The fog of law: self-defense, inherence, and incoherence in article 51 of the United Nations Charter.

Author:Glennon, Michael J.
 
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  1. INTRODUCTION

    On a hot afternoon in July 2001, one of those rare, revealing scenes played out in Washington that seemed to convey, in one memorable moment, more than volumes of explanatory commentary and analysis. Testifying before the Senate Foreign Relations Committee was William J. Perry, Secretary of Defense during the Clinton Administration. His topic was the ABM Treaty. Toward the end of his testimony, almost as an aside, Perry presented a brief proposal. As a backstop to a missile defense system, he suggested the United States should establish a policy "that we will attack the launch sites of any nation that threatens to attack the U.S. with nuclear or biological weapons." (1)

    While Perry did not elaborate on the idea, its logic is compelling. An adversary considering the development of such weapons will have less incentive if it is aware that its effort ultimately will come to naught. But implementing the policy would present a slight problem, noted neither by Perry nor by any Senator: it would plainly violate Article 51 of the United Nations Charter, (2) which permits defensive use of force only in response to an armed attack.

    Why would senior American officials openly consider such a proposal in complete indifference to its violation of the Charter? Because, I have suggested, international "rules" concerning use of force are no longer regarded as obligatory by states. (3) Between 1945 and 1999, two-thirds of the members of the United Nations--126 states out of 189--fought 291 interstate conflicts in which over 22 million people were killed. (4) This series of conflicts was capped by the Kosovo campaign in which nineteen NATO democracies representing 780 million people flagrantly violated the Charter. The international system has come to subsist in a parallel universe of two systems, one de jure, the other de facto. The de jure system consists of illusory rules that would govern the use of force among states in a platonic world of forms, a world that does not exist. The de facto system consists of actual state practice in the real world, a world in which states weigh costs against benefits in regular disregard of the rules solemnly proclaimed in the all-but-ignored de jure system. The decaying de jure catechism is overly schematized and scholastic, disconnected from state behavior, and unrealistic in its aspirations for state conduct.

    The upshot is that the Charter's use-of-force regime has all but collapsed. This includes, most prominently, the restraints of the general rule banning use of force among states, set out in Article 2(4). (5) The same must be said, I argue here, with respect to the supposed restraints of Article 51 limiting the use of force in self-defense. Therefore, I suggest that Article 51, as authoritatively interpreted by the International Court of Justice, cannot guide responsible U.S. policy-makers in the U.S. war against terrorism in Afghanistan or elsewhere. (6)

  2. THE ILLOGIC OF ARTICLE 51: AN ANLAYSIS OF THREE COROLLARIES

    In one sense, the conclusion that Article 51 has no practical force follows a fortiori from my earlier argument: If there is no authoritative general prohibition of use of force, it makes no sense to consider the breadth of a possible exception. Yet an examination of Article 51 reveals a measure of inconsistency, illogic, and, indeed, incoherence that provides independent grounds for questioning its importuned restraints in decisions concerning use of force. The received interpretation of Article 51 consists in hopelessly unrealistic prescriptions as to how states should behave. Its more concrete sub-rules illustrate why policymakers have come to ignore the Charter's use-of-force regime in fashioning how states behave. In this Part, I discuss three of those subrules.

    1. Corollary #I--Providing Weapons and Logistical Support to Terrorists Does Not Constitute an "Armed Attack"

      The meaning of the term "armed attack" as used in Article 51 was authoritatively determined by the International Court of Justice in Nicaragua v. United States of America. (7) The Court there confronted the argument that Nicaragua had carried out an armed attack against El Salvador. The argument was used to justify the use of defensive force by third countries assisting El Salvador (namely, the United States). Nicaragua's armed attack, it was contended, consisted in providing weapons and other support to rebels seeking to overthrow the Salvadorian government. The Court rejected the argument. "[W]hile the concept of an armed attack includes the despatch by one State of armed bands into the territory of another State," the Court concluded, "the supply of arms and other support to such bands cannot be equated with armed attack." (8) "[A]ssistance to rebels in the form of the provision of weapons or logistical or other support" does not constitute an armed attack. (9) Active, not passive, support--an actual "sending" of "armed bands, groups, irregulars or mercenaries," or "substantial involvement therein"--is necessary to meet the armed attack requirement. (10)

