distinction as

to race, sex, language, or religion.” The Economic and Social Council established in Article

61 provides the means by which the humanitarian objectives set forth in Article 55 are to be

addressed and reported to the Security Council for action.

A New Paradigm

The Iraqi intervention reflects an uneasy recognition that the Charter system is inadequate to address certain of the security and humanitarian crises that may come before

the United Nations, if unanimity among the five permanent members of the Security

Council continues to be a requirement. Only the United States and United Kingdom

among the Permanent Five on the Security Council were willing to support an enforcement resolution in the case of Iraq. Nevertheless, some forty nations found that authorization of the Security Council was not necessary, since the action was supportive of,

rather than contrary to, the values represented in Article 2(4).

The March 2003 intervention in Iraq thus requires we once again examine the law related to intervention in the case of violations of international peace, security, and human rights. We must attempt to reconcile the Charter’s values, on the one hand, and its

procedures, on the other. Iraq is especially appropriate for consideration since the

widespread violations of its international obligations were acknowledged in the Council unanimously in numerous resolutions. Additionally, the human rights violations attributed to the Baathist regime in Baghdad met all the requirements for humanitarian

intervention under pre-Charter law. Specifically, the horrendous crimes against Kurds

in the north and Shiites in the south were widely recognized and little disputed. The

intervention had as its purpose only to redress the threat and end the abuses. There wa

no intention other than to restore political independence to the Iraqi people and nation. Its territorial integrity remains intact.

Professor Louis Henkin suggests that the likely result, unless the unanimity requirement can be separated from Security Council decisions, will be establishment of precedent whereby states or collectives, confident that the Security Council will acquiesce in

their decision to intervene, shift the burden of the veto. That is, instead of seeking authorization in advance by resolution subject to veto, states or collectives will act and

then challenge the Council to terminate the action. A permanent member favoring the

intervention could frustrate the adoption of such a resolution.53

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fact Security Council ratifications in the Kosovo intervention (with UNSCR 1244

by extension in Iraq (with UNSCR 1483) effectively confirmed what might have 

tuted unilateral action questionable as a matter of law.54 The actions of the Secur

Council in adopting Resolution 1483 and endorsing the authority of the coalitio

ing the transition to an independent Iraq clearly reflected a step toward a change 

law. While it is unlikely there will be a formal change, the Council’s behavior sup

an interpretation of law such that intervention consistent with Charter values (i.

when neither the territorial integrity nor the political independence of the target 

are impacted in ways inconsistent with the values represented by Article 2[4]) wi

endorsed and not condemned.

International law requires that the community of nations first consider all means 

of force to address threats to international peace and security. Where diplomacy 

and egregious human rights violations are observed, the international communit

must not be allowed to excuse its failure to act by pre-Charter references to princ

of nonintervention and sovereign immunity or to the Charter requirement for S

Council approval when the lack of approval is contrary to the values for which th

Charter stands.

Notes

1. Public Law 107-243, Authorization for Use of

Military Force against Iraq Resolution, 2 October 2002.

2. Public Law 105-235.

3. Ibid.

4. Public Law 105-338, Iraq Liberation Act, 31

October 1998.

5. UN Security Council Resolution [UNSCR]

1441, 8 November 2002. Resolution 1441, in

paragraph 3, placed the burden on Iraq to

provide full disclosure, within thirty days, of

all its WMD programs, ballistic missiles and

other delivery systems, and the precise locations of all such components.

6. See James P. Terry, “Rethinking Humanitarian Intervention after Kosovo: Legal Reality

and Political Pragmatism,” Military Law Review (Summer 2004). See also chap. 5, above.

7. “Statement of President Bush before UN

General Assembly,” 12 September 2002,

available at www.whitehouse.gov.

8. See statement of Christopher Greenw

behalf of the United Kingdom: “Ther

right to humanitarian intervention w

government—or the factions in a civ

create a human tragedy of such magn

that it creates a threat to internationa

In such a case, if the Security Counci

not take military action, then other s

have a right to do so. It is from this st

practice that the right of humanitaria

vention on which NATO now relies h

emerged.” “Yes, But Is It Legal? Obser

March 1999, p. 2.

9. Article 2(4) prohibits the use of force 

states, while Chapter VII, and specifi

ticle 51 within Chapter VII, provides 

exception for states and states acting 

tively to respond to breaches of the p

when necessary in national self-defen

10. See UNSCR 678, 29 November 1990;

UNSCR 686, 2 March 1991; UNSCR 

April 1991; UNSCR 688, 5 April 1991

UNSCR 707, 15 August 1991; UNSCR 

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1994; UNSCR 1051, 27 March 1996; UNSCR

1060, 12 June 1996; UNSCR 1115, 21 June

1997; UNSCR 1134, 23 October 1997;

UNSCR 1137, 12 November 1997; UNSCR

1154, 2 March 1998; UNSCR 1194, 9 September 1998; UNSCR 1205, 5 November

1998; UNSCR 1284, 17 December 1999.

11. UNSCR 678, 29 November 1990, also required that Iraq comply fully with UNSCR

660, regarding Iraq’s illegal invasion of Kuwait “and all subsequent relevant

resolutions.”

12. UNSCR 686, 2 March 1991.

13. UNSCR 687 also required Iraq to not commit or support terrorism or allow terrorist

organizations to operate in Iraq, and it reiterated the requirements respecting the return of seized Kuwaiti property and persons

addressed in UNSCR 686.

14. UNSCR 688, 5 April 1991, further obligated

Iraq to allow immediate access to international humanitarian organizations to those

in need of assistance.

15. UNSCR 707, 15 August 1991, additionally

required that Iraq allow immediate, unconditional, and unrestricted access to UN and

IAEA inspectors and that it cease attempts to

conceal or move weapons of mass destruction, related materials, and facilities.

16. UNSCR 715, 11 October 1991.

17. UNSCR 949, 15 October 1994, also reiterated

that Iraq must cooperate fully with UN weapons inspectors and that it must not enhance

its military capability in southern Iraq.

18. UNSCR 1051, 27 March 1996.

19. UNSCR 1060, 12 June 1996. It reiterated

UNSCR 1051’s requirement to cooperate

and provide unrestricted access.

20. UNSCR 1115, 21 June 1997, further required

that Iraq give UN inspectors immediate, unconditional, and unrestricted access to Iraqi

officials for interviews.

21. UNSCR 1134, 23 October 1997.

22. UNSCR 1137, 12 November 1997. This resolution reaffirmed Iraq’s responsibility to ensure the safety of UN inspectors.

23. UNSCR 1154, 2 March 1998.

24. UNSCR 1194, 9 September 1998.

25. UNSCR 1205, 5 November 1998, also required,

once again, that Iraq provide “immediate,

with UN and IAEA inspectors.

26. UNSCR 1284, 17 December 1999, further

provided that Iraq must fulfill its commitment to return Gulf War prisoners and

called upon Iraq to distribute humanitarian

goods and medical supplies to its people and

address the needs of vulnerable Iraqis without discrimination.

27. UNSCR 1382, 29 November 2001.

28. UNSCR 1441, 8 November 2002.

29. Ibid.

30. UNSCR 1441 addressed each of these contin

uing violations.

31. See UN Security Council presidential statements of 28 June 1991; 5 February 1992; 19

February 1992; 28 February 1992; 6 March

1992; 11 March 1992; 12 March 1992; 10

April 1992; 17 June 1992; 6 July 1992; 2 September 1992; 23 November 1992; 24 Novem

ber 1992; 8 January 1993; 11 January 1993;

18 June 1993; 28 June 1993; 23 November

1993; 8 October 1994; 19 March 1996; 14

June 1996; 23 August 1996; 30 December

1996; 13 June 1997; 29 October 1997; 13 No

vember 1997; 3 December 1997; 22 December 1997; 14 January 1998; and 14 May 1998

32. Remarks of Secretary of State Colin L. Powell

before the UN Security Council, 7 March 2003

U.S. Department Of State Doc. 2003/256.

33. Ibid.

34. See chap. 7.

35. UN Charter, Art. 2, para. 4.

36. Draft resolution of 7 March 2003, S/2003/

215. The United States was joined in sponsorship by Spain and the United Kingdom.

37. Ibid.

38. The nations indicating support for the U.S.-

British intervention, in addition to Spain,

were Italy, Australia, the Czech Republic, Den

mark, Netherlands, Norway, Portugal, Romania, Poland, Ukraine, Hungary, Bulgaria,

Slovakia, the Dominican Republic, El Salvador, Honduras, Latvia, Lithuania, Finland, Ar

menia, Azerbaijan, Kazakhstan, Uzbekistan,

Moldova, the Philippines, Korea, Thailand,

Singapore, Mongolia, Fiji, Tonga, Argentina,

Nicaragua, and Nepal. The remaining nations

are not listed by their request.

39. UNSCR 1483, 22 May 2003.

40. Ibid.

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opment, Production, and Stockpiling of Bacteriological and Toxin Weapons on Their

Destruction, 10 April 1972, 26 UST 583;

TIAS no. 8062.

42. See chap. 7.

43. Ibid.

44. Article 23 of the Charter provides that the

Republic of China, Russia, France, Great

Britain, and the United States are permanent

members of the Security Council.

45. See Richard Lillich, “Humanitarian Intervention: A Reply to Dr. Brownlee and a Plan for

Constructive Alternatives,” in National Security Law, ed. John N. Moore (Durham, N.C.:

Carolina Academic, 1990), pp. 152–53.

46. Articles 39–51 constitute Chapter VII of the

UN Charter and provide the authority for

the Council to direct intervention to restore

international peace and security.

48. See UNSCR 678 (1990).

49. See UN General Assembly [UNGA]

377(V) (1950).

50. Thomas Frank, “Who Killed Article 2

Changing Norms Governing the Use 

Force of States,” American Journal of 

tional Law 64 (1970), pp. 810–11.

51. Chapter VII of the UN Charter include

cles 39–51 and provides that the Securi

Council may authorize enforcement ac

such as authorized in Resolution 678 o

vember 1990. See also UNSCR 1441 (2

52. See discussion in National Security La

Moore, pp. 148–49.

53. Louis Henkin, “Editorial Comments: 

Kosovo Intervention: Kosovo and the 

Humanitarian Intervention,” America

nal of International Law 93 (1999), p. 

