Publisher's Synopsis
The most significant discourse about serious threats to U.S. national security in thetwenty-first century will likely concern the military capabilities and intentions ofnonstate actors, acting either for themselves, for religious elites, or as surrogates forstate sponsors. This preoccupation results not from any inordinate fear of terrorism but from a recognition of objective military and political realities. While prior to 1991only the Soviet Union possessed the capacity to inflict catastrophic military destructionon the United States, today that threat is vested in terrorist cells and religious sects thatseek to destroy the fabric of the United States through unconventional military andparamilitary means. The terrorist attacks of 11 September 2001 bear this out.During the Cold War, the major threat to the United States was clearly the fear of miscalculationby the Soviets. Today, that threat has been recharacterized in terms of deliberateaggression against the United States by nontraditional actors willing to take suicidal risksto inflict premeditated, brutal savagery on innocent civilians in a manner designed toforce not so much regime change directly as policy changes that affect regime change.Commitment to national security is only as valid as the policies and plans, military, economic, and political, that shape the areas and people from which these threats originate.The problem always has been to determine which policies, and how applied, makethe greatest contribution to countering the threat a threat now represented by socialand religious systems that foster or at least condone aggressive response to differing religiousand social values. This has never been more true than in Afghanistan and inIraq. Security, then, means more than simply protecting the land on which we live; itembraces a comprehensive understanding of the appropriate response to human aspirationsfor improved conditions of life, for equality of opportunity, and for justice andfreedom. Where these interests are thwarted for peoples or groups within a particularstate or region by armed protagonists representing narrow, restrictive interests, our responsemust be one measured by the effective institutionalization of order.This monograph first examines the relationship between law and the use of force, to includea review of the principles of legal justification, the legal criteria for self-defense, andthe policy of deterrence followed by the United States. It then examines the characteristicdifferences between the interpretive approaches taken by national and nonnational entitiesin their respective claims and counterclaims during international crises.Chapter 2, which concludes Part I, is focused on the historical aspects of the minimumworld order system, which today comprises the prohibition against the use of force byone state against another embodied in Article 2, paragraph 4, of the United NationsCharter, with the exception inherent in customary international law and in Article 51of the Charter that every state is authorized to use force in self-defense. A review of thepre-Charter system focuses on the development of the nation-state and the threads ofinternational law development leading to multilateral agreements vice solely bilateralaccords. The period following World War I, with the emergence of the League of Nations, is examined for its significance as an important source of the Charter of theUnited Nations. The structuring of the Charter is then addressed in terms of the conceptof aggression and lawful response to aggression. Chapter 2 concludes with a reviewof the law of self-defense as defined first under customary international law andthen under the UN Charter.Part II addresses lesser conflicts. Chapter 3 addresses instances where intervention isauthorized in defense of humanitarian values defined in the UN Charter. The recenthumanitarian interventions in the Congo and in Kosovo provide examples of authorizedhumanitarian initiatives. Chapter 4 examines the American intervention in Panamain 1989 as we intervened both to protect our interests under the Panama CanalTreaty and to ensure the safety of U.S. nationals present in Panama pursuant to thatagreement. Chapter 5 reviews those conflicts in which terrorist violence by individuals, groups of individuals, and state-supported terrorist elements create a right to respondthrough military force by the target state. The attacks by Iranian militants in 1979 andby al-Qa ida in 2001 spearhead the discussion of lawful response to terrorist violence.Chapter 5 argues that an effective counterterrorism strategy must ensure that enforcementmeasures are not legally constrained and that people responsible for terrorist actsare consistently held accountable by regional and international organizations. This expandingbody of international law, when coupled with increasingly effective nationallegislation, appears to be arming the victims of terrorism with some of the legal instrumentsnecessary to combat the threat. This chapter concludes that governmental responseto state-supported terror violence, where the elements of necessity andproportionality are met, is clearly supported by customary international law and theUN Charter.Part III, consisting of chapters 6 and 7, addresses examples of major conflict. These areconflicts that have involved aggression by one or more nation-states against anothernation-state, as opposed to the intervention by nations or coalitions of nations in responseto either humanitarian crises or terrorist violence. In these major conflicts, thesovereignty of a nation is normally in dispute.While not necessarily exhibiting greaterdestructiveness than lesser conflicts, the more traditional international conflicts addressedin Part III invoke the law-of-war principles reflected in the Hague Conventionsof 1899 and 1907 and the Geneva Conventions of 1949.Chapter 6 examines the coalition response to Iraqi aggression in 1990 91 during OperationDESERT STORM. It contrasts the illegality of the actions of the Iraqi regime ofSaddam Hussein with the responses of the coalition led by the United States, whichsucceeded in liberating Kuwait and returning its borders to the status quo ante. Thechapter begins with a discussion of Iraq s invasion of Kuwait and the response of theUnited Nations, leading up to the decision to use force. It then examines the conduct ofarmed hostilities by both sides during the war. The chapter concludes with observationson the role of law in the successes and failures of the postwar enforcement regimein Iraq.Chapter 7, Operation IRAQI FREEDOM, examines the Bush administration s decision toinvade Iraq in March 2003 and enforce a long series of UN Security Council resolutionsaddressing Iraqi threats to international peace and security. This chapter examinesthese Iraqi violations in the context of international law principles justifyingintervention.More significantly, it examines the right of states to enforce mandates issuedby the Security Council and to redress violations of its edicts when the Council, asa body, refuses to do so.Part IV addresses U.S. policy for peace operations. The United States has voted to supportthe United Nations and NATO in providing multilateral forces to restore internationalpeace and security. The United Nations was involved in both Chapter VI(peacekeeping) and Chapter VII (peace enforcement) operations in the 1990s, withlimited success. Chapter 8, Development of Criteria for Peace Operations, looks atthe limitations inherent in UN leadership of such operations, citing the UN failures inSomalia and Bosnia. The success of NATO as the leadership element in Kosovo in 1998was significant and may foreshadow a new era for the role of regional organizations(discussed in chapter 9) under Chapter VIII of the UN Charter.Part V concerns itself with special areas of legal concern that warrant considerationwith regard to legal justification for military response to international coercion. Thispart, Challenges for the Twenty-first Century, addresses the right of states to respondto threats to, and attacks on, critical infrastructure. Chapter 10 examines what rights, if any, in self-defense are triggered by attacks on infrastructure systems critical to our nationalpolitical and economic integrity. Chapter 11," "concerning computer network attack, takes this one step farther and examines the authority that international lawprovides to nations wishing to protect these systems aggressively, through preemptivedefense. Chapter 11 carefully analyzes the right to target computer networks of nationsthat have expressed clear indicators of attack. Finally, recommendations are offered toenhance the ability of the international legal system to support and embrace, stronglyand legally, computer-generated data-warfare responses to such aggression.This Newport Paper examines representative instances where force has recently beenused in international relations, the circumstances under which it was used, the instructiveinternational policy and legal constructs that can be applied, and the relationshipof these policies to the minimum world order system established in Articles 2(4) and51 of the United Nations Charter. That system, defined more fully in the pages that follow, provides a complementary structure that prohibits and counters the unlawful, aggressiveuse of force, on the one hand, and permits national and collective self-defense, on the other, in a manner designed to meet both the traditional threats representedduring the Cold War and the nontraditional threats we have seen recently and can expectin the future."
