New Paradigms for the Jus ad Bellum

I am delighted to be here today to honor Ed Cummings, a wonderful colleague and a source of great wisdom for so many of us. I first worked with Ed in the Legal Adviser's Office in the late 1980s. More than fifteen years later, Ed is still the person I turn to for insight on the most difficult issues in the law of armed conflict. Most memorably of all, while serving at the National Security Council in 1999, I worked closely with Ed in achieving an important treaty milestone: the Procotol restricting the use of child soldiers in armed conflict (the Child Soldier Protocol).1 Ed was the person who first saw the potential for a diplomatic compromise that became the essence of the treaty: namely, allowing voluntary recruitment of seventeen year olds into national armed forces (an important equity for the United States) but barring their deployment into active participation in hostilities prior to the age of eighteen.2 This compromise allowed for an international agreement that put the spotlight where it ought to be-on prohibiting the forced recruitment and deployment of underage kids-while also setting a clear age-eighteen standard for participation in hostilities. Ed's efforts over many years to achieve this result illustrate several characteristics of his work as a lawyer that I admire most: his savvy understanding of how legal rules work in complex and difficult circumstances; his appreciation for how sensible legal frameworks can safeguard U.S. security interests and advance U.S. values (such as humanity in warfare) in a dangerous world; and his diplomatic skill in finding reasonable common ground that protects U.S. equities while taking into account the perspectives and legitimate concerns of others. These virtues (practical savvy, appreciation of the value of sensible legal rules, and a capacity to find reasonable common ground) are just what we need today for thinking through the current challenges to the jus ad bellum-the legal framework governing the resort to force. I will argue that the existing UN Charter framework is under considerable stress; that neither highly restrictive nor highly permissive interpretations of the UN Charter are wise or compelling; that updated understandings rather than completely new paradigms are needed; and that finding some common ground, particularly concerning anticipatory self-defense in response to terrorism, is desirable and should be possible-but it will not be easy. The UN Charter has been the centerpiece of the jus ad bellum since 1945. With the overarching purpose of protecting international peace and security, the Charter establishes principles limiting the use of force, including the core non-intervention norm set forth in Article 2(4), which provides that states "shall refrain . . . from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."3 But the Charter's drafters also clearly understood that rules governing the use of force were insufficient without an enforcement mechanism that could draw upon the military and economic resources of the great powers, whose forces together had been necessary to defeat Hitler. Thus the Charter gave a body of states-the Security Council-primary responsibility for maintaining international peace and security and empowered it, in Chapter VII, to respond, with force if necessary, not only to breaches of the peace and aggression but also to threats to the peace. These terms were deliberately left undefined so that the Council could respond flexibly to concrete circumstances.4 The Charter also clearly affirmed the right of states to take immediate action in self-defense, confirming, in Article 51, that: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations . . . ."5 The Charter, in short, provides for the lawful use of force in two clear situations: when authorized by the Security Council or in self-defense. …