54. Ibid.

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PART FOUR

U.S. Policy for Peace Operations

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The Development of Criteria

for Peace Operations

The new world order that replaced the Cold War political relationships in 1991 r

quired the United States and other nations to counter threats that did not challen

their national interests directly but were no less real. Nearly every contingency op

tion in which the United States participated in the 1990s and since has been cond

in support of a United Nations Security Council mandate under Chapter VII and 

been consistent with our obligations under Articles 25 and 103 of the UN Charte

1990s were truly the peacekeeping “era.”1

U.S. Policy Development for Peace Operations

Whether in Haiti, Somalia, the former Yugoslavia, or Rwanda, Presidents George 

Bush and William “Bill” Clinton drew their authority to commit U.S. forces from

Charter commitments represented in Security Council resolutions, which they th

selves could influence through votes and U.S. “muscle” in the Council.2

This was 

lutely critical to buttress their Article II authority as commanders in chief under 

Constitution, as none of the foregoing crises posed a threat to vital national inter

implicated any mutual defense accord ratified by the Senate.

The conventional criteria for commitment of forces is found in our national secu

strategy, which is reflected in the Defense Planning Guidance and the Contingen

Planning Guidance.3

This guidance is designed to address potential threats to U.S

tional interests, which would implicate Article 51 of the UN Charter and our inh

right of self-defense. The U.S. commitments to peacekeeping and peace-enforcem

operations in the 1990s, however, required an expansion of this conventional thi

as each of our commitments in Rwanda, Somalia, Haiti, and Bosnia was predicat

upon a UN request for assistance, with no corresponding threat to vital U.S. inte

or those of an ally.

CHAPTER EIGHT

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mining when to commit forces to preserve the peace in areas of instability or unrest,

restore the peace in areas of conflict, reduce the impact of regional strife, and curtail

human suffering. The publication in 1994 of Presidential Decision Directive (PDD) 25

“Reforming Multilateral Peace Operations,” reflected this new thinking.4

The strategy

in PDD 25 embraced the U.S. government’s soul-searching in the aftermath of our experience in Somalia, just as the earlier Weinberger Doctrine had arisen in the wake of

the Beirut bombing in October 1983.5

In fact, the criteria formulated by Secretary of

Defense Caspar Weinberger for U.S. military response to crises abroad was largely

adopted by President Clinton in PDD 25.

The criteria for military support under PDD 25 and for our vote in support of any

given peacekeeping or peace-enforcement operation in the Security Council required

that we first ask whether the situation represented a threat to international peace and

security. Second, did the operation as proposed by the secretary general have a defined

scope with clear objectives? Third, was there an international community of interest to

deal with the problem on a multilateral basis? Fourth, if a Chapter VI peacekeeping op

eration was contemplated, was there a working cease-fire in effect? Fifth, were financial

and human resources available? Finally, was there an identifiable end point to the proposed operation?6

When the commitment of U.S. forces to a UN contingency was to be considered under

PDD 25, interagency representatives would ask whether the peace operation advanced

U.S. interests; whether personnel, funds, and resources were available; whether American participation was necessary for the operation to be successful; whether an end

point for U.S. involvement could be identified; whether congressional and domestic

support existed; and whether command and control arrangements would be acceptable.7

Satisfactory response to each of these inquiries was viewed as critical.

Finally, when the use of force was contemplated in circumstances where significant

numbers of U.S. personnel had been committed, Presidential Decision Directive 25 required that it be asked whether we had the ability to commit sufficient forces to achieve

the defined military objectives, whether the leaders of the operation had a clear intention to achieve decisively the stated objectives, and whether there was sufficient commitment on the part of the UN or other sponsoring body continually to reassess and

adjust the objectives and composition of the force to meet changing security and operational requirements.8

These criteria, although articulated specifically for UN operations and other coalition efforts where direct challenges to vital national interests were

not present, offer prudent guidance for any U.S. commitment of forces.

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General Boutros Boutros-Ghali had attempted to take advantage of a Security 

cil no longer threatened with a Soviet or Chinese veto during debates on possib

peace-enforcement operations.9

In a January 1992 Security Council meeting atte

by President George H. W. Bush, the president of the Council asked the secretary 

eral to provide a report on ways to improve the UN peacekeeping process. In July 

the secretary general submitted his report, An Agenda for Peace.10 President Bush’

tember 1992 address to the UN responded to the positive steps of the secretary g

by announcing a series of American initiatives for improving the ability of the U

Nations to conduct peacekeeping and humanitarian operations effectively. Includ

were commitments concerning an improved intelligence capability and establish

of an operations center, as well as assurance that means would be found to provi

better price and availability data for ordering critical equipment, supplies, and se

necessary to sustain sizable operations.11

A Bush administration review of peacekeeping policies culminated in National S

Directive (NSD) 74. NSD 74 codified the main elements of President Bush’s Sept

1992 speech.12 The principal elements of the Bush peacekeeping effort outlined in 

74 were presented to our allies in a January 1993 meeting.

In February 1993, however, the new Clinton administration directed a “clean slat

bottom-up review of U.S. policies toward the United Nations and UN peacekeep

NSD 74 was set aside in order to make room for the new administration’s ideas f

proving, supporting, and participating in United Nations operations. It was from 

review that PDD 25 emerged.

Events Precipitating Policy Change

Presidential Decision Directive 25 resulted from the confluence of two parallel p

cesses. The first was the increased power and influence of a newly unified United 

tions Security Council and its resultant vigor in addressing breaches of internatio

peace and security—often without the required expertise or assets.13 The second 

reflected a Congress increasingly wary of U.S. participation in UN and other coa

activities without clear safeguards.

The rejuvenation of the Security Council posed for the United States some signif

concerns. The requirement to address international crises through UN mechanis

had brought many problems unforeseen by U.S. leaders at the end of the Cold W

The most trying of these was the lack of an effective operational capability within 

UN Department of Peacekeeping Operations, then headed by Kofi Annan.

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capabilities into effective military planning, that function had to be “contracted out.”

Further, with no cadre of experienced military advisors and planners available to the secretary general, the United Nations was at the mercy of its more affluent and experienced

members for military leadership. Further, the UN, having no intelligence-gathering capa

bility, either human or electronic, and no access to overhead satellite systems that could

provide real-time intelligence, was able to consider only the information that its suitably sophisticated member states were willing to share. Of similar concern was the

UN’s lack of an in-house logistics capability. The support of an operation at great distance from the contributing states could pose staggering costs; members were reluctant

to supply large operations like UNPROFOR in the former Yugoslavia or UNOSOM II

in Somalia even with UN reimbursement.

Finally, even if an operation were fully funded, complete with adequate logistics support, very few states had militaries or officer corps with recent experience in planning

and executing sophisticated operations. Moreover, effective artillery/infantry coordination in an era of highly mobile forces required the most modern communications, and

the use of tactical aviation necessitated an understanding of close air support and air/

ground coordination. It was such shortcomings, especially in Somalia, that ultimately

led Congress to place restrictions on U.S. participation in UN peace operations.15

Congress and Peace Operations

The loss of Pakistani lives in Somalia in June 1993 and then of eighteen Americans in

Mogadishu in October may have been the death knell of U.S. support for UN peace op

erations under Chapter VII of the UN Charter—unless led by American officers and

conducted with a preponderance of U.S. forces.16 In passing the Byrd Amendment to

the fiscal year (FY) 1994 Defense Appropriations Act, the Congress sent a strong message that the president’s authority to deploy forces without congressional approval in

circumstances where no vital national interest is implicated was not unlimited.17 Using

the “power of the purse,” the Congress was quick to limit defense funding where it determined U.S. interests were not well served. When the Byrd legislation lapsed on 30

September 1994, Congress quickly passed the Kempthorne Amendment, continuing

funding restrictions, to the FY 1995 Defense Authorization Act.18

The Congress likewise showed itself entirely willing to dictate to President Clinton

when it considered he was not doing enough in a peace-enforcement effort. In early

1994 Senator Robert Dole led an attempt to compel legislatively the unilateral lifting of

an arms embargo on the Bosnian Muslims and thus vitiate the UN resolution establish

ing the embargo. Senators Sam Nunn and George Mitchell, attempting to moderate

this effort through compromise, drafted what became known as the Nunn-Mitchell

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acted, did not lift the arms embargo unilaterally but precluded enforcement agai

Bosnian Muslims while continuing our obligations as they related to the other pa

to the conflict.19 Even this compromise measure undoubtedly contributed to an e

than-planned withdrawal from Bosnia by UNPROFOR.

Congress made in 1994 two other efforts, both of which failed passage, to interject 

into military affairs long thought the sole province of the president. In Senate bill S 

Peace Powers Act) and House of Representatives bill HR 7 (the National Security 

talization Act, or NSRA, part of the “Contract with America”), Congress attempt

restrict the president’s authority as commander in chief and limit U.S. involveme

future peace operations. The Peace Powers Act, an initiative of Senator Dole, wou

have prohibited U.S. forces from serving under foreign operational control even 

it might be in the American interest, as in DESERT STORM.

20 Similarly, Speaker Ne

Gingrich’s National Security Revitalization Act would have limited the use of De

Department funds for peacekeeping activities and restricted the sharing of intelli

with the UN. Either of these measures, if passed, would have severely impacted the 

dent’s constitutional prerogatives. Despite their failure, however, there remained bi

san concern in the Congress after UNOSOM II in Somalia that the president (whet

the incumbent or successors) would have to exercise greater stewardship with rega

peace operations managed by the UN.

Operational Lessons of Peace Operations in the 1990s

Just as the Congress and the United Nations in the mid-1990s became focal poin

debate concerning peacekeeping and peace enforcement, the operations themselv

provided many insights into American strengths and weaknesses in these tasks. W

Iraq massed its Republican Guards on Kuwait’s border in September 1994, for ex

our post–DESERT STORM defense strategy was immediately put to the test.

Operation VIGILANT WARRIOR, which followed, was an excellent test of the U.S. 

to deploy forces rapidly to Southwest Asia. We learned quickly that prepositioned s

had to be packed for efficient breakout—both ashore and afloat.21 We reconfirmed 

timely indications and warning of Iraqi movements and intentions were essential. 

also confirmed the need to build and maintain relationships and understandings a

regional states, such that “bedding-down” of aircraft and overflight rights were s

in advance.

Other issues also surfaced. United Nations leadership in UNOSOM II proved ina

quate to enforce the mandate of that operation, brought under Chapter VII of th

Charter.22 The mission—which was heavily tied to nation building—was simply t

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themselves to the process. The chairman of the Joint Chiefs of Staff, General Colin

Powell, and the Commander, U.S. Central Command, Marine general Joe Hoar, had

clearly recognized the need to circumscribe carefully the mission to that which was

achievable during the preceding UNITAF operation. They had limited that effort to

humanitarian relief. Unfortunately, the UN had not learned the same lesson.

Notes

1. Article 25, UN Charter provides: “The Members of the United Nations agree to accept and

carry out the decisions of the Security Council in accordance with the present Charter.”

Article 103 provides: “In the event of a conflict between the obligations of the Members

of the United Nations under the present

Charter and their obligations under any other

international agreement, their obligations under the present Charter shall prevail.”

