What Future for the UN Charter System of War Prevention? Author(s): Richard A.

Falk Source: The American Journal of International Law, Vol. 97, No. 3 (Jul., 2003), pp. 590-598 Published by: American Society of International Law Stable URL: http://www.jstor.org/stable/3109844 . Accessed: 14/05/2013 04:50
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The Bush administration is right in asking that the traditional interpretation of international law be reexamined in the face of the new dangers of catastrophic terrorism, but is wrong in its proposed solution to the problem. In my view, the national interest of the United States and the general interest of the international community can best be served by a modest reinterpretation of the UN Charter along the following lines: (1) Armed force may now be used by a UN member even without Security Council approvalto destroyterroristgroups operating on the territoryof other memberswhen those other members fail to discharge their international law obligations to suppress them. (2) Armed force may also be used to prevent a UN member from transferringweapons of mass destruction to terrorist groups. (3) Article 51 continues to limit self-defense to cases of an actual or imminent armed attack in accordance with the Carolinedoctrine,but self-defense can be extended to permit a state to rescue its citizens (and others) faced with a clear and present threat to their security. intervention"permits militaryaction by the United Nations (4) A right of "humanitarian or regional organizationsto prevent genocide or similarmassivehuman rights violations. The United States needs to claim no more from international law than this. The rest of the world should concede no less.
RICHARD N. GARDNER*

WHAT FUTURE FOR THE UN CHARTERSYSTEMOF WAR PREVENTION?

President George W. Bush historically challenged the United Nations Security Council when he uttered some memorable words in the course of his September 12, 2002, speech to the General Assembly: "Willthe UN serve the purpose of its founding, or will it be irrelevant?"'In the aftermath of the Iraq war there are at least two answers to this question. The answer of the U.S. government would be to suggest that the United Nations turned out to be irrelevant due to its failure to endorse recourse to war against the Iraq of Saddam Hussein. The answer of those who opposed the war is that the UN Security Council served the purpose of its founding by its refusal to endorse recourse to a war that could not be persuasively reconciled with the UN Charter and international law. This difference of assessment is not just factual, whether Iraq was a threat and whether the inspection process was succeeding at a reasonable pace; it was also conceptual, even jurisprudential. The resolution of this latter debate is likely to shape the future role of the United Nations, as well as influence the attitude of the most powerful sovereign state as to the relationship between international law generally and the use of force as an instrument of foreign policy. These underlying concerns antedate the recent preoccupation with Iraq, and were vigorously debated during the Cold War era, especiallyduring the latter stages of the Vietnam War.2 But the present context of the debate regarding the interplay between sovereign discretion on matters of force and UN authoritywas framed in the late 1990s around the topic of humanitarian intervention, especially in relation to the Kosovowar.The burning issue in the Kosovo
*Professor of Law and International Organization, Columbia University. Address to the United Nations General Assembly in NewYork City, 38 WEEKLYCOMP. PRES. DOC. 1529 (Sept. 16, 2002). 2For representative contributions see THE VIETNAM WARAND INTERNATIONAL LAW(Richard A. Falk ed., 4 vols., 1968, 1969, 1972, 1976).