      Lest it be thought that the Court's view is aberrational, it should be pointed out that commentators had earlier taken the same position, and it has never been disavowed by the United Nations. Ian Brownlie, for example, writing as early as 1963, opined:

      Since the phrase `armed attack' strongly suggests a trespass it is very doubtful if it applies to the case of aid to revolutionary groups and forms of annoyance which do not involve offensive operations by the forces of a state. Sporadic operations by armed bands would also seem to fall outside the concept of "armed attack." (11) Others have even suggested that great powers may be precluded from using force in response to such attacks while lesser states may suffer no such disability. (12)

      Following the September 11 terrorist attacks in the United State, the U.N. General Assembly "strongly condemn[ed] the heinous acts of terrorism" but declined to characterize the acts as an "armed attack" under Article 51. (13) The Security Council also condemned the attacks in two resolutions that contained preambular language recognizing the inherent right of self-defense. (14) But the Council stopped short of authorizing the use of force, which the United States did not seek and probably did not want. (15)

      The implications for the war against terrorism are clear. Use of force against the Taliban government of Afghanistan was, under the Court's construction of Article 51 in its Nicaragua opinion, unlawful. For that matter, if the government of Afghanistan had directly provided the terrorists with airplane tickets, funds for flight lessons, and the box cutters used to hijack the aircraft that crashed into the World Trade Center and the Pentagon, or if the Afghan government had provided the anthrax spores used to contaminate the American postal system, such support still would not constitute an armed attack, and use of force against the Afghan government would therefore not have been permitted. Indeed, the entire approach of the United States in fighting terrorism--refusing to distinguish between terrorists and those who harbor them, which has come to be called the "Bush Doctrine" (16)--is outlawed by this precept to the extent that it precludes any use of force against states that only passively provide a safe harbor for terrorists and avoid substantial involvement in the terrorists' activities. Had information that has subsequently come to light been available to the United States at the time force was initially deployed against Afghanistan, it is conceivable that a "substantial involvement" test could have been met. Press reports filed after the commencement of U.S. attacks suggest a symbiotic relationship between Al Qaeda and Afghanistan's Taliban government, (17) and perhaps even active participation of the government in planning Al Qaeda's attacks on the United States, (18) that might imply substantial governmental involvement in "sending" Al Qaeda units to the United States. But unless the U.S. government had such evidence in hand at the time it moved against the Afghan government, that evidence (like incriminating evidence uncovered as the result of an unlawful search or seizure under U.S. law) would be irrelevant under accepted international jurisprudence.

    2. Corollary #2--Defensive Use of Force To Overthrow a Government That Provides a Safe Haven to Terrorists is Disproportionate Per Se and Unlawful

      Proportionality refers to the requirement that force used in self-defense be no greater than the evil necessitating that force. Although the text of Article 51 makes no reference to proportionality, that concept has been regarded as implicit in the notion of self-defense. In the Nicaragua case, the International Court of Justice indicated that pre-existing requirements of proportionality survived the adoption of Article 51 and continue to govern the defensive use of force. (19) The Court proceeded to find that the limits imposed by principles of proportionality were exceeded by the acts carried out by the United States. (20) Indeed, it seemed to say that such acts, however invasive, could never be proportionate to the provocation: "Whatever uncertainty may exist as to the exact scale of the aid received by the Salvadorian armed opposition from Nicaragua," it concluded, no level of aid could under any circumstances justify attacks on Nicaragua's ports and oil installations. (21)

      Again, the implications of this reasoning for American action in Afghanistan and elsewhere are clear. The principle of proportionality, so construed, would necessarily prohibit action broader than the action undertaken in the Nicaragua case in response to a provocation that is less substantial than the provocation posed in the Nicaragua case. Specifically, if the United States' action against Nicaragua (attacks on its ports and oil installations) necessarily constituted a disproportionate response to...

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