2. As a permanent member of the UN Security

Council, the president, through his UN ambassador, has significant weight in shaping

decisions within that body. See UN Charter,

Art. 23(1).

3. Defense Planning Guidance (DPG) is published every five years by the secretary of defense (current version 2001–2006). It describes

the role of U.S. military power in support of

the president’s national military strategy. The

Contingency Planning Guidance (CPG), published yearly by the secretary of defense, ensures that contingency planning is consistent

with national strategy.

4. PDD 25 is classified. An unclassified white

paper prepared by the Department of State

carefully records these criteria: The Clinton

Administration’s Policy on Reforming Multilateral Peace Operations, DOS Pub. 10161

(Washington, D.C.: May 1994) [hereafter

PDD 25 White Paper].

5. See discussion of Weinberger Doctrine in

chapter 4.

6. PDD 25 White Paper, p. 2.

7. Ibid. Assurance that American personnel

were always under U.S. or NATO operational

control when engaged in Chapter VII (peace

enforcement) operations to redress breaches

of the peace became the critical concern of

the Congress after the UNOSOM II operation in Somalia.

8. Ibid. Many believe that the Beirut bombing

incident in 1983 and the attack on U.S. personnel in Mogadishu in October 1993 during UNOSOM II were watershed events in

shaping our policy with regard to commitment of forces to peace operations.

9. Prior to the dissolution of the Soviet Union

in 1991 and the 1989 Tiananmen Square mas

sacre in China, an ideological schism divided

the council’s five permanent members along

capitalist/communist lines. However, in the

five years following these events, Russia’s dependence on the United States for financial

assistance and China’s desire to protect its

newly gained most-favored-nation (now

“normalized trade relations,” or NTR) status

resulted in a pragmatic determination on th

part of these states to support Security Council peace operations. See discussion in James

P. Terry, “The Criteria for Intervention: An

Evaluation of U.S. Military Policy in UN Operations,” University of Texas Journal of International Law (Winter 1995), pp. 101–105.

10. An Agenda for Peace: Report of the Secretary

General, UN Doc. A/47/277-S/24111 (New

York: United Nations, 31 January 1992).

11. See James P. Terry, “The Evolving U.S. Policy

for Peace Operations,” Southern Illinois University Law Journal (Fall 1994), p. 119.

12. Ibid., p. 120.

13. Article 27 of the UN Charter requires a vote

of nine of the fifteen members, including all

five permanent members, to reach a decision

concerning a breach of the peace. Russia and

China are permanent members, along with

Great Britain, France, and the United States.

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treaty ratified by each of its members, creates clear, unavoidable obligations on UN

member states through Articles 25 and 103.

These articles obligate members to support

Security Council resolutions and abide by

their dictates.

15. See discussion in James P. Terry, “A Legal Review of U.S. Military Involvement in Peacekeeping and Peace Enforcement Operations,”

Naval Law Review (1995), p. 79.

16. The capture of Warrant Officer Durant and

the UN inability to control the situation in

Mogadishu may have been the final straw

leading the U.S. Senate to pass the Byrd

Amendment limiting funding.

17. The Byrd Amendment, section 8156 of the

fiscal year 1994 Defense Appropriations Act,

provided that funds appropriated for the Defense Department for “the Operations of

U.S. Armed Forces in Somalia” could be obligated only for expenses incurred through 31

March 1994.

18. The Kempthorne Amendment, although less

onerous than the Byrd Amendment, restricted funding for U.S. military personnel

in Somalia on a “continuous basis” after 30

September 1994.

19. The Nunn-Mitchell Amendment also provided specific direction, in paragraph

(f)(1)(B), for the president to submit a plan

to Congress on the manner in which the

Bosnian army would be trained by U.S. and

allied forces outside Bosnian territory. The

of UN Security Council Resolution (U

713, which called “upon all States to 

from any action which might contrib

increasing tension or impeding or de

peaceful and negotiated outcome to t

flict in Yugoslavia.” This training was 

by many as making the U.S. a party t

conflict, just as the USS New Jersey’s 

sions on behalf of the Lebanese arme

in 1983 had taken the United States o

line and into the conflict, thus legally 

morally) justifying the attack on the 

Barracks at Beirut International Airp

20. In Operation DESERT STORM, a brigade 

82d Infantry Division and a Marine C

tillery unit of the 12th Marine Regime

assigned to the command of French a

ish forces, respectively, to allow their a

at the same pace as other coalition for

21. Following the conclusion of DESERT ST

the Defense and State departments joi

gotiated Defense Cooperation Agreem

(DCAs) with many of our Gulf partne

These executive agreements permitted 

prepositioning of defense stocks on th

ritory in order that the United States c

sist these states should another crisis a

the region. This prepositioning was to 

invaluable during Operation IRAQI FR

22. Chapter VII comprises Articles 39–51 

UN Charter, relates to peace enforcem

vice peacekeeping, and authorizes “a

sary means.”

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The Role of Regional Organizations in

Peace-Enforcement Operations

The experience in Somalia in 1992–94 and in Bosnia during the same period ren

questions for the United States concerning the future role of the UN in enforcem

operations requiring a Chapter VII (“all necessary means”) mandate. The sheer n

ber of peace-enforcement requirements had obliged the United Nations itself to 

new venues of cooperation with groups of member states already organized for j

military action, such as NATO.1

This fact, coupled with congressional insistence t

American forces serve under responsible leadership and that strict standards be ad

to in determining whether U.S. forces should participate in any peace-enforcement 

ation, suggested that American participation in such operations would be restructu

the future.2

This restructured participation in international peacekeeping and peace enforcem

drove similar rethinking among our major allies and other regular contributors t

these operations. From the U.S. perspective, participation in these operations had 

comply with Presidential Decision Directive (PDD) 25.3

This directive, which req

clear accountability in deciding when to participate, when to assign forces, and u

what conditions, now precludes U.S. participation in Somalia-style operations w

UN leadership is not viewed by the United States as adequate.4

Chapter VIII of the UN Charter refers to regional organizations, such as NATO, i

context of appropriate regional action in the maintenance of international peace 

security.5

In this connection a relationship exists between the two organizations, 

ultimate authority centered in the United Nations. Excepting the area of internat

peace and security, however, the relationship is not hierarchical.

The Treaty of Washington, which established the NATO Charter in 1949, made n

erence to any relationship to the Security Council as a “regional arrangement,” n

it contain any requirement that actions of the organization be predicated upon a

rization of the Council, or for reporting activities “in contemplation.”6

Instead, t

CHAPTER NINE

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the UN Charter and, correspondingly, embodied only the requirement to report “measures taken” to the Security Council.7

This formulation was adopted by the United

States and its NATO allies because subjecting in advance NATO actions as regional arrangements to Security Council review would have made all of its actions vulnerable to

Soviet veto. The characterization of NATO’s military actions as “collective self-defense”

under Article 51 meant that there would be no “regional arrangement” action in the

sense of Chapter VIII of the UN Charter and no prior Security Council review. However, the internal disintegration of the Soviet Union in 1990–91 and the events in

Tiananmen Square in the People’s Republic of China have made Moscow and Beijing

more willing over the past fifteen years to support UN-requested involvement in peace

keeping and peace-enforcement operations.

The adaptation of NATO to a role as a regional organization under Chapter VIII of the

UN Charter with a peace-enforcement mandate must be viewed as part of a broad,

long-term American and allied strategy that supports a peaceful and democratic Europe. This strategy benefits U.S. security and builds on the bipartisan premise that the

security of Europe is a vital interest. Certainly, American sacrifices in two world wars

and the Cold War have proven our commitment to the region as a community of

shared values, and those sacrifices have more than established the nation’s interest in

recognizing and encouraging the rapid settlement of disputes in Europe.

When the Cold War ended, the United States and its NATO allies pursued a number

of initiatives to advance this strategy. These included negotiation and implementation of the 1990 Conventional Armed Forces in Europe Treaty (CFE), support for the

unification of Germany, bilateral assistance to support reforms in former Soviet

states, negotiation of the START II strategic arms control treaty, programs to dismantle nuclear stockpiles in Russia, the elimination of intermediate nuclear forces

(INF), including a 90 percent overall reduction in NATO’s nuclear weapons in Europe, and most importantly, active American diplomacy and the deployment of U.S.

troops as part of a NATO-led force in 1994–95 that helped stop the war and secure

the peace in Bosnia-Herzegovina.8

NATO plays an important role today in this broader strategy, for many of the same reasons that it has played an essential role in maintaining peace and security in Europe

during the past sixty years. NATO’s success during this period went far beyond its accomplishments as an effective military mechanism for collective defense and deterrence. It has proved invaluable as a political institution in fostering continuing

involvement of the United States and Canada in European security.

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Charter’s Chapter VIII began in 1990, soon after the fall of the Berlin Wall. In Jul

1990, under the active leadership of the George H. W. Bush administration, NAT

out in its London Summit Declaration new goals for the alliance, called for chan

strategy and military structure, and declared that the alliance no longer considered 

an adversary. These efforts were reaffirmed by a declaration in Copenhagen in June 

that NATO’s objective was “to help create a Europe whole and free.” At the Rome S

in November 1991 the alliance adopted a new strategic concept that reaffirmed th

continuing importance of collective defense while orienting NATO toward new s

rity challenges, such as out-of-area missions, crisis management, and peacekeepi

Since then, NATO has taken further steps to pursue a Chapter VIII role. At its Januar

summit in Brussels, the alliance made three important decisions related to its status a

gional organization. First, it launched the Partnership for Peace (PFP), to enable inte

political and military-to-military cooperation with Europe’s new democracies as wel

states that had considered themselves neutrals during the Cold War. PFP has proven 

portant and effective program for these states and for the alliance. A PFP Coordinati

fice was established in Mons, Belgium; major PFP exercises have been held each year 

1994; and numerous exercises have been conducted with partners “in the spirit” of P

program has more than proved its merit in Bosnia-Herzegovina, where thirteen PFP 

have made substantial contributions to the NATO-led peace enforcement in the Balk

Similarly, then–partner states such as Poland, Hungary, and the Czech Republic gene

contributed their resources to NATO’s Operation ALLIED FORCE in Kosovo in 1999 a

the follow-on UN peacekeeping operation.

The second major initiative related to adaptation to Chapter VIII undertaken by 

in Brussels in 1994 was a decision to embrace the concept of combined joint task

forces. This approach would enable NATO forces and national military assets to b

ployed in a more flexible manner for peace enforcement. The final initiative invo

the invitation of additional European states to join NATO (the first tranche inclu

Hungary, Poland, and the Czech Republic in 1999; seven more were added in 200

a total of twenty-six NATO members).9

While this NATO enlargement initiative w

not directly related to Chapter VIII, the training and increased military-to-milita

lations that have accompanied it will complement NATO’s increased capacity to 

form as a regional organization.