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setting waswhether "acoalition of the willing"acting under the umbrella of NATO was legally entitled to act as a residual option, given the perceived UN Security Council unwillingness to mandate a use of force despite the urgent humanitarian dangers facing the Albanian Kosovars. In that instance, a formal mandate was sought and provided by NATO, but without what seemed to be textually required by Article 53(1) of the UN Charter, that is, lacking some expression of explicit authorization by the UN Security Council. Legal apologists for the initiative insisted that such authorization could be derived from prior UN Security Council resolutions, as well as from the willingness of the United Nations to manage the post-conflict civil reconstruction of Kosovo that amounted to a tacit assent, providing the undertaking with a retroactivecertificationof legality.To similareffect were arguments suggesting that the failure of the SecurityCouncil to adopt a resolution of censure introduced by those members opposed to the Kosovo war amounted to an implied acknowledgment of legality. But the tension with the Charter rules on the use of force was so clear that these efforts at legalization seemed ineffectual, and a far preferable approach was adopted by the Independent International Commission on Kosovo, which concluded that the intervention in Kosovo was "illegal, but legitimate."3The troublesome elasticity of this doctrine was conditioned in two ways,first by suggesting the need for the intervening side to bear a heavy burden of persuasion as to the necessity of intervention to avoid an impending or ongoing humanitarian catastrophe. Second, there was a checklist of duties that need to be fulfilled by the intervenors to achieve legitimacy, emphasizing the protection of the civilian population, adherence to the international laws of war, and a convincing focus on humanitarian goals, as distinct from economic and strategic aims. In Kosovo the moral and political case for intervention seemed strong: a vulnerable and long abused majoritypopulation facing an imminent prospect of ethnic cleansing by Serb rulers, a scenario for effective intervention with minimal risks of unforeseen negative effects or extensive collateral damage, and the absence of significant nonhumanitarian motivations on the intervening side. As such, the foundation for a principled departure under exceptional circumstances from a strict rendering of Charter rules on the use of force seemed present. The legality/legitimacy gap, however, was recognized to be unhealthy, eroding the authority of international law over time, and the Commission recommended stronglythat it be closed at the earliest possible time by UN initiative. Its report urged, for example, that the permanent members of the Security Council consider agreeing not to cast adverse votes in the setting of impending humanitarian catastrophes.4The adoption of such a practice would have enabled the Kosovo intervention to be approved by the Security Council even in the face of Russian and Chinese opposition, which would have been registered in the debate and by way of abstentions. More ambitiously,the Commission proposed a three-step process designed to acknowledge within the United Nations Charter system the enforcement role of the organization in contexts of severe human rights violations. The first step consists of a framework of principles designed to limit claims of humanitarian intervention to a narrow set of circumstances, and to assure that the dynamics of implementation adhere to international humanitarian law and promote the well-being of the people being protected. The second step is to draft a resolution for adoption by the General Assembly in the form of a Declaration on the Right and Responsibility of Humanitarian Intervention that seeks to reconcile respect for sovereign
3INDEPENDENTINTERNATIONAL REPORT: THEKOSOVO CONFLICT, COMMISSION ONKOSOVO, INTERNATIONALRESPONSE, I was a member of the commission. LEARNED 185-98 (2002) [hereinafter KOSOVO REPORT]; LESSONS 4 Such a practice could be regarded as an informal and substantive extension of the established practice of treating abstentions by permanent members as not blocking decisions by the Security Council despite the wording of Article 27(3) requiring "the concurring votes of the permanent members." Such a practice shows the degree to which the Security Council was able to contrive waysto overcome a paralysisthat would have resulted from an interpretative approach based on textual fidelity, and it is impressive that this approach was established in the midst of the Cold War.

