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

Author:Major Donald L. Potts
Pages:196-246
 
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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. TRANSNATL 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. SOCY INTL 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.

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