The benefits of a broadened NATO doctrine that emphasizes flexible response as 

gional organization are both immediate and long term, and they accrue not only 

isting and prospective NATO allies but to states outside the alliance. Europe is a m

secure and stable region because of NATO’s commitment to work within Chapte

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their foreign and defense policies to bring them in line with alliance values and norms.

The NATO acceptance of Chapter VIII responsibilities has been most significant in

Bosnia. NATO countries made a profound contribution to European security through

their participation in the NATO-led Implementation Force (IFOR) and are still doing

so ten years later under its successor Stabilization Force (SFOR), which is continuing to

implement the military aspects of the Dayton Peace Accords. It is clear from these

Bosnian missions that NATO members are already restructuring their forces so they

can participate in the full spectrum of current and new alliance demands, including

Article V (of the NATO charter) missions and peace-enforcement missions. The NATO

involvement in Kosovo in 1999, while not executed pursuant to a Security Council resolution, nevertheless reflected an important opportunity for the alliance to demonstrate, through a non–Article V mission, a cohesive out-of-area presence to preclude

genocide and restore peace to an important region.10

NATO acceptance of non–Article V missions has been necessary and was contemplated

by the alliance charter. With the end of the Cold War came a unique opportunity to improve the security structure to increase stability in the Euro-Atlantic area without creating divisions among NATO members. The NATO alignment, with its history of military

integration and cooperation brought about by years of successful planning and training

for mutual defense responsibilities, was in an ideal position to participate effectively in

peace-enforcement activities requiring the exercise of “all necessary means” under Chapter VII of the UN Charter.

As noted earlier, peace-enforcement operations, to be effective, require careful planning, experienced leadership, and highly integrated command and control arrangements. The Bosnia operation has demonstrated that NATO-led forces can meet these

requirements as well as comply with the principles of force commitment embodied in

PDD 25. The carefully developed response of leaders of the North Atlantic Alliance to

the military requirements of the Dayton Peace Accords have reflected the immense potential resident in NATO for peace enforcement. The UN has recognized the need for

regional leadership, and NATO has proven that it can successfully execute missions under United Nations authority.

Notes

1. The North Atlantic Treaty Organization,

comprising twenty-six member states, provides for collective defense in Article V of its

charter. Non–Article V missions authorized

for consideration include peacekeeping and

peace enforcement, now properly considered

under Chapter VIII of the UN Charter (Regional Organizations).

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NATO in UN Peace Enforcement Operations,” in The Law of Military Operations:

Liber Amicorum Professor Jack Grunawalt, International Law Studies vol. 72, ed. Michael

N. Schmitt (Newport, R.I.: Naval War College, 1998), p. 297.

3. See below in this chapter.

4. See James P. Terry, “U.N. Peacekeeping and

Military Reality,” Brown Journal of World Affairs 3 (1996), p. 136, for a review of UN inadequacies in peacekeeping and peace

enforcement.

5. Chapter VIII, in Articles 52–54 of the UN

Charter, specifically provides for “regional

arrangements or agencies” for dealing with

such matters relating to the maintenance of

international peace and security as are appropriate for regional action. Article 53 provides, in pertinent part: “The Security

Council shall, where appropriate, utilize

such regional arrangements or agencies for

enforcement action under its authority. But

no enforcement action shall be undertaken

under regional agencies without the authorization of the Security Council.” On the

maintenance of international peace and security, see An Agenda for Peace: Report of the

Secretary General, UN Doc. A/47/277-S/

ary 1992).

In paragraphs 60–65, Boutros Boutro

called upon regional organizations to 

more. In his Supplement to an Agenda 

Peace: Report of the Secretary General, 

Doc. A/50/60-5/1995/1 (New York: Un

Nations, 3 January 1995), the secretar

eral specifically endorsed the 1994–95 

led operation in Bosnia-Herzegovina.

6. Treaty of Washington (North Atlantic 

63 Stat. 2241, TIAS 1964 (entered int

24 August 1949).

7. Art. 5 of the Treaty of Washington pr

in pertinent part: “Any such armed a

and all measures taken as a result the

shall immediately be reported to the 

Council. Such measures shall be term

when the Security Council has taken 

measures necessary to restore and ma

international peace and security.”

8. The CFE agreement alone has resulte

elimination of more than fifty thousa

pieces of military equipment in Euro

9. The seven new members added in 20

cluded Bulgaria, Rumania, Latvia, Es

Lithuania, Slovenia, and Slovakia.

10. See chapter 4.

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PART FIVE

Challenges for the Twenty-first Century

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Defense of Critical Infrastructure

Computer Network Defense

In 1997, in an exercise emphasizing infrastructure security, the National Security

Agency exposed the vulnerability of the United States to disruption of computer 

ations at its major military commands at the hands of a hostile state or an organ

with hostile intent.1

A year earlier, U.S. authorities had detected the introduction 

software, called a “sniffer,” into computers at NASA’s Goddard Space Flight Cent

mitting the perpetrator to download a large volume of complex telemetry inform

transmitted from satellites. The deputy attorney general reported that the “sniffe

remained in place for a significant period of time.2

Of equal concern, an FBI report in 1999 detailed Chinese efforts to attack U.S. go

ment information systems, including that of the White House.3

These actual and 

jected interstate intrusions into government computer networks once thought se

raise important questions concerning what, if any, rights in self-defense are trigg

by such attacks, and more importantly, how would the right of self-defense, if an 

impacts a vital national security interest, be translated into effective rules of enga

ment, and more specifically, legally defensible targeting decisions.

Understanding the Threat

The world of information operations represents an environment created by the 

fluence of cooperative networks of computers, information systems, and teleco

nication infrastructures. The concern addressed here relates to the threat posed 

operations of these systems are unlawfully disrupted, denied, or degraded, or w

secure information that is stored in computers or computer networks is destro

compromised, or altered in such a way as to have a destructive effect on nation

curity interests. Computer espionage, computer network attacks, and the subve

of political, economic, or nonmilitary information bearing on a nation’s capab

and vulnerabilities may well constitute an unlawful use of force warranting a m

response under traditional international law principles.

CHAPTER TEN

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telecommunications “highway” constitute a threat or use of force? When does such a

threat constitute an attack under the international law such that the right of self-defense

exists? What is an appropriate response? To answer these questions, we must understand

the military applications of information technology. This requires an understanding of

the Internet. The Internet was originally, in the 1970s, a network of computers linked by

communications infrastructure and managed by the Department of Defense. The key

breakthrough by which the internal computer networks of universities and private research facilities were ultimately merged was the development in 1989 of hypertext,

which translates diverse computer protocols into standard format.

The hypertext approach, while extremely beneficial to both the military and civilian

sectors, has created vulnerabilities. The World Wide Web, which resides on the Internet

and of which hypertext is the primary vehicle, is the heart of the Defense Reform Initiative and of the reengineering and streamlining of Defense business practices. Yet it

can at the same time provide adversaries a potent instrument to obtain, correlate, evaluate, and adversely affect an unprecedented volume of critical aggregated information.

This chapter addresses these attacks on U.S. infrastructure. International law could not

have anticipated these specific concerns when the Hague Conventions of 1899, address

ing means and methods of warfare, were negotiated; nonetheless, the drafters of those

conventions did anticipate technological change. The “Martins Clause,” included

within both Hague II and Hague IV of the 1899 Conventions, provides that even in

cases not covered by specific agreements, civilians and combatants remain under the

protection and authority of principles of international law derived from established

custom, from principles of humanity, and from the dictates of public conscience; they

are not merely subject to the arbitrary judgment of military commanders.4

This provision was considered necessary to prevent unnecessary or disproportionate destruction

from future weapons systems. The drafters had just witnessed previously unimaginable carnage in the Crimean War and the American Civil War resulting from advanced rifle-manufacturing techniques and other innovations, and they were well

aware that warfare was rapidly changing. The Martins Clause that resulted means, as

Greenberg and colleagues so accurately state, that “attacks will be judged largely by

their effects, rather than by their methods.”5

The Legal and Operational Parameters for Response

Because time is often compressed in the techno-violence arena, legal recourse and

strategy development are often severely limited. This is especially true of nonmilitary

initiatives that may be considered in response to cyber-attack, although these are always the options of choice where available. Traditional means of conflict resolution,

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on computer systems are by nature covert in execution, unacknowledged by the s

group sponsor, and silently effective.

However, noncoercive efforts to counter attacks on computer systems and teleco

nications networks are also important. Diplomatic action, alone or in concert wi

lies or international organizations, that might conceivably influence a state or gro

considering such a cyber-initiative, should be considered and employed whereve

sible. In 1998, for example, the UN General Assembly passed Resolution 53/70, a

tiative of the Russian Federation;6

it called upon member states “to promote at

multilateral levels the consideration of existing and potential threats in the field 

formation security.”7

The United States supported this resolution, with the follow

pertinent comments:

The General Assembly’s adoption of the resolution in plenary session will launch the internati

community on a complex enterprise encompassing many interrelated factors which delegates 

not ordinarily address. For example, the topic includes technical aspects that relate to global co

nications—as well as nontechnical issues associated with economic cooperation and trade, int

property rights, law enforcement, antiterrorist cooperation, and other issues that are considere

Second and Sixth Committees. Further the actions and programs of governments are by no m

only appropriate focus, for the initiative also involves important concerns of individuals, assoc

enterprises, and other organizations that are active in the private sector.8

Despite such international initiatives focusing on multilateral cooperation, the h

outside assistance in protecting secure transmissions and critical systems in circu

stances where national security is threatened is likely illusory. That burden will m

likely remain exclusively that of the National Command Authorities.

The rules of necessity and proportionality in the information-warfare scenario are 

operational significance through rules of engagement. ROE are directives by which 

ernment may define the circumstances and limitations under which its forces will 

ate and continue responses to eliminate a threat, in this case that posed by an att

through technical or other means on critical communications/information infra

ture. In the U.S. context, ROE embody the guidance of National Command Auth

provided through the Joint Chiefs of Staff (JCS) to subordinate headquarters and 

ployed U.S. forces both during armed conflict and in crisis short of war.

ROE reflect domestic law requirements and national commitments under intern

law. They are impacted by political as well as operational considerations. For Am

commanders concerned with threats to communications and command and con

infrastructure, ROE represent limitations, or upper bounds, on how defensive or 

sponsive systems and forces may be used but do not diminish their authority to p

critical infrastructure effectively from attack.