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rights, the duty to implement human rights, and the responsibility to prevent humanitarian catastrophes. The third step would be to amend the Charter to incorporate these changes as they pertain to the role and responsibility of the UN Security Council, and other multilateral frameworks and coalitions that undertake humanitarian interventions.5 It should be noted that no progress towardclosing this legitimacy/legality gap by formal or informal action within the United Nations can be anticipated at this time. There exists substantial opposition, especially among Asian countries, to any expansion of the interventionary mandate of the United Nations and other political actors in the setting of human rights. This opposition has deepened since Kosovo because of the controversial uses of force claimed by the United States in its antiterrorism campaign that have combined security and human rights arguments. Iraq tested the UN Charter system in a way complementary to that associated with the Kosovo controversy. The Iraq testwas associated with the impact of the September 11 attacks and the challenge of mega-terrorism.6The initial American military response to the Qaeda attack and continuing threat was directed at Afghanistan, a convenient territorial target both because it seemed to be the nerve center of the terrorist organization and a country ruled by the Taliban regime that allowed Al Qaeda to operate extensive terroristtraining bases within its territory,and because it lacked some crucial attributes needed for full membership in international society, including widespread diplomatic recognition. The reasonableness of waging war to supplant the Taliban regime and destroy the Qaeda base of operations in Afghanistan was widely accepted by the entire spectrum of countries active in world politics, although there was only the most minimal effort by the U.S. government to demonstrate that it was acting within the UN framework.The Qaeda responsibilityfor September 11 was amply demonstrated, the prospect of future attacks seemed great and possibly imminent, and the American capability to win the war at a proportional cost seemed convincing. There was no significant international opposition to the American initiation and conduct of the Afghanistan war, and there were varying levels of support from all of America's traditional allies. International law was stretched in these novel circumstances to provide a major state with the practical option of responding with force to one important source of mega-terroristwarfare. But when the Iraqphase of the September 11 response beyond Afghanistan began to be discussed by American leaders, most reactions around the world were highly critical, generating a worldwide peace movement dedicated to avoiding the war and a varietyof efforts by governments to urge an alternative to war. The main Americanjustification for proceeding immediately against Iraq was articulated in the form of a claimed right of preemptive warfare, abstractly explained as necessary conduct in view of the alleged interface between weaponry of mass destruction and the extremist tactics of the mega-terrorists.7It was argued that itwas unacceptable in these circumstances for the United States to wait to be attacked, and that preemptive warfarewas essential to uphold the security of the "civilized" portion of the world. In his talk at the United Nations, Bush said, "Wecannot stand by and do nothing while danItwas this claim that was essentiallyrejected by the UN SecurityCouncil's refusal gers gather."8 to go along with U.S./UKdemands for a direct endorsement of recourse to war.The precise American contention wasmore narrowlyand multiplyframed in relation to the failures of Iraq to cooperate fully with the UN inspectors, the years of nonimplementation of earlier Security Council resolutions imposing disarmament obligations on Iraq after the Gulf War, and,
These three steps are outlined in Kosovo REPORT,supra note 3, at 187. A discussion of this challenge and the U.S. response is the theme of my book, RICHARD A. FALK, THEGREAT TERROR WAR(2003). 7 Initially fully depicted in George W. Bush, Commencement Address at the United States MilitaryAcademy in West Point, NewYork (June 1, 2002), 38 WEEKLYCOMP. PRES. Doc. 944 (June 10, 2002); given a more enduring and authoritative status by the emphasis in the official White House document, THENATIONAL SECURITY STRATEGY OF THEUNITED STATES OFAMERICA 13-16 (Sept. 17, 2002), availableat <http://www.whitehouse.gov/nsc/nss.pdf>. 8 See supranote 1.
5 6

