Following the September 11th attacks in the United States (U.S.), one could make a case for America's use of force in Afghanistan as a lawful exercise of the right of self-defense. (1) But the proposals to invade Iraq following September 11th cannot be so defended. Those proposals did not concern defending the basic security of the U.S. in the sense that basic security defense is currently understood in the international community. They concerned, rather, defense of a more expansive concept of security, a concept wherein the U.S. need not tolerate antagonistic regimes with the potential to harm U.S. interests. The invasion plans represent a view that the United States is a privileged nation with more rights than others. (2) Under this view, the United States may invade Iraq and remove Iraq's leader, Saddam Hussein, because he poses an indefinite future threat, the type of threat a superpower need not live with, though all other states must.
The belief in American exceptionalism has been part of American thinking since the country's founding. (3) Officials in the Reagan Administration, especially Jeanne Kirkpatrick and Allan Gerson, applied this thinking to international law rules on the use of force. (4) The belief also appears in the Clinton Administration policies of Madeleine Albright and William Cohen regarding the North Atlantic Treaty Organization (NATO) and its right to use force without United Nations (U.N.) Security Council authorization. (5) American exceptionalism is fully evident on the part of those who proposed invading Iraq in the aftermath of September 11th, especially Paul Wolfowitz and Richard Cheney. The position taken by other governments--that an invasion of Iraq without Security Council authorization would be an act of aggression--has not been answered by the Bush Administration. (6) A justification under law was not part of the Administration's public position when it began discussing an invasion. (7)
This is one of the rare occasions since the adoption of the U.N. Charter that the United States has been so disinterested in international law as to not provide an explanation as to how a major use of armed force would comply with the law. Another time was in 1999 in respect to the bombing of Yugoslavia. (8) The significance of this is not that the United States has always acted consistently with international law and now suddenly it is not. The United States has plainly violated international law on the use of force in the past. The difference is that now the prevailing view sees no need to offer explanations. The United States need not show how it has acted consistently with the principles of the community. The United States is above the law. That is a significant departure from the past that may well have serious negative consequences for future legal restraints on the use of force.
This paper is about the current and future law of self-defense. It applies the law to Operation Enduring Freedom in Afghanistan and to a proposed invasion of Iraq in light of the circumstances prevailing in Spring 2002. The analysis shows that while Enduring Freedom was arguably lawful, an invasion of Iraq would indeed be an act of aggression. The discussion then turns to the impact an invasion, or even the planning for an invasion, would have on the legal regime for restraining force. Because international law's structure is based on the members' equality under the law, (9) treating the United States exceptionally in a matter as grave as an unlawful invasion will have serious consequences for the future legal regime for restraining the use of force. The thesis of this paper is not necessarily to defend the old order. The aim is a more modest one: pointing out how that order is changing.
THE LAW OF SELF-DEFENSE
International law generally prohibits the use of force except in self-defense or with the authorization of the U.N. Security Council. (10) The right of self-defense allows the use of an armed force against an armed attacker when that force can prevent future attacks and is proportional to the threat. These circumstances arguably existed on October 7, 2001, when the United States and the United Kingdom launched Enduring Freedom in Afghanistan. The necessary circumstances did not exist in Spring 2002 when the Bush administration openly discussed invading Iraq. A state may still use force when conditions do not permit self-defense, if the U.N. Security Council authorizes the force. (11) But in the case of Iraq, no sufficient authorization existed when the plan to invade was formed. The discussion below begins with self-defense, then turns to the U.N. Security Council authorization.
THE LAW OF SELF-DEFENSE
An armed response in self-defense is lawful when four conditions are met:
An armed attack has occurred;
The response is aimed at the armed attacker;
The response has the purpose of preventing future attacks;
The response is necessary to remove the threat and is proportional in the circumstances. (12)
United Nation Charter Article 51 mandates that force in self-defense may only be used to respond to an armed attack. (13) The International Court of Justice [hereinafter ICJ] in the Nicaragua Case in 1986 provided an authoritative interpretation of Article 51. (14) The Court found the "attack" refers only to acts in Article 51 which could amount to an actual armed attack. Moreover, such acts must amount to significant force. The Court, relying on the General Assembly's Definition of Aggression, held that "'armed attack' means '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' (inter alia) an actual armed attack conducted by regular forces...." (15)
The Court assessed U.S. claims that the United States used force on the territory of Nicaragua in lawful collective self-defense of E1 Salvador. After considering U.S. arguments that Nicaragua had first used unlawful force, the Court concluded that the evidence did not prove Nicaragua had first used force significant enough to trigger lawful collective self-defense.
The facts of Nicaragua did not invite the Court to consider the problem of when self-defense may actually begin. In the circumstances of the case, attacks were on-going and the question was one of significance in respect to what the United States characterized as the first armed attack to trigger the fighting--shipments of weapons by the Nicaraguan government to rebels fighting the government of El Salvador. The Court only had evidence of low-level shipments, which it found did not amount to an armed attack. (16) We have no judicial decision on the question of when self-defense to an armed attack may begin. International lawyers have reached consensus that just as in the case of individual self-defense in domestic law, the state need not wait to suffer the actual blow before defending itself, but it must be sure the blow is coming.
The United States and United Kingdom discussed the conditions giving rise to the right of self-defense in the Caroline Case. (17) They concluded that a state is on solid legal ground to begin self-defense when the "[n]ecessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation." (18)
In the case of Enduring Freedom in Afghanistan, the September 11th attack was clearly an armed attack that could give rise to self-defense should other conditions be met. The U.N. Security Council referred in two resolutions to the right to resort to self-defense in the context of September 11th. (19) No state argued that such attacks should not give rise to self-defense.
This is the only event since World War II that has given rise to a U.S. use of force in its own defense. The United States is justifiably worried about states, like Iraq, possessing weapons of mass destruction. But mere possession of such weapons without more is not an act amounting to an armed attack. In the ICJ's advisory opinion in Nuclear Weapons Case, the Court held the use of nuclear weapons would be unlawful except in "an extreme circumstance of self-defense," but it could not decide whether the threat to use them would be unlawful. (20) A fortiori, the mere possession without a threat is not unlawful under general international law. (21) When Israeli jets bombed a nuclear reactor under construction at Osirik, Iraq in 1981, the U.N. Security Council condemned the bombing, (22) despite the threat nuclear weapons in the hands of Saddam Hussein could pose for Israel. The Council found "the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct." (23)
Armed attacks, did occur on September 11th, however, so the United States had the right to take self-defensive measures following that day. It has no right of self-defense to eliminate weapons of mass destruction in Iraq. It certainly has no right of self-defense to attack a state to eliminate persons who might be planning to possess weapons of mass destruction.
If the requisite armed attack occurs or will occur imminently, the response to the armed attack must aim at those responsible for the attack. If the response aims at the territory of a state, that state must be legally responsible for the attack before it may be targeted in self-defense. Legal responsibility follows if the territorial state used its own agents to carry out the attack; if it controlled or supported the attackers; possibly where it failed to control the attacks; or where it subsequently adopted the acts of the attackers as its own. (24)
The case can be made that the September 11th attackers were so closely aligned and supported by Afghanistan's de facto leaders, the Taliban, as to give rise to Afghanistan's responsibility. (25) No comparable case can be made, or indeed, any case for Iraq's responsibility for September 11th. In the Spring of 2002, no evidence of a...