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Techno-violence against a critical U.S. computer system, whether related to information, communications, or command and control, represents hostile activity and so may

trigger ROE. Until 1986, the only U.S. peacetime rules of engagement applicable world

wide were the JCS peacetime rules for seaborne forces. These ROE, which served as the

basis for local rules issued by all commands, were designed exclusively for the maritime

environment. In June 1986, Secretary of Defense Caspar Weinberger promulgated

more comprehensive ROE for peacetime land, sea, and air operations worldwide.9

These rules gave on-scene commanders flexibility to respond to hostile intent, hostile

acts, or unconventional threats, with minimum force necessary to limit the scope and

intensity of the threat. The rationale underlying the 1986 ROE was to terminate violence quickly, decisively, and on terms favorable to the United States. In October 1994,

Secretary of Defense Les Aspen approved “Standing Rules of Engagement for U.S.

Forces” (SROE), which significantly broadened the scope of national rules.10

The SROE provide that should deterrence fail, crisis response options are to be proportional to the provocation, limit the scope and intensity of conflict, discourage escalation, and achieve political and military objectives. The inherent right of self-defense

establishes the policy framework. The SROE are general guidelines on self-defense applicable worldwide to all echelons of command. They govern the use of force in ways

consistent with mission accomplishment and are to be used in operations other than

war, in the transition from peace to armed conflict or war, and, in the absence of super

ceding guidance, during armed conflict.

The national guidance represented in the 1994 SROE has greatly clarified and expanded the flexibility of action available to theater commanders. Issued with the authority of the secretary of defense, they ensure consistency in the way all military

commanders, wherever assigned, address unconventional threats—including the destruction or compromise of, or tampering with, advanced command and control systems or computer networks with adverse effects on the security interests of the nation.

Application of the Law of Targeting to Infrastructure Protection

The SROE, as they relate to information warfare, are implemented through the law of

targeting, a subset of the law of armed conflict. The law of targeting is based upon

three fundamental principles: the right of states to adopt means of injuring the enemy

is not unlimited; prohibition of attacks against civilian population as such; and the necessity of distinction between combatants and noncombatants, such that noncombatants are spared to the extent possible.11

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efficiency, these basic principles are also applicable to responses to such nonviole

nonetheless destructive coercive activity as sabotage of defense computer system

Moreover, targeting theory is premised upon practical considerations that define 

objects of legitimate and proportional response to various forms of aggression an

tablish functional targeting criteria for responsible officials, military or civilian.

The key, then, is to address attacks against critical infrastructure within the scope 

law of armed conflict. We must think of cyber-aggression as a variant of terrorist 

ity. This is precisely the direction in which recent U.S. administrations have proc

President Clinton’s Executive Order (EO) 13010 of 15 July 1996 established the Pre

dent’s Commission on Critical Infrastructure Protection (CCIP). The president de

that certain designated “national infrastructures are so vital that their incapacity 

struction ...would have a debilitating impact on the defense or economic securi

the United States.”12 The EO designated eight categories of critical infrastructure 

quiring a national strategy for their protection: continuity of government, teleco

nications, transportation, electric power, banking and finance, water supply, gas 

storage and transportation, and emergency services (medical, police, fire, and res

Initially chaired by Robert T. Marsh, a retired Air Force general, CCIP was tasked w

developing a comprehensive national strategy for protecting these critical infrastru

from electronic and physical threats. On 13 October 1997, CCIP issued an unclassi

version of its report, Critical Foundations: Protecting America’s Infrastructure. The r

recognized the challenge of adaptation to a changing culture; the existing legal fram

work, it found, was inadequate to deal with threats to critical infrastructure. The re

itself provided few specifics, but on 22 May 1998 the Clinton administration issued 

dential Decision Directives (PDDs) 62 and 63 to implement its policy framework.

PDD 62, “Combating Terrorism,” was the successor to National Security Decision D

tive 138, signed by President Reagan on 3 April 1984, which determined that the th

terrorism constitutes a form of aggression and justifies actions in self-defense.13 PD

was more expansive, addressing a broad range of unconventional threats that inc

attacks on critical infrastructure, terrorist acts, and weapons of mass destruction

aim was to establish a more pragmatic and systems-based approach to protection 

critical infrastructure and counterterrorism, in which preparedness was the key t

fective consequence management. PDD 62 created a National Coordinator for Se

Infrastructure Protection and Counterterrorism, who would coordinate program 

agement through the Office of the National Security Advisor.14

PDD 63, “Critical Infrastructure Protection,” directed the National Coordinator, 

lished in PDD 62, to initiate immediate action within the public and private sect

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to increase significantly the security of government systems and to establish a reliable,

interconnected, and secure information system. A National Plan Coordination Staff

was to integrate the plans developed by the various lead agencies into a comprehensive

National Infrastructure Assurance Plan, to be overseen by a National Infrastructure As

surance Council, embracing both the public and private sectors. The Federal Bureau of

Investigation’s National Infrastructure Protection Center, established in February 1998

would continue to act as a control and crisis-management point, gathering information

on threats to critical infrastructure and coordinating the federal government’s response.15

The New Approach to Infrastructure Protection

The issue remains, however, of what legal remedy can be applied under the law of

armed conflict should the Critical Infrastructure Plan fail, as it did on 11 September

2001. If a response is justified, as it was in Afghanistan after 9/11, what targets in a perpetrator country are proportional to the threat posed by destruction or compromise of

critical infrastructure? Again, experience in addressing terrorism must be reviewed.

The law of armed conflict provides more salient options against unconventional threat

than does domestic or intelligence law, in cases where national security is at risk.

For example, an unlawful entry into or compromise of a critical national security system by individuals can be viewed as criminal activity under the jurisdiction of law enforcement officials. The same intrusion by the same individuals could be viewed as

lawful espionage or intelligence gathering, as practiced by all states. If, however, that in

trusion and its debilitating effect can appropriately be characterized as an attack on vital U.S. national interests, the range of options in response is greatly increased.16 This is

important because the state or group attempting to compromise our national security

through the calculated sabotage of critical infrastructure is attacking the nation—not

with bombs or bullets but with the intent of destroying equally critical elements of national well-being and sovereignty. The loss of a power grid or telecommunications network through computer-generated viruses for an extended period of time could place

more Americans at risk than even a sizable military threat.

The United States was jolted into an awareness of the changing character of aggression

in general when its embassy in Tehran was seized on 4 November 1979 by Iranian militants who enjoyed the support of Ayatollah Khomeini’s revolutionary government.17 A

decade later, in August 1998, U.S. embassies in Nairobi and Dar es Salaam were the

subject of unconventional warfare attacks, resulting in significant loss of life in Nairobi

In the case of the 11 September attacks, a U.S. response was possible only because of

the linkage established between bin Laden’s organization and the assault on U.S. personnel and property.18 The thrust of the new U.S. strategy, outlined in PDD 62 and

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tive lost when the U.S. pursued a reactive policy toward unconventional threats a

tacks, as represented by inaction in response to the attacks on embassies in Beiru

Nairobi, and Dar es Salaam, and on the USS Cole (DDG 67).

An examination of authorized responses to techno-violence (and the selection of a

priate targets) requires an understanding that it, like other unconventional threats, 

not follow any of the traditional military patterns. In fact, a fundamental character

such attacks is violation of international law. The only norm for cyber-terrorism, a

other terrorist attacks, is effectiveness. While traditional international law requir

crimination and proportion, the success of cyber-terrorism is measured by the ex

and duration of destructiveness, with no concern for those affected.

For this reason, there must be an assured, effective reaction that imposes unacc

able costs on the perpetrators and those who make possible their activities. For 

mestic intruders, the criminal law may suffice. Outside the United States, the rea

must counter the cyber-terrorist’s strategy within the parameters of internationa

and PDD 62.

In this regard, no case for response in national self-defense can be persuasive either 

the political or legal level unless a reasonable basis of necessity is perceived and car

structured. Those to whom a justification is addressed (that is, other governments 

public) will consider whether it is well founded; they will not support the use of fo

a purely discretionary act. An important dimension of this question, then, is when 

use of force is necessary to produce adherence to the norm of information securi

Professor Lauterpacht has pointed out, every state judges “for itself, in the first in

stance, whether a case of necessity in self-defense has arisen,” but “it is obvious th

question of legality of action taken in self-preservation is suitable for determinat

and must ultimately be determined by a judicial authority or political body.”19 Th

United States has long taken the position that each nation is free to defend itself 

the “judge of what constitutes the right of self-defense and the necessity . . . of sa

The decision to respond with force against techno-violence must always focus on 

underlying political purpose of the state or group attacking an element of critica

infrastructure, whether that element be commercial, communications, intelligen

defense related. That purpose must unquestionably be the degradation of critica

tems such that we are unable to defend ourselves militarily or protect ourselves f

political or financial overreaching by adversaries.

Countering this threat requires taking full advantage of the proactive policies rep

sented in PDDs 62 and 63, and making the fullest use of all the weapons in our a

These should include not only defensive and protective measures that reduce sys

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collaboration with other governments. While military power should be used only as a

last resort, there will be instances where it is the only alternative. The thrust of this new

strategy must be to reclaim the initiative lost while the United States pursued a reactive

policy to incidents of information warfare that neither deterred cyber-terrorists nor

encouraged successful response. The key to an effective, coordinated policy for the protection of critical infrastructure is a commitment to hold those accountable responsible under the law of armed conflict.

Full implementation of the two PDDs should lead to increased planning for protective

and defensive measures and, where deterrence fails, for responses that eliminate the

threat, rather than treating each incident after the fact as a singular crisis provoked by

international criminals. Treating cyber-terrorists and others attempting to destroy critical infrastructure as participants in international coercion triggers, where clear linkage

can be made to a state actor, the right of self-defense, and coercion (political, economic, or military) may be the only proportional response.

This proactive strategy to the threat posed by attacks on our critical infrastructure embraces protective, defensive, nonmilitary, and military measures. It attempts for the

first time to define acts designed to destabilize our eight most important infrastructure

systems in terms of “aggression” and asserts the concomitant right of self-defense as a

basis for lawful and effective response. The use of international law, and more specifically the law of armed conflict, will not only complement the current criminal law approaches but give pause to those who would target vital U.S. interests.

Notes

1. See Bradley Graham, “U.S. Studies New

Threat: Cyber Attack,” Washington Post, 24

May 1998, p. A1. The author describes Operation ELIGIBLE RECEIVER, conducted by the

NSA and other government agencies.

2. Jamie Gorelick, speech before the Corps of

Cadets, U.S. Air Force Academy, Colorado

Springs, Colorado, 29 February 1996.

3. See William Gertz, “Chinese Hackers Raid

U.S. Computers,” Washington Times, 16 May

1999, p. C1, for a troubling review of Chinese efforts to attack White House, State Department, and other government computer

systems.

4. Hague II, Hague IV, Additional Protocol I.

5. Lawrence T. Greenberg, et al., Information

Warfare and International Law (Washington

D.C.: Institute for National Security Studies,

1997), p. 32.