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above all, by the supposedly heightened threat posed by Iraq's alleged arsenal of weapons of mass destruction.9 The Iraq war was initiated, and ended militarilywith rapid American battlefield victories. President Bush so declared, "In the battle of Iraq, the United States and our allies have prevailed. And now our coalition is engaged in securing and reconstructing that country."'1 The the as "a battle" rather than "a as war,"submilitaryoperations president carefully described suming the attackon Iraqwithin the wider, ongoing waragainstglobal terrorism,and implying that the undertaking should be seen as an element in the antiterrorism campaign launched in response to the September 11 attacks.Again, as in relation to Kosovo,the UN SecurityCouncil refrained from censuring the United States and its allies, and the United Nations seems fully willing to play whatever part is assigned to it during the current period of military occupation and political, economic, and social reconstruction, so far under exclusive U.S./UK control. Such acquiescence is particularlyimpressive given the failure of the victorious coalition in the Iraq war to find any evidence of weapons of mass destruction, or to be attacked by such weaponry despite launching a war designed to destroy the regime of Saddam Hussein. It seems reasonable to conclude that either such weaponry does not exist, or if it does exist, then deterrence was fully able to assure against a future use. That is, if such weapons were not used by Iraq to defend the survivalof the regime, then it is highly unlikely that they would ever have been used in circumstances where an annihilating retaliation could be anticipated. If Iraq refrained when it had nothing to lose, why would it use such weaponry when the inevitable response would be the assured destruction of country and regime? How should such a pattern of circumvention of Charter rules combined with the reluctance of the UN Security Council to seek censure for such violations be construed from the perspective of the future of international law?There are several overlapping modes of interpretation, each of which illuminates the issue to some extent, but none seems to provide a satisfactory account from the perspective of international law: -The United States as the dominant state in a unipolar world order enjoys an exemption from legal accountability with respect to uses of force irreconcilable with the UN Charter system; other states, in contrast, would be generally held to account unless directly protected under the United States exemption; -The pattern of behavior confirms a skeptical trend that suggests the Charter system no longer accords, or never did accord, with the realities of world politics, and is not authoritative in relation to the behavior of states;l1 - The American pattern of behavior is in some tension with the Charter system, but it is a creative tension that suggests respect for the underlying values of the world community, viewing legality as a matter of degree, not either/or, and as requiring continuing adjustment to changing circumstances; as such, the claims of preemption in relation to mega-terrorism provide a reasonable doctrinal explanation for an expanded right of self-defense; -Acknowledging the behavioral pressures of the world, the possibility exists that contested uses of force under the Charter are "illegal,yet illegitimate" either by reference to the rationale for initiating action without UN Security Council approval or on the basis of the beneficial impact of the intervention.'2 From this perspective, the failure to find weapons of mass destruction does not definitively undermine the claim that
9 The most important Security Council resolutions were 678 (1990), 687 (1991), and, of course, 1441 (2002). 10 in Iraq,N.Y. TIMES, on theEnd of MajorCombat Bush's Remarks May 2, 2003, at A16. Transcriptof President CouncilFailed,FOREIGN This position is most clearly articulated by MichaelJ. Glennon, Whythe Security AFF., OFLAW, PREROGMay/June 2003,16-35; the overall argument is more fully developed in Glennon's book, LIMITS INTERNA& ROBERTJ. ATIVES OF BECK, C. AREND INTERVENTIONISMAFTERKOSOVO POWER: (2001 ); seealsoANTHONY
TIONALLAW AND THE USE OF FORCE:BEYONDTHE UN CHARTERPARADIGM(1993); A. MARKWEISBURD, USE OF OF STATESSINCEWORLDWAR II (1997). FORCE:THE PRACTICE
12

Mar. 18, 2003, at A33. SeeAnne-Marie Slaughter, GoodReasonsfor GoingAroundthe U.N., N.Y. TIMES,

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the intervention is "legitimate."It still could be judged as legitimate due to a series of effects: the emancipation of the Iraqi people from an oppressive regime, reinforced by the overwhelming evidence that the Baghdad rulers were guilty of systematic, widespread, and massivecrimes against humanity, and an occupation that prepares the Iraqi people for political democracy and economic success.13 At this stage, it is impossible to predict how the Iraq war will impact upon the Charter system with respect to the international regulation of force. It will depend on how principal states, especially the United States, treat the issue. International law, in this crucial sense, is neither more nor less than what the powerful actors in the system, and to a lesser extent the global community of international jurists, say it is. International law in the area of the use of force cannot by itself induce consistent compliance because of sovereignty-orientedpolitical attitudes combined with the gross disparities in power that prevent the logic of reciprocity and the benefits of mutuality from operating with respect to the security agenda of states. The "realist" school has dominated the foreign policy process of major countries throughout the existence of the modern state system, having been challenged only marginallyby a Wilsonian approach that is more reliant on legalism and moralism.14 To the extent that restraintwith to use is the of force advocated it is based on cost-benefit assessments, realists, respect by virtue of of over-extension that has the and the avoidance including diplomatic prudence been blamed throughout history for the decline of major states.15 There are grounds for supposing that the approach of the Bush administration may not fit within the realist paradigm, but rather represents a militant version of Wilsonian idealism.16President Bush has consistently described the war against terrorism in terms of good and evil, which works even against constraints based on calculations of self-interest and prudence.17To the extent that such an orientation shapes the near future of American conduct, the UN Charter system will be disregarded except possibly in those circumstances where the Security Council would support an American claim to use force.'8
II. THE IRAQ WAR AND THE FUTURE OF THE CHARTER SYSTEM

