Seventeenth Waldemar A. Solf Lecture in International Law

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138 MILITARY LAW REVIEW [Vol. 181

SEVENTEENTH WALDEMAR A. SOLF LECTURE IN INTERNATIONAL LAW1

PROFESSOR MICHAEL J. GLENNON2

Thank you so much for that very kind and generous introduction. General Black, General Rikhye, Lieutenant Colonel Wollschlaeger, and honored guests, it is a terrific pleasure to be here today to give this famous lecture and to visit this most impressive institution.

I am especially honored to have a chance to talk to those of you who make a difference in the first instance in the life and death of the rule of law. As an academic, I often talk to students about the need for internalizing the theoretical framework of the law. I think all of us who have been in the world of practice know that [the theoretical framework] only really

1. This is an edited transcript of a lecture delivered on 3 March 2004, by Professor Michael J. Glennon to the members of the staff and faculty, distinguished guests, and officers attending the 52d Graduate Course at The Judge Advocate General's Legal Center and School, U.S. Army, Charlottesville, Virginia. The Judge Advocate General's School, U.S. Army, established the Waldemar A. Solf Chair of International Law on 8 October 1982. The chair is named in honor of Colonel (COL) Waldemar A. Solf (1913-1987). Colonel Solf, commissioned in the Field Artillery in 1941. He became a member of the Judge Advocate General's Corps in 1946. Colonel Solf's career highlights include assignments as the Senior Military Judge in Korea and at installations in the United States; the Staff Judge Advocate of the Eighth U.S. Army and United States Forces Korea, the United Nations Command, and the United States Strategic Command. He also served as the Chief Judicial Officer, U.S. Army Judiciary, and as the Chief, Military Justice Division, Office of The Judge Advocate General (OTJAG).

   After two years lecturing with American University, COL Solf rejoined the Corps in 1970 as a civilian employee. Over the next ten years, he served as Chief of the International Law Team in the International Affairs Division, OTJAG, and later as chief of that division. He was a representative of the United States to all four of the diplomatic conferences that prepared the 1977 Protocols Additional to the 1949 Geneva Conventions. After his successful efforts in completing the Protocol negotiations, he returned to Washington and was appointed the Special Assistant to The Judge Advocate General for Law of War Matters. Having been instrumental in promoting law of war programs throughout the Department of Defense, COL Solf again retired in August 1979.

   In addition to teaching at American University, COL Solf wrote numerous scholarly articles. He also served as a director of several international law societies, and was active in the International Law Section of the American Bar Association and the Federal Bar Association.

   matters where the law is actually applied, where the law lives or dies. So, I'm especially honored to have a chance to be with you here today.

   I want to talk to you about an experiment, about the greatest legalist experiment of the 20th century: humanity's effort to subject the use of force to the rule of law. I want specifically to discuss the failure of that experiment. I'm going to do that by addressing, first, the nature of the problem, which can be succinctly stated; second, the solution that humanity settled upon to resolve that problem; third, the failure of that solution; fourth, the reasons for that failure; and finally, where we go from here―specifically, what the United Nations (UN) and the United States can do about it.

   First, the problem. For the better part of human history, the fate of states was determined by geopolitics, by geography and economics, by diplomacy and trade, and not least by relative military might. The interplay of those forces produced anarchy and often, massive brutality. War was fought frequently and pitilessly. Cities were burnt. Farmland was laid waste. Populations were exterminated and survivors were enslaved. Finally with the deaths of forty-seven million people in World War I, humanity turned its back, or thought it turned its back, on the reigning geo-2. Professor of International Law at the Fletcher School of Law and Diplomacy, Tufts University, Medford, Massachusetts. Professor Glennon previously has taught at the University of California, Davis, Law School, and the University of Cincinnati College of Law. Before teaching, he was Legal Counsel to the Senate Foreign Relations Committee (1977-1980) and Assistant Counsel in the Office of the Legislative Counsel of the United States Senate (1973-1977). From 1980 to 1981, he was in private law practice in Washington, DC. In 1998 he taught international and constitutional law in Lithuania on a Fulbright fellowship. During the 2001-2002 academic year, Professor Glennon was a Fellow at the Woodrow Wilson International Center for Scholars in Washington, DC. He is the recipient of the Deak Prize and Certificate of Merit from the American Society of International Law. From 1986 to 1999, he was a member of the Board of Editors of the American Journal of International Law. He is a member of the American Law Institute and the Council on Foreign Relations.