6. GA Res. 53/70, UN GAOR, 53rd sess., UN

Doc. A/RES/53/70 (1998).

7. Ibid.

8. “United States Explanation of Vote after the

Vote,” re: GA Res. 53/70 (1998), in W. Gary

Sharp, Sr., Cyberspace and the Use of Force

(Falls Church, Va.: Aegis, 1999), p. 189.

9. Joint Chiefs of Staff, Peacetime Rules of Engagement for U.S. Forces (Washington, D.C.:

June 1986).

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Friday, October 28, 2005 2:19:33 PM
Forces,” Chairman of the Joint Chiefs of

Staff Instruction 3121.01, 1 October 1994, as

amended 22 December 1994.

11. U.S. Navy Dept., The Commander’s Handbook on the Law of Naval Operations, NWP

1-14M (Washington, D.C.: 1997), para. 8.1.

12. Executive Order 13010, Federal Register 61,

p. 37347.

13. Classified document described by Robert C.

McFarlane in “Terrorism and the Future of a

Free Society” speech at the National Strategic

Information Center, Defense Strategy Forum,

Washington, D.C., 25 March 1985. See discussion in James P. Terry, “An Appraisal of Lawful Military Response to State-Sponsored

Terrorism,” Naval War College Review 39, no.

3 (May–June 1986), p. 58.

14. “Combating Terrorism,” Presidential Decision Directive 62, 22 May 1998. Richard A.

Clarke, longtime senior National Security

Council staff member, was appointed the

first National Security Coordinator. In early

2004, during the 9/11 Commission hearings,

Clarke testified that his strong advice to the

Clinton and Bush administrations to take

been heeded sufficiently. In one emb

ing moment, former National Securi

sor Sandy Berger attempted to remov

the National Archives draft memoran

taining recommendations of Clarke t

not been acted on during the Clinton

administration.

15. “Critical Infrastructure Protection,” 

dential Decision Directive 63, 22 Ma

See Sharp, Cyberspace and the Use of 

pp. 201–204, for a comprehensive re

the major elements of PDD 63 and t

quirements that it imposed upon th

ous departments of government and 

private sector.

16. Sharp, Cyberspace and the Use of Forc

205–206.

17. See chapter 5.

18. Ibid.

19. Quoted in R. Oppenheim, Internation

8th ed. (London: Longmans, 1955), p

20. Ian Brownlee, “The Use of Force in 

Defense,” Brown Year Book of Intern

Law (1961), p. 207.

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Attacks on Foreign Infrastructure That Pose 

Threat to the United States

Computer Network Attack

The fiscal year (FY) 2000 version of the Defense Department’s Unified Comman

(UCP), signed on 29 September 1999, marked a new era in operational planning 

formation warfare, to include the targeting of an adversary’s computer networks 

necessary to protect vital U.S. or allied interests. The UCP provides planning gui

and requirements for operational commands.

Significantly, the FY 2000 version transferred responsibility for maintaining and 

aging the Joint Information Operations Center (JIOC), in San Antonio, Texas, to 

U.S. Space Command at Petersen Air Force Base, Colorado.1

JIOC, formerly know

the Joint Command and Control Warfare Center, provides “full spectrum” inform

warfare and information-operations support to commanders worldwide. In effec

JIOC supports the planning, coordination, and execution of all Defense Departm

information-warfare and information-operations missions, and assists in the dev

ment of related doctrine, tactics, and procedures.

Defining the Debate: The State of Information Warfare

What made the transfer of oversight of JIOC notable was the recent enhancement 

missions, in August 1999, from command and control to include operations suppo

functions now required of JIOC include psychological operations, security, electro

warfare, targeting of command and control facilities, military deception, computer 

work defense, computer network attack (CNA), civil affairs, and public affairs.2

The 2000 UCP was the first to address computer network attack specifically as a pl

requirement for unified commanders (that is, commanders of worldwide function

regional command comprising substantial forces from all services).3

This was signi

because, by implication, it recognized the legality of targeting critical foreign comp

infrastructure when U.S. or allied vital national interests are threatened.

CHAPTER ELEVEN

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target category arises from recent incidents where it has been threatened by government-sponsored intrusions or by individual hackers using sophisticated software.

These incidents have led to the recognition that electronic or physical elimination of

this threat may be necessary to protect our defense capability or ensure the continued

effective operation of other critical infrastructure.

Several incidents beyond those described in chapter 10 are significant. In February

1998, two California teenagers were able to breach computer systems at eleven Air

Force and Navy bases, causing a series of “denial of service” cyber-attacks and forcing

defense officials to reassess the security of their networks.4

The investigation of these

incidents, code-named SOLAR SUNRISE, pales in comparison with MOONLIGHT MAZE,

the investigation of an early 1999 electronic assault involving hackers based in Russia.

These intruders accessed sensitive Defense Department science and technology information.5

Computer tracing determined that MOONLIGHT MAZE attacks had originated

from the Russian Academy of Science, a government organization that interacts closely

with the military.6

This raises the possibility of a future asymmetrical attack sponsored

by a nation-state.

These incidents raise important issues for defense planning. How can these threats be

discovered and eliminated? What is the interplay between the role of investigating

agency and that of operational planner? It is clear that while the targeting of these

threats may require a military component, gathering indicators of an imminent threat

requires a far broader participation. It is for this reason that the United States established the National Infrastructure Protection Center (NIPC) in February 1998.7

NIPC serves as the government’s focal point for threat assessment, warning, investigation, and response to threats or attacks against critical infrastructures. These include

defense communication networks, telecommunications, energy grids, banking and finance organizations, water systems, government operations apparatus, and emergency

service organizations.8

NIPC contains an “indications and warning” arm and an operational arm. The Analysis and Warning Section provides analytical support during computer intrusion investigations and long-term analysis of vulnerability and threat trends.

The Computer Investigations and Operations Section is the operational arm of NIPC.

This section manages computer intrusion investigations conducted by FBI field offices

throughout the country; provides subject-matter experts, equipment, and technical

support to investigators in federal, state, and local government agencies involved in

critical infrastructure protection; and provides an emergency response capability to

help resolve cyber-incidents.9

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Only the operational assets assigned to the various unified commands within the 

partment of Defense possess that capability, and they may be employed only whe

strict parameters of the law of armed conflict are satisfied.

Legal Constraints on Attacks on Critical Infrastructure

The legal regime available to authorize responding attacks in lawful self-defense on 

cal enemy infrastructure includes the UN Charter system and customary internatio

law. The basic provision restricting the threat or use of force in international rela

is Article 2, paragraph 4, of the UN Charter, addressed extensively in previous ch

That provision states: “All Members shall refrain in their international relations f

the threat or use of force against the territorial integrity or political independenc

any state, or in any manner inconsistent with the Purposes of the United Nations

The underlying purpose of Article 2, paragraph 4, to regulate aggressive behavior 

tween states is identical to that of its precursor in the Covenant of the League of 

tions. Article 12 of the Covenant stated that the League members were obliged no

“resort to war.”11 This language, however, left unnoticed actions that, although ho

could not be considered acts of war. Thus it was that Article 2, paragraph 4 repla

term “war” with “threat or use of force,” to include applications of force of a less

tensity.12 This distinction may be all-important when, for example, a nation’s com

cial infrastructure is attacked and it contemplates actions in lawful self-defense t

include targeting critical infrastructure of the adversary, an element of which ma

been used in the initial attack.

When the UN Charter was drafted in 1945, the right of self-defense was the only 

exception, codified in Article 51, to the prohibition on the use of force. The use o

word “inherent” in the text of Article 51 suggests that self-defense is broader than 

immediate Charter parameters. During the drafting of the Kellogg-Briand Treaty

example, the United States expressed its view as follows:

There is nothing in the American draft of an anti-war treaty which restricts or impairs in any wa

right of self-defense. That right is inherent in every sovereign state and is implicit in every treaty. 

nation is free at all times and regardless of treaty provisions to defend its territory from attack or 

sion and it alone is competent to decide whether circumstances require recourse to war in self-de

Because self-defense is an inherent right, its contours have been shaped by custom 

are subject to customary interpretation. The drafters of Article 51 may not have a

pated its use in protecting states through defensive actions using technological m

but international law has long recognized the need for flexible application.14

When a vital U.S. national interest, such as one of the critical infrastructure syste

fined in Presidential Decision Directive 63, “Critical Infrastructure Protection,” i

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ating the threat may constitute a legally appropriate target for destruction or neutralization by military assets;15 destruction may then be both necessary and proportionate,

under the law of armed conflict, to eliminate the threat perceived.16 If, however, military objectives, including computer networks supporting military requirements, are

properly included within target sets, civilians and civilian objects are not.17 Civilian objects consist of all civilian property and activities other than those used to support or sus

tain the capability for armed aggression on the part of the attacker.18 Thus, activities

normally considered civilian in character would, when conducted in support of a nation’s aggression to shield an aggressor from identification, or to preclude effective and

lawful response to unlawful attack, become the lawful objects of attack. The point has

been made succinctly by the Defense Department general counsel in a May 1999 treatise on information operations:

If the international community were persuaded that a particular computer attack or a pattern of such

attacks should be considered to be an “armed attack,” or the equivalent to an “armed attack,” it would

seem to follow that the victim nation would be entitled to respond in self-defense either by computer

network attack or by traditional military means in order to disable the equipment and personnel that

were used to mount the offending attack.19

Stated another way, a civilian computer system used either to conduct against critical infrastructure an attack tantamount to an armed attack or to shield an aggression from dis

covery becomes a valid and lawful target if the total or partial destruction, capture, or

neutralization, in the circumstances at the time, offers a definite military advantage.20

From this examination, we see that computer networks are not per se illegal targets

under traditional international law criteria. We must apply the standard law-ofarmed-conflict analysis in every instance to determine whether critical computer infra

structure of an attacking state or other nonstate aggressor constitutes a valid target. In

that review, as in all reviews of target lists, we must determine whether the specific

computer network or other critical infrastructure system under consideration, by its

nature, location, capability, purpose or use, makes an effective contribution to the mili

tary capability of the offending state and whether its destruction, capture, or neutralization offers the United States or its allies a definite military advantage.

The fact that a computer system or other critical infrastructure is a valid target does

not mean in itself that it should be attacked, however. The political and strategic implications may suggest that although a response in kind would be legally justified, refraining from it may provide greater benefit—producing perhaps a shift in world sentiment

a movement of certain nations in terms of their allegiances, an opportunity for international bodies such as the UN to become engaged, and an opportunity to open previously closed political channels.