Against thejurisprudential background depicted in the previous section, an interpretation of the Iraq precedent is necessarily tentative. It depends, in the first analysis, on whether the American battlefield victory in the Iraq war can be converted into a political victory, which will be measured in Iraq by such factors as stability,democratization, recovery of Iraqi sovereignty, and economic development. If the American occupation is viewed as successful, then the intervention is likely to be treated as "legitimate,"despite being generally regarded as "illegal."Such a perception will be viewed by some as adding a needed measure of flexibility
13SeeCharles Krauthammer, Iraq:A MoralReckoning, L.A. TIMES, May 16, 2003, at A29; Thomas L. Friedman, Boredwith Baghdad-Already, N.Y. TIMES, May 18, 2003, ?4, at 13. 14For the view thatAmerican moralism and legalism has had a detrimental impact on U.S. foreign policy during the first half of the twentieth century, see GEORGEF. KENNAN,AMERICANDIPLOMACY 1900-1950 (1951); seealso HENRYA. KISSINGER, DIPLOMACY 218-45, 762-835 (1994). For a more general interpretation of the Wilsonian RUSSELL component as a more widely conceived aspect of the overall American foreign policy tradition, see WALTER

PROVIDENCE: AMERICAN FOREIGNPOLICYANDHOW IT CHANGEDTHE WORLD 132-73 (2001). MEAD, SPECIAL 15PAUL THERISE FALL AND OFGREAT POWERS: ECONOMIC AND CHANGE MILITARYCONFLICT 1500-2000 KENNEDY,

(1987). 16For an WBush: The W' Stands for Woodrow, WALL argument along these lines, see Max Boot, George ST.J.,Jul. 1, 2002, at A14. 17Aside from identifying specific states as "the axis of evil" in the global setting of the war against terrorism, in his West Point speech the president includes some strongly moralistic rhetoric of a visionary quality, quite inimical to the realist tradition. The following excerpt is indicative of the tone and message: "Weare in a conflict between good and evil, and America will call evil by its name. By confronting evil and lawlessregimes, we do not create a problem, we reveal a problem. And we will lead the world in opposing it." Seesupranote 1. 18 SeeRichard Perle, ThankGodfortheDeathof theUN. Its Abject FailureGaveUs OnlyAnarchy,TheWorld NeedsOrder, Mar. 21, 2003, at 26. GUARDIAN,

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in the application of the Charter system in a world where the possible interplay of mega-terrorist tactics and weaponry of mass destruction validates recourse to anticipatoryself-defense, but it will be dismissed by others as an opportunistic repudiation of legal restraints by the world's sole superpower. There are two main conceptual explanations of this likely divergence of opinion. The first relates to issues of factual plausibility.The doctrine of preemption, as such, is less troublesome than its unilateral application in circumstances where the burden of persuasion as to the imminence and severityof the threat is not sustained. The diplomatic repudiation of the United States in the Security Council resulted mainly from the factual unpersuasiveness of the U.S. arguments about the threats associated with Iraqi retention of weaponry of mass destruction and the claims of linkage between the Baghdad regime and the Qaeda network, and the alleged failures of deterrence and containment. There were no doubts about the brutality of Saddam Hussein's rule, but there was little support for recourse to war on such grounds. This skepticism has been heightened by the failure so far to uncover weaponry of mass destruction in the aftermath of the war, despite total access to suspicious sites and the cooperation of Iraqi scientists and weapons personnel. The second ground of divergence relates to arguments of retroactivejustification. Here the focus is on whether a war opposed because its side effects seemed potentially dangerous, and its advance rationale was not convincing enough tojustify stretching the Charter system of restraint, could bejustified after the fact. Thejustifications combine the quick militaryvictory with relativelylow casualtyfigures, as reinforced by the documentation of Saddam Hussein's criminality as an Iraqi leader. Such an argument would seem more convincing if the American-led coalition forces had been more clearly welcomed as "liberators"rather than viewed as "occupiers,"and if the post-combat American presence in Iraq was less marred by violent incidents of resistance and further American casualties. It remains too early to passjudgment. If the occupation is relatively short, and is generally perceived to benefit the Iraqi people and not the American occupiers, arguments based on retroactive justification are likely to gain support, and the Iraqiprecedent would be viewed not so much as destructiveof the Charter system, as an extension of it based on the emerging enlargement of the role of the international community to protect societies vulnerable to abusive governments.19 Of course, the issue of process is important, as well as the substantive outcome. The Iraq war represented a circumvention of the collective procedures of the Charter system with respect to uses of force in contexts not covered by the Article 51 conception of self-defense. To some extent, a favorable view of the effects of such a use of force weakens objections to unilateralism.Adopting a constructivistviewof international law, much depends on the future conduct and attitudes of the United States government. Constructivism is a view of political and legal realitythat places decisive emphasis on dominant mental perceptions about a given set of conditions, whether or not such perceptions are accurate as assessed from other standpoints.20Will the U.S. government in the future generally exhibit respect for the role of the Security Council or will it feel vindicated by its decision to act unilaterallyin conjunction with cooperative allies, and continue to rely on such a model? If the latter interpretation shapes future American foreign policy, then the Charter system is marginalized, at least with respect to the United States. Can the Charter system work without adherence to its procedures and restraining rules by the dominant state in the world? The constructivist answer is most clarifying. To the extent that other states continue to take the Charter system as authoritative it will certainly heavily
19 ON INTERVENCOMMISSION For influential comprehensive presentation along these lines, see INTERNATIONAL TO PROTECT (2001). TION AND STATESOVEREIGNTY, REPORT:THE RESPONSIBILITY
20 Constructivism as an academic

