'U.S.' Ad Bellum: Law and Legitimacy in United States Use of Force Decisions

• Author: Major Donald L. Potts
• Pages: 196-246

196 MILITARY LAW REVIEW [Vol. 219

U.S. AD BELLUM:

LAW AND LEGITIMACY IN UNITED STATES USE OF

FORCE DECISIONS

MAJOR DONALD L. POTTS

I. Introduction

The United Nations (UN) was created in 19451 in part to “save

succeeding generations from the scourge of war”2 and to regulate the

threat or use of force among nations.3 It has failed on both counts.4

Although virtually every nation on Earth is a member of the UN5 and has

therefore pledged to “refrain in their international relations from the

* Judge Advocate, U.S. Army. Presently assigned as a Brigade Judge Advocate, 12th

Combat Aviation Brigade and Officer-in-Charge, Ansbach Law Center, Ansbach,

Germany. LL.M., 2013, The Judge Advocate General’s Legal Center and School,

Charlottesville, Virginia; J.D., 2003, Northern Illinois University; B.A., 1999, Niagara

University. Previous assignments include Training Branch, International and Operational

Law Division, Office of the Judge Advocate General, Pentagon, Washington, D.C.,

2010–2012 (Deputy Chief, 2012; Brigade Judge Advocate Mission Primer Officer in

Charge, 2010–2012); Deputy Team Chief, 91st Legal Support Organization, Forest Park,

Illinois, 2009–2010; Operational Law Planner, CJ-5, Plans, Multi-National Force-Iraq,

Baghdad, Iraq, 2008–2009; Operations Officer and Assistant Operations Officer, 91st

Legal Support Organization, Fort Sheridan, Illinois, 2006–2008; Company Commander,

E/1-274/2/84th Div (IT), 2003–2005; Company Executive Officer, D/1-274/2/84th Div

(IT), 2002–2003; Tactical Intelligence Officer, 256th Infantry Brigade, Louisiana Army

National Guard, (1991); Assistant S2, 1-127 Armor, New York Army National Guard

(1989–1991). Member of the bars of Illinois and the Northern District of Illinois. This

article was submitted in partial completion of the Master of Laws requirements of the

61st Judge Advocate Officer Graduate Course.

1 UN at a Glance, http://www.un.org/en/aboutun/index.shtml (last visited May 19,

2014); JOHN F. MURPHY, THE UNITED NA TIONS AND THE CONTROL OF INTERNATIONAL

VIOLENCE: A LEGAL AND POLITICAL ANALYSIS 11 (1982).

2 U.N. Charter pmbl.

3 Id. art. 2, para. 4; Press Release, Secretary-General, Secretary-General Says Renewal of

Effectiveness and Relevance of Security Council Must Be Cornerstone of Efforts to

Promote International Peace in Next Century, U.N. Press Release SG/SM/6997 (May 18,

1999) [hereinafter Secretary-General Press Release].

4 Michael J. Glennon, Why the Security Council Failed, FOREIGN AFF., May/June 2003,

at 16, 22 (“Since 1945, so many states have used armed force on so many occasions, in

flagrant violation of the charter, that the regime can only be said to have collapsed.”);

Press Release, United States Dep’t of State, Statement by the Honorable John Foster

Dulles Sec’y of State Before the Charter Review Subcomm. of the Senate Foreign

Relations Comm. (Jan. 18, 1954), history.state.gov/historicaldocuments/frus1952-

54v03/d47.

5 The UN has 193 member states. UN AT A GLANCE, http://www.un.org/en/

aboutun/index.shtml (last visited Feb. 17, 2014).

2014] LAW & LEGITIMACY IN USE OF FORCE DECISIONS 197

threat or use of force against the territorial integrity or political

independence of any state, or in any other manner inconsistent with the

Purposes of the United Nations,”6 history is replete with examples of

member states threatening and using force against each other.7 Similarly,

the UN Security Council, which is supposed to be the “sole source of

legitimacy on the use of force,”8 has consistently shown itself impotent

to carry out its principal responsibility.9

The United States not only is a signatory to the Charter, but also was

it a driving force behind the creation of the UN.10 Nonetheless, the

United States has acted contrary to the requirements and restrictions of

the UN Charter on several occasions. Whether this is a cause or an effect

of the Charter’s impotence is beyond the scope of this article.