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ture under traditional international law principles relates to the issue of collatera

age. While collateral damage does not have a different definition in a CNA conte

additional steps may be necessary to show that reasonable precautions were taken 

avoid unnecessary destruction. This arises from the fact that the effects of conven

weapons and delivery systems are more predictable and the maxim that a weapon 

be targetable and not so indiscriminate that it unnecessarily endangers the civilian 

lation of the offending state. Lawrence G. Downs, Jr., explains a related and even m

important consideration for the state using digital data warfare in lawful self-defen

When the U.S. Army contracted a study to determine the feasibility of developing DDW [digit

warfare]–type viruses for military use, many people had misgivings that were summed up by G

Chapman, program director of Computer Professionals for Professional Responsibility. “Unle

this kind of thing is dangerous,” he said. “Should the virus escape, the United States heads the 

vulnerable countries. Our computers are by far the most networked.”21

From this it is clear that any weapon developed to provide CNA capability must 

both predictable and capable of being armed and disarmed if it is not to threaten 

duly innocent civilians in the target state or the user state. Downs is correct when 

suggests that weaponeers should, in general, develop a detection and immunizati

program in parallel for all viruses they intend to use. In this way, an attack gone w

cannot do inadvertent harm to the attacker. In short, users and developers of DD

need to be aware of risks and the absolute requirement for predictability when d

oping code.22

The Impact of International Agreements and Domestic Communications Law on 

Another consideration of military planners developing a cyber-defense capability 

be international agreements regulating the use of space through which data used 

CNA must travel. Those agreements include four principal multilateral conventio

which the United States is party: the 1967 Treaty on Principles Governing the Ac

of States in the Exploration and Use of Outer Space, including the Moon and Ot

Celestial Bodies (known as the Outer Space Treaty);23 the 1968 Agreement on the 

cue Astronauts, Return of Astronauts, and Return of Objects Launched in Space 

Rescue and Return Agreement);24 the 1972 Convention on International Liability 

Damages Caused by Space Objects (Liability Convention);25 and the 1975 Conven

on Registration of Objects Launched into Outer Space (Space Objects Registratio

Treaty).26 The four conventions collectively reiterate principles that are so widely 

cepted that they are viewed as reflective of customary international law, even betw

nonparties. These general principles include the premises that access to space is f

and open to all nations;27 that each user of space must show due regard for the ri

others;28 that states launching space objects are liable for any damage they may do 

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of international law.30

The Defense Department general counsel concluded in a 1999 assessment of international legal issues related to information operations, however, that the noninterference

principle recited in these and other conventions addressing the right to use space does

not apply during armed conflict:

There appears to be a strong argument that the principle of non-interference established by these

agreements is inconsistent with a state of hostilities, at least where the systems concerned are of such

high military value that there is a strong military imperative for the adversary to be free to interfere

with them, even to the extent of destroying the satellites in the system. As indicated in the discussion

of treaty law in the introduction to this paper, the outcome of this debate may depend on the circumstances in which it first arises in practice. Nevertheless, it seems most likely that these agreements will

be considered to be suspended between the belligerents for the duration of any armed conflict, at least

to the extent necessary for the conduct of the conflict.31

Underlying this statement by the Defense Department General Counsel is the obvious

principle that the right of self-defense is in no way abrogated by other international

commitments entered into by a nation.

One significant convention with apparent applicability to U.S. interdiction of foreign

communications infrastructure is the International Telecommunications Convention

(ITC) of 1982. In Article 35, the convention prohibits interference by member states

with the communications of other member states. The convention has an exception for

military transmissions in Article 38, however, which arguably would authorize information operations conducted by military forces.32 In fact, the Office of Legal Counsel

in the U.S. Department Justice ruled in July 1994, with respect to planned broadcasts

into Haiti concerning boat operations, that the ITC did not prohibit these broadcasts.33

An older convention that must be considered when discussing cyber operations is the

1907 Hague Convention on Neutrality on Land, which could impact satellite relay operations.34 This convention does not apply to systems that generate information, but it

does apply to relay facilities and requires that those of other states not be disrupted.

While Articles 8 and 9 contemplate only telegraph and telephone cable links, they

would arguably apply to satellite links as well. Since most computer-based systems, and

certainly all that control critical infrastructure, generate information as well as relay

that information, the prohibition against disruption would likely not apply.

Another potential concern is raised by international consortia that lease satellite nodes

for commercial communications. These organizations include INTELSAT, INMARSAT

ARABSAT, EUTELSAT, and EUMETSAT. The contracts signed by users (those of the re

spective providers are nearly identical) state that the system must be used exclusively

for peaceful purposes.35 The United States has leased one or more nodes from at least

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need to defend itself through digital data warfare.

Finally, domestic communications law must also be considered. The United State

Congress passed 47 USC 502 to implement the ITC requirement that member sta

enact legislation to prohibit interference with the communications of other mem

During Haiti operations in 1993, Office of Legal Counsel to the Department of J

issued, as it would in July 1994, a written opinion to the effect that Section 502 d

not apply to military actions of the United States executing the instructions of th

president.37 Thus, domestic law will not preclude the appropriate use of CNA by 

United States where it is engaged in an armed conflict or where necessity and pro

tionality dictate in circumstances short of war.

Analytical Review and Conclusions

From this examination, it is clear that the method of computer network attack 

authorized under the FY 2000 Unified Command Plan, whether it be digital data

netic, or electronic, does not change the legal analysis. Computer networks critic

the functioning of enemy infrastructure systems can be, under proper circumsta

valid military targets under traditional international law principles, and CNA do

violate applicable international conventions. This follows because military and d

use infrastructure are legitimate targets at all times during armed conflict as long a

meet the two-pronged test that they make an effective contribution to the adversar

military effort and that their destruction would offer a definite military advantage.

The analysis under the law of armed conflict that must be followed to determine

whether a military advantage is to be expected requires examination of the natur

cation, purpose, or use of the offending network and whether it is used to threate

or allied interests. Similarly, these same computer networks may constitute a lawfu

in self-defense prior to armed conflict if their neutralization or elimination is a nec

and proportional response to an attack the planning of which has been completed 

execution ordered. A corollary to this rule is that a particular target’s being valid 

military sense does not mean it must be attacked. A nation must always analyze a

tential target in light of the political, tactical, and strategic implications.

In the target analysis required for CNA, just as for more traditional target sets, reas

precautions must be taken to discriminate military targets from civilian networks. 

will be most difficult with regard to those dual-use systems—such as commercial t

phone exchanges, which can serve both civilian and military purposes. It is here th

political implications described above must be most carefully weighed. However, fr

our analysis, it is clear that networks serving commercial infrastructure, governme

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contribute to the enemy’s war-sustaining capability in such a way that their destruction

would constitute a definite military advantage. Conversely, attacks on computer network

serving infrastructure that is designed solely to support the civilian population, such as

civilian food distribution and civilian water supply, would be prohibited.

International communications law likewise contains no direct or specific prohibition

against the conduct of CNA or other information operations by military forces during

armed conflict or in response to aggression, a fact that underlines the superior position

enjoyed by self-defense in the hierarchy of a nation’s sovereign rights. Moreover, the

practice of nations as established in World War II provides persuasive evidence that telecommunications treaties are to be regarded as suspended among belligerents during international armed conflict. Similarly, domestic communications laws, and specifically 47

USC 502, do not prohibit properly authorized military information operations. It is

clear, then, that CNA, as authorized by the president in the FY 2000 Unified Command

Plan and implemented through the JIOC and the NIPC, can be employed in a manner

consistent with domestic law as well as with customary and conventional international

law principles.

Finally, when CNA is lawfully employed in response to asymmetric attacks on our criti

cal infrastructure, we must be aware that the international system will tend to ignore

the original aggression (the extent of which we are likely to mask, in order to shield ou

resulting vulnerability), while focusing on the more visible defensive response. If, however, we are to discourage the low-intensity portion of the aggressive attack spectrum,

including cyber-terrorism, a full range of computer network defense and deterrence

measures against cyber attack is essential.

The international legal system can effectively contribute to such deterrence if, but only

if, we make a clear distinction between the treatment of cyber-aggression, on the one

hand, and computer-generated defensive responses, which can and must include CNA,

on the other. That is, we must strengthen the international legal system to condemn

strongly all acts of aggression, whether a cyber-attack such as employed by the Russian

in MOONLIGHT MAZE or the violent acts of war seen in the targeting of the guidedmissile destroyer USS Cole in Aden Harbor and in the 1998 attacks on our embassies in

Nairobi and Dar es Salaam. Just as importantly, the system must be strengthened to support strongly and embrace legally defensive computer-generated digital-data-warfare responses to such aggression. Under such a strengthened system, CNA will provide an

important new arrow in our quiver of available responses to aggression under the law of

armed conflict.

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1. U.S. Space Command News Release 20–99,

October 1, 1999, p. 1.

2. Ibid.

3. Unclassified paragraph 22(a)(12) of the FY

2000 UCP provided that USSpaceCom’s responsibilities include: “In coordination with

the Joint Staff and appropriate CinCs, serving

as the military lead for computer network defense (CND) and, effective 1 October 2000,

computer network attack (CNA), to include

advocating the CND and CNA requirements

of all CinCs, conducting CND and CNA operations, planning and developing national

requirements for CND and CNA, and supporting other CinC for CND and CNA.”

4. See Defense Information and Electronics Report [DIER] (Washington, D.C.: U.S. Defense

Dept., 22 October 1999), p. 1.

5. DIER (Washington, D.C.: 8 October 1999),

p. 1.

6. Ibid.

7. NIPC is located in the Hoover Building in

Washington, D.C. NIPC brings together representatives from the FBI, Defense Department, other government agencies, State and

local governments, and the private sector.

8. PDD 63, “Critical Infrastructure Protection,”

establishes these categories as critical infrastructure, the protection of which constitutes defense of vital national interests.

9. NIPC works closely with USSpaceCom’s

JIOC and with the Critical Infrastructure

Coordination Group, which answers to the

National Coordinator for Infrastructure

Protection.

10. UN Charter Art. 2, para. 4. The Charter is

codified at 59 Stat. 1031; TS 993; 3 Bevans

1153. Signed at San Francisco 26 June 1945.

Reprinted in U.S. State Department Publication 2368, pp. 1–20.

11. See Covenant of the League of Nations, Art. 12.

12. Myres McDougal and Florentine Feliciano,

Law and Minimum World Public Order: The

Legal Regulation of International Coercion

(New Haven, Conn.: Yale Univ. Press, 1961),

pp. 142–43.

13. Marjorie Whiteman, Digest of International Law

(Washington, D.C.: U.S. Government Printing

Office, 1965), vol. 5, sec. 25, pp. 971–72.

14. See George Shultz, address before the 

Intensity Warfare Conference, Nation

fense University, Washington, D.C., 1

ary 1986.

15. See discussion in chapter 10.

16. The law of targeting is a subset of the 

Armed Conflict; the dual requiremen

necessity and proportionality, the tw

lars of that body of law, are equally a

ble to target selection and approval.