Wendt in his SOCIALTHEORYOF INTERNATIONAL POLITICS(1999).

approach to the study of international relations is best explained by Alexander

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influence international responses to challenged uses of force by states other than the United States, and will affect global attitudes towardAmerican leadership. There will be complaints about the degree to which geopolitical realities trump international law restraints and about double standards,but these complaints have been made since the United Nations came into being, and arguablywere embedded in the Charterby grantinga veto to the permanent members. The approach taken by the Security Council in its Resolution 1483 is indicative of a tension between acquiescence and opposition to the U.S./UKrecourse to war against Iraq. The resolution divides responsibilityand authority between the occupying powers and the United Nations, granting the United States/United Kingdom predominant control over the most vital concerns of security, economic and political reconstruction, and governance. At the same time, the resolution stops far short of retroactivelyendorsing recourse to force by the United States/United Kingdom under the factual circumstances that existed. It dodges the issue of legality/legitimacy by avoiding any formal pronouncement, while accepting as a legitimate given the realities of the outcome of the war. As a result, a high degree of ambiguity surrounds the Iraqwaras precedent. Undoubtedly, this ambiguitywill be reduced, and possibly eliminated, by consistent subsequent UN Security Council practice in future peace and security contexts.
III. THE CHARTER ANDHUMANITARIAN INTERVENTION SYSTEM, MEGA-TERRORISM,

In the 1990s there was a definite trend toward accepting a more interventionary role for the United Nations with respect to the prevention of ethnic cleansing and genocide. The SecurityCouncil, as supported by the last three secretaries-general,reflecting a greater prominence for the international protection of human rights and less anxiety about risks of escalation than were operative during the Cold War, narrowed the degree of deference owed to the territorialsupremacy of sovereign governments. As such, the domestic jurisdiction exclusion of UN intervention expressed in Article 2(7) was definitely under challenge from the widespread grassroots and governmental advocacyof humanitarian intervention in the years following the Cold War. Although the pattern of claims and practice remained contested, being resisted especially by China and other Asian countries, there was considerable support for humanitarian intervention. The UN was more insistently attacked for doing too little, as in Bosnia and Rwanda, than in doing too much.21 A variant on this debate is connected with the instances of uses of force under American leadership in the post-September 11 world. In both Afghanistan and Iraq recourse to force rested on defensive claims against the new threats of mega-terrorism, but the effect in both instances was to liberate captive populations from extremely oppressive regimes, establishing patterns of governance and potential self-determination that seemed virtuallyimpossible for the oppressed citizenry to achieve by normal modes of resistance. Even though the humanitarian motivations of the United States are suspect in both instances, due to a past record of collaboration with these regimes while their abusive conduct was at its worst, the effect of the interventions was emancipatory, and the declared intention of the occupation is to support human rightsand democratization.Undoubtedly,such forcibleliberationswould not have taken place without the pressures mounted and the climate created by the September 11 attacks. is associatedwith criminalforms of governmenNevertheless, to the extent that mega-terrorism tal authority, would it not be reasonable to construe uses of force that accomplished "regime change" as part of an enlarged doctrine of humanitarian intervention?
21For useful overviews of this INTERVENTION: THE UNITED NATIONS trend, see SEAND. MURPHY,HUMANITARIAN INAN EVOLVING WORLD (1996); NICHOLASJ.WHEELER, SAVING STRANGERS: HUMANITARIAN ININTERINTERVENTION NATIONAL SOCIETY(2000).

