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January|February 2003
Almost Infamous By John Swansburg
A Lawyer's Limits By Jonathan L. Hafetz
Block Sender By Beth Taylor
Lone Star By Jordan Smith
Neolawisms By Adam Hanft
Off Target By James B. Jacobs
New War, Old Law By Stéphanie Giry

New War, Old Law

Would a unilateral strike against Iraq ever have been legal?

By Stéphanie Giry

With a confusing jumble of arguments, President George W. Bush has for months now been making a case for waging war against Iraq. At times, he suggests that war is part of the United States' larger struggle against terrorism. At other times, he cites the looming threat of Iraq's nuclear weapons program and invokes a sweeping new foreign policy based on the right of the United States to preemptive self-defense. At other times still, he argues that Iraq ought to be punished for not complying with the Security Council resolutions to which it agreed in exchange for an end to the Gulf War.

Bush's most sweeping justifications are his weakest. His first argument suggests that the war would be a response to the attacks of September 11, but the Administration has yet to make a convincing case for Iraq's alleged role in the attacks. And his argument for preemption doesn't seem to meet the legal test on which it presumably relies. The classic definition of anticipatory self-defense, formulated in 1842 by Secretary of State Daniel Webster, allows for preemptive strikes only when the need for them is "instant [and] overwhelming, and [leaves] no choice of means, and no moment of deliberation."

But Bush's most modest argument for retaliation may be his strongest. Punishing a state that has repeatedly failed to comply with its international obligations is an important way of enforcing international law. And the Administration's call for using unilateral force to do so isn't unprecedented: Military retaliations were widely accepted before the creation of the United Nations. Even since then, some governments and scholars have argued that states may use armed reprisals in limited circumstances, to step in the shoes of the United Nations when it fails to protect the peace.

In the 19th century, states dealt with each other strictly on the basis of reciprocity. There were no overarching institutions to make or enforce international law—no United Nations, no world legislature, police, or court—and states would grant each other a right on the understanding they would also receive it in return. By extension, states had the right to retaliate against states that failed to honor these arrangements. They could even use armed reprisals—that is, if they were injured, they could retaliate with force, in ways that would otherwise have been considered illegal. In the absence of a supranational authority, this form of self-help was a way for states to get compensation for their losses, punish their offenders, and deter future violations. Along with a complex web of alliances and treaties, the practice of reprisals helped maintain a balance of international power.

If the retaliatory use of force was condoned, it was also contained. Under the principle of proportionality, a state could retaliate only to inflict a sanction comparable to the harm it had suffered—an eye for an eye; not two for one. For years, states informally agreed to apply proportionality and other principles designed to limit unnecessary suffering. By the early 20th century, these principles had been expanded and codified in more than a dozen treaties. The Geneva Conventions of 1864 and 1906 and the Hague Conventions of 1899 and 1907, for example, outlined the rules that governed the treatment of prisoners, wounded soldiers, and civilians during war.

The aftermath of World War I brought about initial attempts to outlaw the unilateral use of force. The Covenant of the League of Nations of 1919, which created the first modern international organization, prevented league members from using force against each other's "territorial integrity and existing political independence" without first trying to settle disputes through arbitration. In 1928, the major powers of the time signed the Kellogg-Briand Pact, which purported to give up war "as an instrument of national policy in their relations with one another."

But while these treaties broke new ground, they didn't ban the use of force in retaliation for violations of the international order. In the 1920s and 1930s, in fact, several tribunals upheld the right to armed reprisals, most notably in the seminal 1928 Naulilaa decision. In 1914, Portuguese troops at the Naulilaa border post in southwestern Africa killed two German officers and a German national from a neighboring colony in a skirmish that erupted over an innocent translation error. Without warning, the local German governor launched attacks on nearby Portuguese posts. The Naulilaa tribunal deemed the German raids illegal because the shootings by the Portuguese troops had been a mistake, not a deliberate breach of international law, and because the German response was disproportionate. In so doing, the decision confirmed that armed retaliations could be appropriate if they responded, in a proportional way, to an illegal act.

It wasn't until after World War II that armed reprisals were officially banned. In 1945, the Charter of the United Nations stated the rule prohibiting aggression that still applies today: "All members shall refrain in their international relations 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." The Charter granted the Security Council a quasi-monopoly on force, limited only by the right of states to act in self-defense in response to "an armed attack." In the event of a provocation short of an armed attack, states were expected to trust the Security Council to respond properly—with economic sanctions or force or whatever other measure it deemed appropriate.

This is a trying system, for it asks that states curb themselves when they are provoked or even injured. Its challenges became clear almost as soon as it was created. In 1946, after two British destroyers were blown up by mines while lawfully passing through the territorial waters of Albania, Britain sent warships there to sweep for mines and subsequently sued Albania before the U.N.'s International Court of Justice. In what is known as the Corfu Channel case, the ICJ ruled that Albania was responsible for the damage to the ships. But it also found that the "self-help" sweeping operation carried out unilaterally by the British was a violation of Albania's sovereignty, regardless of "present defects in international organization."

Since Corfu Channel, states have continued to use armed reprisals in practice, skirting the Charter's prohibition by characterizing their actions as self-defense—even when they haven't suffered an armed attack. States have invoked "self-defense" to use force to protect their nationals abroad, to help other peoples break free from oppressive regimes, and to quash terrorist activities. In 1955, Israel took the position that the "accumulation of events" in the Middle East since its founding has put it in a perpetual state of self-defense. More recently, the United States invoked self-defense to justify its 1993 attacks on Baghdad in retaliation for the attempted assassination of Bush's father, former president George H.W. Bush. It also used self-defense as a basis for its air raids in Afghanistan and Sudan in response to the 1998 terrorist bombings of the U.S. embassies in Kenya and Tanzania.

The Security Council has condemned Israel and others for declared acts of self-defense, but has largely kept silent about the United States, which holds veto power. Additional U. N. bodies, like the ICJ, the General Assembly, and the International Law Commission, have confirmed the ban on armed reprisals.

Yet an eclectic cast of intellectuals and international law experts has argued against the U.N.'s blanket prohibition on armed reprisals. Experts like Derek Bowett, Stephen Schwebel, and Michael Walzer regret that in a world where the United Nations has failed to provide collective security, individual states, which have been stripped of the right to reprisals, can't deter low- and mid-level aggressions. And when the system breaks down, they argue, states should be allowed to take matters in their own hands. As early as the 1960s, the international law expert Richard Falk (who opposes the proposed war on Iraq) called for a return to armed reprisals, within modern guidelines. Falk argued that armed reprisals were appropriate when they respected certain general policies—when, among other things, they were proportional, targeted only military objectives, and followed clear warnings and genuine attempts to resolve disputes peacefully.

It's unclear whether the Bush Administration would consider justifying a war in Iraq strictly as a reprisal without also arguing that the United States was acting in preemptive self-defense. And it's unclear whether that would be a defensible position: Invading Iraq may be an excessive, or "disproportional," response to Iraq's breaches of Security Council resolutions. But at least the grounds for the war would be comprehensible, and the historical precedent clear.

Stéphanie Giry is an associate editor of Legal Affairs.

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