The use of force and (the state of) necessity.

• Author: Laursen, Andreas

ABSTRACT

At the beginning of the twenty-first century, debates about international law and the use of force have gained new momentum. This is due to the armed conflicts in Kosovo, Afghanistan, and Iraq as well as the publication of two recent security strategies by the U.S. government. These strategies consider the possibility of preemptive use of force and have received considerable criticism from international law scholars. Professor Laursen asks whether the necessity excuse in international law allows for preemptive strikes of the sort envisioned by the U.S. security strategies. Following an examination of the status of the necessity excuse in international law, which finds that necessity is a legitimate part of current international law and under certain circumstances provides an excuse for a state's breach of its obligations, Professor Laursen analyzes whether the necessity excuse may be invoked in the context of the use of force. He concludes that the necessity excuse is not normally available in the case of use of force against "traditional" terrorism. With regard to "new" terrorism, the excuse may be appropriate, but the central issue of "imminence" will remain problematic when considering preemptive strikes.

TABLE OF CONTENTS I. INTRODUCTION II. THE WORK OF THE INTERNATIONAL LAW COMMISSION III. THE STATUS OF NECESSITY A. International Decisions Involving Necessity B. States C. Scholars IV. THE GABCIKOVO-NAGYMAROS PROJECT CASE AND THE CUMULATIVE CONDITIONS V. PEREMPTORY NORMS AND NECESSITY: THE USE OF FORCE AS A POSSIBLE DIFFERENTIATION.? A. Background B. Practice C. Necessity and Terrorism 1. "Traditional" Terrorism and Necessity 2. "New" Terrorism and Necessity VI. CONCLUSION A strict observance of the written law is doubtless one of the high duties of a good citizen, but not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.

Thomas Jefferson (1)

Not kennt kein Gebot! (necessity knows no law)

Von Bethmann-Hollweg (2)

To say that a power is necessary, that it logically results from a certain situation, is to admit the non-existence of any legal justification. Necessity knows no law, it is said; and indeed to invoke necessity is to step outside the law.

Judge Gros (3)

[International law] rejects the idea that necessity knows no law.

Oscar Schachter (4)

1. INTRODUCTION

   Writing in 1986, the distinguished British professor Brownlie lamented that "the use of force is a subject younger lawyers tend to avoid these days." (5) Brownlie found that in the 1980s, human rights and the protection of the environment attracted greater attention in spite of the fact that, according to Brownlie, the main threats to human rights and the environment came inter alia from the use of force by states. At the beginning of the twenty-first century, debates about international law and the use of force have gained new momentum. Spurred on by the end of the Cold War as well as the armed conflicts in Kosovo (1999), Afghanistan (2001) and Iraq (2003), in addition to the publication of the two recent security strategies by the U.S. government, (6) international legal scholarship has seen nothing if not an overwhelming resurgence of interest in the regulation of the use of force.

   Among the more controversial concepts to involve the agora of international legal minds is the theory of pre-emptive use of force. Although some argue that the seeds of the strategy of pre-emptive force may be found in the 1992 "Defense Planning Guidance," (7) President Bush first announced the idea when he told graduates at West Point Military Academy, "[O]ur security will require all Americans to be forward-looking and resolute, to be ready for preemptive action when necessary to defend our liberty and to defend our lives." (8) The President's thoughts have now been codified in the National Security Strategy (NSS):

   We will disrupt and destroy terrorist organizations by ... identifying and destroying the threat before it reaches our borders ... we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively against such terrorists, to prevent them from doing harm against our people and our country. (9) As is clear from the text just quoted, the drafters of the NSS document perceive "acting preemptively" as being within "our right of self-defense." The legal side of the argument is subsequently elaborated upon.

   For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat--most often a visible mobilization of armies, navies, and air forces preparing to attack. (10) Here the NSS document finds that anticipatory self-defense is permissible in international law, which is generally a fair statement, even if not all international law scholars agree. There is, however, a problem of "imminence," which also may be seen as the distinguishing point between anticipatory self-defense and a preemptive strike, although the NSS document conflates the two concepts. Thus, the document continues, 'We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries." (11) The document goes on to describe the new threats, concluding, "[I]n an age where the enemies of civilization openly and actively seek the world's most destructive technologies, the United States cannot remain idle while dangers gather." (12) Presidential spokesman Ari Fleischer put it as follows,

   Preemptive doctrine, of course, as laid out by the President at West Point and as expounded upon by the Vice President yesterday, says that time is not on America's side. We don't have time to wait for them to develop these weapons and attack us without any warning. And therefore, the doctrine of preemption, as the President laid it out, is a way to continue America's efforts to promote peace around the world by denying them the ability to inflict damage on us. (13) It may be posited that this is the crux of the matter: The U.S. efforts to broaden the concept of "imminence" are the central legal issue in the new strategy of preemptive use of force. This is what causes some legal scholars to object to the NSS strategy, "De lege lata, however, the expansion of the right of anticipatory self-defence proposed in the National Security Strategy is not acceptable." (14) It is probably fair to assert that the majority of scholars agree with this statement by Bothe. (15) Among the voices of concern is that of the Secretary General of the United Nations, who on September 23, 2003 declared that the logic of using force preemptively "represents a fundamental challenge to the principles on which, however imperfectly, world peace and stability have rested for the last fifty-eight years." (16)

   This conclusion raises a number of questions. At a theoretical level, one may consider how the U.S. claims affect the development of international law. Is it advisable to allow for the proposed broadening of the concept of "imminence?" Or is this a dangerous development for international law and society? At a more practical level, it might be asked how the United States would justify a preemptive use of force in a situation where the use of force was found necessary. Put another way: Is the preemptive use of force only legally conceivable under the NSS documents self-defense rubric, which is generally considered to be at odds with international law? Or does international law already provide a more suitable excuse for the use of force in exceptional circumstances? It is suggested that a defense for the use of force might be found in the necessity excuse.

   Part II of the present Article sets out the very substantial work on the necessity excuse, which has been carried out the International Law Commission (ILC). Part III examines the opinions of international judicial bodies, of states, and of international legal scholars. Part IV examines the Gabcikovo-Nagymaros Project case before the International Court of Justice (ICJ) and analyzes the cumulative conditions of the necessity excuse. Part V addresses the controversial issue of the possibility of excusing the use of force by reference to necessity. This leads to a more specific examination of use of force against terrorism and the necessity excuse. Based on this study, it is concluded that the necessity excuse is not normally available in the case of use of force against "traditional" terrorism. With regard to the "new" terrorism, including terrorism employing weapons of mass destruction, the necessity excuse may be appropriate but the issue of imminence will continue to cause problems in considering preemptive strikes.

2. THE WORK OF THE INTERNATIONAL LAW COMMISSION

   Necessity in international law may provide an excuse for a state's breach of its obligation or, in other words, the state of necessity may be a circumstance precluding wrongfulness in the parlance of state responsibility. Throughout the years, necessity has been a controversial and contested concept. It has, however, not attracted much academic examination in its own right. Writing in 1928, in what would seem to be the most recent monograph on the topic, Rodick could not find any earlier attempts to deal critically with the doctrine of necessity in international law. (17) All this may soon change, though, now that the latest and last Special Rapporteur, James Crawford, has "rescued" the topic of state responsibility. (18) In addition to the work of the ILC, a recent judgment of the ICJ dispelled...