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I think not for some obvious reasons. Recourse to war is too serious a matter to allow decisions about it to proceed on the basis of rationales that are not fully articulated and debated in advance. For this reason also, prudential considerations alone would rule out humanitarian intervention in all but the most extreme cases, and even in most of these. Who would be so crazy as to advocate humanitarian intervention on behalf of the Chechens, Tibetans, Kashmiris?Of course, there are many options open to the international community and its member states not involving the use of force that could range from expressions of disapproval to the imposition of comprehensive sanctions. The case for humanitarian intervention relying on force must be treated as a principled, and even then, a rare exception to the generalized prohibition of the Charter with respect to the use of force embodied in Article 2 (4) .22If the Security Council does not mandate the intervention, and a coalition of the willing proceeds, the undertaking could still be substantiallyvindicated, as in Kosovo, if some sort of collective process was involved and the facts confirmed the imminence of a humanitarian emergency. The Kosovo Commission tackled this issue of principled humanitarian intervention, as have scholars, seeking to provide guidance that preserves the balance between the prohibition on uses of force and the moral/political imperatives to mitigate impending or ongoing humanitarian catastrophes.23 But a pro-interventionargument should not be treated as acceptable in circumstanceswhere the use of force is associated with alleged security threats posed by the menace of mega-terrorism, but thejustification tendered after the fact emphasizes humanitarian intervention. In Afghanistan the security argument was sufficiently convincing as to make the humanitarian benefits of the war a political and moral bonus, but without bearing on the legal case for recourse to force, which was already convincing on the defensive grounds claimed. In Iraq, by contrast, the security and related anti-Qaeda arguments were unconvincing, and the claimed humanitarian benefits resulting from the warwere emphasized by American officials as a way to circumvent the illegality of the American-led recourse to force. Such post hoc efforts at legalizationshould not be accorded much respect, especiallyin the context of a major war where prior efforts to obtain a mandate for the use of force were not endorsed by the Security Council even in the face of major diplomatic pressures mounted by Washington in the several months prior to the Iraq war.24
IV. A CONSTRUCTIVIST FUTURE FOR THE UN CHARTER SYSTEM

The position favored here is that the United States would be best served by adhering to This system is flexible enough to accommodate new and genuine the UN Charter system.25 as well as changing values, including a shifting balance between sovereign securityimperatives In both settings of humanitarian intervention world and rights community responsibilities.26
UNIVERSAL HUMAN RIGHTS 2 For awell-crafted narrowdoctrine of humanitarian intervention, seeJACKDONNELLY, INTHEORYAND 242-60 (2d ed., 2003). For a generally skeptical set of reflections about claims of humaniPRACTICE ANDPHILOSOPHICAL ISSUES MORAL tarian intervention, see HUMANITARIAN INTERVENTION: (AleksandarJokic ed., AND LEGAL, ETHICAL, INTERVENTION: 2003); for a somewhat more optimistic set of accounts, see HUMANITARIAN DILEMMAS POLITICAL (J. L. Holzgrefe & Robert O. Keohane eds., 2003). 23 note 3; RESPONSIBILITYTO PROTECT, REPORT, For important efforts, see KOSOVO supra note 19, at 53-57; Lori ININTERNAL in ENFORCING RESTRAINT: Fisler Damrosch, ConcludingRemarks, CONFLICTS INTERVENTION COLLECTlVE to GuideUrgent 348-67 (Damrosch ed., 1993); and especially, Damrosch, TheInevitability Principles ofSelective Response? 405-19 (Albrecht Schnabel INTERVENTION AND THE in KOSOVO CHALLENGE HUMANITARIAN OF InternationalAction, & Ramesh Thakur eds., 2001). 24 It may be worth recalling the vigorous U.S. government objections to the Vietnamese intervention in Cambodia, and subsequent occupation, that disrupted the Khmer Rouge genocide. The American position repudiated the humanitarian considerations, emphasizingVietnamese violation of Cambodian sovereignty and urging immediate withdrawal despite the risk of regenerating a genocidal regime. 25 OF POWER A more generalized view of the benefits arisingfrom a law-orientedapproach iswell explained in RULE ORRULE OFLAW? (Nicole Deller, Arjun Makhijani, &John Burroughs eds., 2003). 26SeeOscar Schachter, In DefenseofInternationalRules on the Use ofForce,53 U. CHI.L. REV.113 (1986).

