Lawlessness Within a Foreign State as a Legal Basis for United States Military Intervention to Restore the Rule of Law

• Author: Major Russell K. Jackson
• Pages: 04

MILITARY LAW REVIEW

Volume 187 Spring 2006

LAWLESSNESS WITHIN A FOREIGN STATE AS A LEGAL BASIS FOR UNITED STATES MILITARY INTERVENTION TO RESTORE THE RULE OF LAW

MAJOR RUSSELL K. JACKSON*

1. Introduction

   In the criminal justice system, the people are represented by two separate yet equally important groups: the police who investigate crime and the district attorneys who prosecute the offenders. These are their stories.1

   This is the opening line to television's longest running crime series.2

   It presupposes that legitimate governmental authority will maintain law and order. But what happens when fundamental law and order breaks down or ceases to exist? In the international arena, this possibility has become an all too common occurrence as, repeatedly, nations degenerate into lawlessness, creating a situation that threatens international peace

   and creates conditions for terrorism that threaten the United States and its interests. In these nations, there is no functioning government to control borders, apprehend criminals, or prevent territory from being used as staging bases for terrorist training and terrorist missions.3

   The rule of law and the maintenance of law and order in foreign states are legitimate policy concerns of the United States government.4

   This article explores the theory that the collapse of law and order within a foreign nation provides a legal basis for intervention using military force to reestablish the rule of law. The rationale behind this theory relies on the customary law of anticipatory self-defense, the United Nations (UN) Charter, and the 1974 UN General Assembly Resolution on Aggression.5 This article draws the conclusion that lawlessness, as a sole factor, is not sufficient to justify armed intervention for purposes of self-defense. That conclusion changes, however, if additional facts indicate that the lawless state is becoming a sanctuary for terrorist elements. This article argues that the traditional doctrine of self-defense is still the correct measure by which to gauge the actions of the United States. What shifts is the degree of evidence required to meet the imminent threat standard of the law.

   This article is not a policy statement recommending a specific course of action; rather, it is designed to further discussion about when the United States may intervene. Although this article takes a unilateral view towards intervention, there is no reason that the legal rationale could not be adopted by a regional organization, by an ad hoc coalition, or by the UN, to authorize early intervention.

2. Background on the Customary Law of National Self-Defense and the Anticipatory Use of Force

   A. The Customary Law of National Self-Defense

   1. President Jefferson and the Barbary Pirates

      It is generally recognized that a nation has the right to defend itself.6

      Historically, the United States' position has been that it has the inherent right to defend itself, its interests, and its people and their property, regardless of where they are located around the world.7 That notion was enforced early in the life of the Republic when President Thomas Jefferson determined to use force to end the tyranny of the Barbary States, which were exacting huge costs to commerce operating in the Mediterranean Sea.8

      The Barbary States were a group of small, North African city-states, loosely under the rule of the Ottoman Sultan.9 They were significant commercial centers but also engaged in commerce raiding.10 After seizing ships, the states would ransom the crews.11 If ransoms were paid once, the Barbary Pirates increased the ransoms at the next opportunity.12

      Simultaneously, insurance rates skyrocketed.13 Alternatively, some nations negotiated peace treaties with each of the Barbary States; not surprisingly, these treaties came at an exceptionally high price.14 For example, the treaties the United States struck with Tripoli and Algiers in the late 1700s cost approximately $1 million per year.15 The French and

      British willingly paid the high costs because the ransoms freed their navies for duty elsewhere and ultimately decreased the competition for French and British goods by shifting the focus to the fleets of smaller nations.16

      President John Adams subscribed to the French and British approach to the Barbary States; however, his Secretary of State, Thomas Jefferson, disagreed.17

      Thomas Jefferson . . . believed that if a nation wishes to be free and live in peace it must be able to defend itself and be willing to protect its rights. The issue was not whether we preferred war or peace, but whether we would have the option of peace in the absence of a credible ability and willingness to defend our rights.18

      And from his own pen:

      If it be admitted, however, that war, on the fairest prospects, is still exposed to uncertainties, I weigh against this, the great uncertainty of the duration of a peace bought with money . . . by a nation who, on hypothesis of buying peace, is to have no power on the sea, to enforce an observance of it.19