In the absence of an effective UN Charter framework, the United

States has acted on certain principles in determining when the use of

armed force is appropriate. These principles are based in domestic and

international law but are not purely legal matters. Rather, the appropriate

standard used to evaluate use of force decisions is not whether they are

legal but whether they are legitimate.11 This article identifies the factors

that U.S. decision-makers consider in deciding whether the use of force

is appropriate.

6 U.N. Charter art. 2, para. 4.

7 MEREDITH REID SARKEES & FRANK WHELON WAYMAN, RESORT TO WAR: A DATA

GUIDE TO INTER-STATE, EXTRA-STATE, INTRA-STATE, AND NON-STATE WARS, 1816–2007,

at 76–77 (2010); RICHARD F. GRIMMETT, CONG. RESEARCH SERV., R42738, INSTANCES OF

USE OF UNITED STATES ARMED FORCES ABROAD, 1798–2012 (2012).

8 Secretary-General Press Release, supra note 3.

9 Monica Hakimi, To Condone or Condemn? Regional Enforcement Actions in the

Absence of Security Council Authorization, 40 VAND. J. TRANSNAT’L L. 643, 644–47

(2007); W. Michael Reisman, Article 2(4): The Use of Force in Contemporary

International Law, in The United Nations Charter and the Use of Force: Is Article 2(4)

Still Workable?, 78 AM. SOC’Y INT’L L. PROC. 68, 77 (1984).

10 Wilhelm G. Grewe & Daniel-Erasmus Khan, Drafting History, in THE CHARTER OF

THE UNITED NATIONS: A COMMENTARY 1–12 (Bruno Simma et al., eds., 2d ed. 2002);

Robert Kagan, America’s Crisis of Legitimacy, FOREIGN AFF., Mar./Apr. 2004, at 65, 79

(“Despite its role in helping to create the UN and draft the UN Charter, the United States

has never fully accepted the organization’s legitimacy or the charter’s doctrine of

sovereign equality.”).

11 John F. Troxell, Military Power and the Use of Force, in U.S. ARMY WAR COLLEGE

GUIDE TO NATIONAL SECURITY POLICY AND STRATEGY 217, 234 (J. Boone Bartholomees,

Jr., ed., 2d ed. 2006) (“[D]emocracies have the unique challenge of dealing with the

elusive and malleable concept of legitimacy . . . Today, more than ever, the key question

concerning the use of force is not whether it is lawful, but whether it is wise.”).

198 MILITARY LAW REVIEW [Vol. 219

Part II of this article briefly discusses the legal regime established by

the UN Charter to regulate the threat or use of force in international

relations and suggests critical reasons for the Charter’s failure to live up

to its promise. This will establish a baseline to evaluate when and how

far the United States strays from the Charter rules. Part III surveys and

analyzes U.S. policy and practice since 1945 regarding the use of

military force. Part IV distills the past practice and policy

pronouncements into general principles on which the United States relies

in making the decision whether to use force in international relations.

The article concludes that there is no practical legal obstacle to the

United States’ use of force, and that if the United States can justify the

use of force as legitimate, it will use force regardless of its legality.

II. The United Nations and Regulation of the Use of Force

The UN Charter contains a comprehensive regime intended to

prevent the use of force and, when prevention fails, to regulate the use of

force in international relations. In fact, prevention and regulation of the

use of force among nations were primary purposes for the creation of the

UN. The Charter’s preamble “highlight[s] some of the motivations of

the [UN’s] founders,”12 including

to save succeeding generations from the scourge of war,

which twice in our lifetime has brought untold sorrow to

mankind, . . . and for these ends to practice tolerance and

live together in peace with one another as good

neighbours, and to unite our strength to maintain

international peace and security, and to ensure, by the

acceptance of principles and the institution of methods,

that armed force shall not be used, save in the common

interest . . . .13

Similarly, the first purpose of the UN is maintenance of “international

peace and security, and to that end: to take effective collective measures

for the prevention and removal of threats to the peace, and for the

suppression of acts of aggression or other breaches of the peace.”14

12 Rüdiger Wolfrum, Preamble, in THE CHARTER OF THE UNITED NATIONS: A

COMMENTARY, supra note 10, at 37.

13 U.N. Charter pmbl.

14 Id. art. 1, para. 1.