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and responses against mega-terrorism the Charter system can be legallyvindicated in appropriatefactual circumstances. From this perspective recourse to war against Iraq should not have been undertaken without a priormandate from the Security Council, and rather than "afailure" of the United Nations, the withholding of such a mandate represented a responsible exercise of constituThe facts did not support the case for preemption, as there was neither immitional restraint.27 As a result, the Iraqwar seemed, at best, to qualify as an instance of prevennencenor necessity. tive war, but there are strong legal, moral, and political reasons to deny both legality and legitimacy to such a use of force. Preventive war is not an acceptable exception to the Charter system, and no effort was made by the U.S. government to claim such a right, although the highly abstract and vague phrasing of the preemptive war doctrine in the National Security would be more accurately formulated as a "preventive Strategy of the UnitedStatesof America war doctrine." But even within this highly dubious doctrinal setting, to be at all convincing the evidence would at least have to demonstrate a credible future Iraqi threat that could not be reliably deterred, and this was never done. Mylegal constructivistposition is that the United States (and the world) would benefit from a self-imposed discipline of adherence to the UN Charter system governing the use of force. Such a voluntary discipline would overcome the absence of geopolitical limits associated with countervailing power in a unipolar world.28 It would also work against tendencies of the United States and others to rely too much on militarysuperiority, which encourages the formation of defensive alliances, and possibly arms races. International law is flexible enough to allow the United States, and other countries, to meet novel security needs. Beyond this, neither American values nor strategic goals should be construed to validate uses of force that cannot win support in the UN Security Council. If one considers the course of American foreign policy over the course of the last half century, adherence to the Charter system with respect to the use of force would have avoided the worst policy failures, including that of Vietnam. Deviations from the Charter system of prohibitions on the use of force can be credited with no clear successes. It is not the Charter system that is in disarray, providing sensible grounds for declaring the project of regulating recourse to war by states a failed experiment that should now be abandoned. It is rather leading states, and above all the United States, that need to be persuaded that their interests are served and their values realized by a more diligent pursuit of a law-oriented foreign policy. The Chartersystem is not a legal prison that presents states with the dilemma of adherence (and defeat) and violation or disregard (and victory). Rather adherence is the best policy, if understood against a jurisprudential background that is neither slavishlylegalistic nor cynically nihilistic. The law can be stretched as new necessities arise, but the stretching must to the extent possible be in accord with procedures and norms contained in the Charter system, with a factually and doctrinally persuasive explanation of why a particular instance of stretching isjustified. Such positive constructivist attitudes will renew confidence in the Charter system. It is also true that constructivism can work negatively, and so if the disregard of the legal framework, public opposition, and governmental resistance present in the Iraq case is repeated in the future, then indeed the Charter system will be in a shambles before much longer.
A. FALK* RICHARD

27

OF PARADISE AND POWER:AMERICA AND EUROPEIN THE NEW WORLDORDER (2003).

28 Myassertion is in direct opposition

The reference to failure is to challenge the central conclusion of Glennon's analysis, supra note 11. to the inferences drawn by Kagan in his influential book. SeeROBERT KAGAN,

Of the Board of Editors.

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