   He served as a consultant to various departments and agencies of the federal government, congressional committees, foreign governments, and the International Atomic Energy Agency. He has testified before the International Court of Justice and various congressional committees. A frequent commentator on public affairs, he has spoken widely within the United States and overseas and appeared on Nightline, The Today Show, NPR's All Things Considered, and other national news programs. His op-ed pieces have appeared in the New York Times, Washington Post, Los Angeles Times, International Herald-Tribune, Financial Times, and the Frankfurter Allgemeine Zeitung. Professor Glennon is the author of numerous articles on constitutional and international law and a number of books on the same subject areas.

   political balance of power system, and substituted what it thought was a new legalistic order to constrain the exercise of state power. This new order was embodied, as we all know, in the Covenant of the League of Nations.3 "The tents have been struck," said South African Prime Minister Jan Christian Smuts, "and the great caravan of humanity is once more on the march."4 Smuts said that at the framing of the Covenant of the League of Nations treaty at the Versailles Peace Conference in 1919.5 The Covenant regime was embellished eight years later by the famous, or infamous, Kellogg-Briand Pact by which states promised to forego war as an instrument of national policy.6 For the first time, the use of force by one state against another was declared by the international community to be unlawful.

   Well, as we all know, it didn't work. Millions more people were killed in World War II. In San Francisco in 1945, representatives of the community of nations met once again to ensure that [war] never happened again ― "to save succeeding generations from the scourge of war"―in the famous words of the UN Charter.7 The solution that was arrived at in San Francisco is familiar, but I think it may be worth taking a moment to review. The framework is set out in Chapter VII of the UN Charter.8 The point of Chapter VII was to give the UN Security Council a monopoly on the use of force. The idea was to set up a system in which the use of force would be permissible in only two circumstances: one, if it was authorized by the UN Security Council in response to a threat to the peace, breach of the peace, or act of aggression; and second, under Article 51 of the Charter, for self-defense, in the event of an armed attack upon a member state.9

   These are the only two circumstances in the UN Charter in which use of force is permitted. The idea was that this strict limitation on the right of states to use force for self-help made sense because the Security Council would be, as Winston Churchill put it, a constabulary force before which the forces of atavism and barbarism would stand in awe.10 It would be a

3. Covenant of the League of Nations, reprinted in BENJAMIN B. FERENCA, 1 DEFINING

   INTERNATIONAL AGGRESSION: THE SEARCH FOR WORLD PEACE (1975).

4. Lieutenant-General Jan Christian Smuts, The League of Nations: A Practical Suggestion, reprinted in 2 THE DRAFTING OF THE COVENANT 23, 60 (David Hunter Miller ed., 1928).

5. Treaty of Versailles, June 28, 1919.

6. Aug. 27, 1928, 46 Stat. 2343, T.S. No 796, 94 L.N.T.S. 57.

7. U.N. CHARTER pmbl.

8. U.N. CHARTER ch. VII.

9. Id. art. 51.

   constabulary force because the Security Council would enter into special agreements with member states under Article 43 of the Charter,11 states that would agree to provide it with naval and sea and land units to serve in a standing or stand-by force, which would respond decisively when states reported to the Security Council (as they were required to do) when they were attacked.

   Well, that's the way the system was intended to work. Of course, as we all know, it didn't quite turn out that way. The Security Council, paralyzed by the threat of the Soviet veto during the Cold War, never initiated the negotiation of special agreements with member states. No standing or stand-by force was ever set up under the military staff committee of the Security Council. In the fullness of time, states once more began to use force for purposes of self-help. By the 1990s, well over 200 instances could be cited in which states had used armed force in clear violation of the prohibition in Article 2, paragraph 4 of the UN Charter against any use or threat of force against the territorial integrity or political independence of any state.

   Most recently, in the 1990s, we saw nine African states involved in what Madeleine Albright12 referred to as Africa's "First World War,"13...