      From Jefferson's perspective the United States lost, regardless of whether it paid the ransoms or struck treaties.20 Failure to pay ransoms or make treaties meant the United States could not do business in the Mediterranean.21 Paying ransoms or making peace treaties rewarded the misbehavior of the Barbary States, encouraging them to increase their subsequent ransoms and treaty fees.22 Jefferson did the math; the money used to pay ransoms and fund treaties could be better spent building a

      navy, which could interdict the pirates and open the shipping lanes for the United States.23

      In 1785, while an Ambassador to France, Jefferson made his first efforts to do something about the problem.24 His idea was to form an "anti-piratical confederacy" with the weaker states on which the Barbars preyed.25 The French, however, vetoed the idea.26 Subsequently, treaties were struck with Tripoli and Algiers, but they devolved as the Barbary States refused to abide by them.27 A 1793 government commerce report further boosted Jefferson's ideas by concluding that commerce was an essential resource of the nation's defense and that United States commerce was vulnerable at sea.28 In the waning years of the eighteenth century, Jefferson identified his three primary foreign policy concerns:

      (1) the United States was militarily weak and therefore vulnerable; (2) the United States economy needed time to develop; and (3) neutrality and independence best secured the United States during the time of European wars.29

      Thomas Jefferson was elected President of the United States in 1801.30 With his foreign policy concerns in mind, he pursued a twotiered philosophy: first, use the economic force of commerce to deal with strong powers (e.g., England and France) by pitting their demand against them by properly valuating the United States' ability to be the source of supply;31 and second, for dealing with the lesser powers (e.g., Spain and Barbary States), use armed force to defeat their interference with the United States' commerce.32 This policy explicitly took a prospective view. These states were likely to try and harm United States commerce; therefore, the United States should militarily intervene and "meet the first insult."33

      President Jefferson wasted no time in taking military action against the Barbars. At his very first cabinet meeting he addressed the issue of

      the Barbary States.34 The cabinet unanimously concurred that the Navy should be dispatched to protect U.S. commercial shipping in the Mediterranean Sea and make war, if war was declared by the Barbary States on the United States.35 Although some within the Jefferson administration sought a formal declaration of war, the President opted instead to dispatch a naval fleet under the command of Commodore Richard Dale, with express instructions "to 'chastise' Algiers and Tripoli if they continued to attack American shipping."36 The fleet set sail on 1 June 1801.37 As it departed Hampton Roads, the Jefferson Administration was unaware that Tripoli had already declared war on the United States almost three weeks earlier.38 The American fleet proved highly effective in engaging the ships of the Barbary States, thereby opening the Mediterranean waters to U.S. shipping.39 Notably, it was almost six months later, in his annual address to Congress, that President Jefferson formally notified Congress of the dispatch of these forces.40

      The record does not indicate that Congress felt in any way that this use of force without a declaration of war or congressional authorization was improper or that the delay in formal notification was inappropriate.41

   2. The Bombardment of Greytown, Nicaragua

      A second incident that ingrained the notion that the President could act in defense of the nation's interests also occurred fairly early in the life of the Republic. It involved the bombardment of Greytown, Nicaragua. On 1 May 1852, at San Juan del Norte (Greytown), the Mosquito government relinquished control of the town to a government

      formed by local residents.42 This new government came into friction with the Accessory Transit Company (Company), a business composed of U.S. citizens.43 The government ordered the Company to remove some buildings, but the Company did not comply with the order.44 The government then sent an armed group who destroyed the buildings.45

      The situation was exacerbated a few days later when one of the Company's superintendents was arrested.46

      Difficulties between the new government and the Company continued through 1853.47 On 16 May 1854, an armed band tried to arrest the captain of the Company's steamer on a charge of the murder of a native boatman.48 The United States' minister to Central America attempted to intervene in the matter and was injured by a mob.49 The U.S.S. Cayne, under the command of Captain (CPT) George H. Hollins, was dispatched to Greytown to demand reparations for the Company's destroyed property and the insult to the United...