17. See Art. 51(1), Protocol I Additional 

1949 Geneva Conventions (1977), 16 

1391, in Dietrich Schindler and Jirí T

The Laws of Armed Conflicts: A Collec

Conventions, Resolutions and Other D

ments (Leiden, Neth.: Sijthoff; and G

Henry Dunant Institute, 1973). Art. 5

defines civilian objects as “all objects 

are not military objectives as defined 

paragraph 2.”

18. Ibid.

19. U.S. Defense Dept. General Counsel, 

sessment of International Legal Issue

formation Operations,” 19 May 1999

20. See Protocol I, Art. 52(2).

21. Lawrence G. Downs, Jr., Digital Data 

fare: Using Malicious Computer Code 

Weapon (Washington, D.C.: National 

fense Univ., Institute for Strategic Stu

1995), p. 58. Superscript and footnot

ted from the quotation.

22. Ibid.

23. 18 UST 2411, TIAS 5433, 480 UNTS 43 

24. 19 UST 7570, TIAS 6599, 672 UNTS 119 

25. 24 UST 2389, TIAS 7762 (1972).

26. 28 UST 695, TIAS 8480, 1023 UNTS 15 

27. Outer Space Treaty, Art. 1.

28. Outer Space Treaty, Art. IX.

29. The Liability Convention, in Articles 

III, and VI, elaborates the general pri

of international liability for damage 

in Article VII of the Outer Space Trea

ticles IV and V of the Liability Conve

address joint and several liability.

30. See U.S. Navy Dept., Annotated Suppl

to the Commander’s Handbook on the 

Naval Operations, NWP 1-14M (Was

ton, D.C.: 1995), p. 2-38.

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32. The requirements were stated previously in

the 1973 International Telecommunications

Convention, Malaga-Torremolinos, 28 UST

2495, TIAS 8572. The Malaga-Torremolinos

Convention was replaced by the 1982 International Telecommunications Convention,

Nairobi, 6 November 1982, 32 UST 3821;

TIAS 9920 (entered into force for the United

States 10 January 1986).

33. See discussion in General Counsel, “An Assessment,” pp. 36–37.

34. Convention (V) Respecting the Rights and

Duties of Neutral Powers and Persons in Case

of War on Land, signed at the Hague, 18 October 1907, 36 U.S. Statutes at Large 2310–31;

1 BEVANS 654–68; American Journal of International Law 2 (1908), supp., pp. 117–27.

35. Where this provision is violated, however,

and a satellite node is used for aggression,

would arguably cease.

36. 47 USC 502 provides: “Any person who willfully and knowingly violates any rule, regula

tion, restriction, or condition made or

imposed by the Commission under authority of this Act [47 USC 151, et seq.], or any

rule, regulation, restriction, or condition

made or imposed by any international radio

or wire communications treaty or convention, or regulations annexed thereto, to

which the United States is or may hereafter

become a party, shall, in addition to any

other penalties provided by law, be punished, upon conviction thereof, by a fine of

not more than $500 for each and every day

during which such offense occurs.”

37. See discussion in Defense Department General Counsel, “An Assessment,” p. 38.

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Observations and Conclusions

This review of post–World War II conflict resolution has examined the difference

tween the interpretive approaches taken by states in their respective claims and c

terclaims during international crises. The great importance of examining the fac

rationale of post–World War II coercion resides in the significance that nations p

the role of law as a necessary element in gaining political support, both national 

international, for their policies. As is evident, nation-states, including the United 

have adopted and espoused customary and conventional international principles 

served their desired policy aims. The international legal mechanisms developed t

morialize and preserve these policy goals have been developed historically throug

multilateral efforts to establish binding international regimes, such as the Hague 

Geneva Conventions, the initiatives leading to the League of Nations after World 

and the United Nations Charter.

The fulcrum of this effort has been the contributions to coercion control and colle

security of the Charter of the United Nations. Through the establishment of an eff

Security Council, collective security could, for the first time, be meaningfully subst

for unilateral action. As part of this process, the establishment of an Internationa

Court of Justice, to which disputes between states could be referred, is equally sig

cant. Despite the inadequacies in Charter operation reflected in the case studies i

preceding chapters, the advance in conflict management represented in the Unite

tions system is significant.

Critical to this study has been the explication of the right of self-defense. The right 

self-defense was codified in Article 51 of the Charter. Although the drafters of that 

may not have anticipated its use in protecting states from the effects of such terror

lence as the United States experienced in September 2001, international law has alw

recognized the need for flexible application. Important in this flexibility is the reco

tion of the right to counter the imminent threat of unlawful coercion as well as act

tack. This comprehensive conception of permissible or defensive coercion, honorin

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international law. It is precisely this anticipatory element of lawful self-defense that has

proven critical to an effective policy to counter terrorist violence under the UN Charter.

Customary international law has long recognized that no requirement exists for states

to “absorb the first hit.” The doctrine of anticipatory or preemptive self-defense, as developed historically, is applicable only where there is a clear and imminent danger of

attack. The means used for preemptive response must be strictly limited to that required for the elimination of the danger, and they must be reasonably proportional to

that objective. The authorities now available to American leaders, at a time when terrorist violence has already proven more deadly than major conflict, were developed in

the course of the historical incidents addressed. As we have seen, the threat today has

been recharacterized in terms of deliberate aggression against the United States by

nontraditional actors willing to take suicidal risks to inflict premeditated, brutal savagery on innocent civilians in a manner designed less to force regime change directly a

to induce policy changes.

The commitment to national security, then, must address threats represented by social

and religious systems that foster or at least condone aggressive responses to differing

religious and social values. This has never been more true than in Afghanistan and in

Iraq, following Operation IRAQI FREEDOM. Security means more than simply protecting the land on which we live. It embraces a comprehensive understanding of the appropriate response to human aspirations for improved conditions of life, for equality

of opportunity, and for justice and freedom. Where these interests are thwarted for

peoples or groups by armed protagonists representing narrow, restrictive interests, our

response must be one measured by the effective institutionalization of order.

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About the Author

James P. Terry is chairman of the Board of Veterans’ Appeals, in the Departmen

Veterans Affairs. Until early 2005 he served as the Principal Deputy Assistant Sec

of State in the Bureau of Legislative Affairs, having previously been Deputy Assis

Secretary of State for Regional, Global, and Functional Affairs in that bureau. He

served as legal counsel to the Chairman, Joint Chiefs of Staff, from 1992 to 1995. 

dition to earning undergraduate and graduate degrees from the University of Vir

he received a JD degree from Mercer University and LLM and SJD degrees from 

Washington University. He is also a 1986 graduate (with distinction) of the Nava

College. A retired Marine colonel, he was head of the Research and Policy Branch 

the Judge Advocate Division of the Marine Corps, and served as the Staff Judge A

cate to III Marine Expeditionary Force during the first Gulf war, chief trial counsel 

Naval Legal Services at Subic Bay in the Philippines, and as a military judge at Qua

His career includes service in Vietnam as an infantry officer and aboard ship as a 

tachment commander, as well as more than twenty years as a judge advocate. He 

widely published in the areas of national security law and coercion control. The v

expressed in this monograph are those of the author alone.

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The Newport Papers

Naval Power in the Twenty-first Century: A Naval War College Review Reader, edi

Peter Dombrowski (no. 24, July 2005).

The Atlantic Crises: Britain, Europe, and Parting from the United States, by William

Hopkinson (no. 23, May 2005).

China’s Nuclear Force Modernization, edited by Lyle J. Goldstein with Andrew S.

Erickson (no. 22, April 2005).

Latin American Security Challenges: A Collaborative Inquiry from North and Sou

edited by Paul D. Taylor (no. 21, 2004).

Global War Game: Second Series, 1984–1988, by Robert Gile (no. 20, 2004).

The Evolution of the U.S. Navy’s Maritime Strategy, 1977–1986, by John Hattend

(no. 19, 2004).

Military Transformation and the Defense Industry after Next: The Defense Indust

Implications of Network-Centric Warfare, by Peter J. Dombrowski, Eugene Ghol

Andrew L. Ross (no. 18, 2003).

The Limits of Transformation: Officer Attitudes toward the Revolution in Military A

by Thomas G. Mahnken and James R. FitzSimonds (no. 17, 2003).

The Third Battle: Innovation in the U.S. Navy’s Silent Cold War Struggle with Sovi

marines, by Owen R. Cote, Jr. (no. 16, 2003).

International Law and Naval War: The Effect of Marine Safety and Pollution Con

tions during International Armed Conflict, by Dr. Sonja Ann Jozef Boelaert-Suo

(no. 15, December 2000).

Theater Ballistic Missile Defense from the Sea: Issues for the Maritime Component C

mander, by Commander Charles C. Swicker, U.S. Navy (no. 14, August 1998).

Sailing New Seas, by Admiral J. Paul Reason, U.S. Navy, with David G. Freymann (n

March 1998).

What Color Helmet? Reforming Security Council Peacekeeping Mandates, by Myro

Nordquist (no. 12, August 1997).

The International Legal Ramifications of United States Counter-Proliferation Strate

Problems and Prospects, by Frank Gibson Goldman (no. 11, April 1997).

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U.S. Air Force (no. 10, October 1996).

A Doctrine Reader: The Navies of the United States, Great Britain, France, Italy, and

Spain, by James J. Tritten and Vice Admiral Luigi Donolo, Italian Navy (Retired) (no. 9

December 1995).

Physics and Metaphysics of Deterrence: The British Approach, by Myron A. Greenberg

(no. 8, December 1994).

Mission in the East: The Building of an Army in a Democracy in the New German States,

by Colonel Mark E. Victorson, U.S. Army (no. 7, June 1994).

The Burden of Trafalgar: Decisive Battle and Naval Strategic Expectations on the Eve of

the First World War, by Jan S. Breemer (no. 6, October 1993).

Beyond Mahan: A Proposal for a U.S. Naval Strategy in the Twenty-First Century, by

Colonel Gary W. Anderson, U.S. Marine Corps (no. 5, August 1993).

Global War Game: The First Five Years, by Bud Hay and Bob Gile (no. 4, June 1993).

The “New” Law of the Sea and the Law of Armed Conflict at Sea, by Horace B.

Robertson, Jr. (no. 3, October 1992).

Toward a Pax Universalis: A Historical Critique of the National Military Strategy for the

1990s, by Lieutenant Colonel Gary W. Anderson, U.S. Marine Corps (no. 2, April

1992).

“Are We Beasts?” Churchill and the Moral Question of World War II “Area Bombing,” by

Christopher C. Harmon (no. 1, December 1991).

Newport Papers 4, 10, and from 14 on are available online (Acrobat required) at

www.nwc.navy.mil/press/npapers/newpaper.htm.

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