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July
2, 2003
After Iraq is There
a Future for the Charter System?
War Prevention
and the UN
By RICHARD FALK
President George W. Bush historically challenged
the United Nation Security Council when he uttered some memorable
words in the course of his September 12, 2002 speech to the General
Assembly: "Will the UN serve the purpose of its founding,
or will it be irrelevant?" (1) In the aftermath of the Iraq
War there are at least two answers to this question. The answer
of the US Government would be to suggest that the UN 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 UNSC 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, and were vigorously debated during the
cold war era, especially during the latter stages of the Vietnam
War. (2) But the present context of the debate as to the interplay
between sovereign discretion on matters of force and UN authority
was framed in the late 1990s around the topic of humanitarian
intervention, especially in relation to the Kosovo War. The burning
issue in the Kosovo setting was whether "a coalition of
the willing" acting under the umbrella of NATO was legally
entitled to act as a residual option given the perceived UNSC
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 UN to manage the post-conflict civil reconstruction of
Kosovo that amounted to a tacit assent, providing the undertaking
with a retroactive certification of legality. To similar effect
were arguments suggesting that the failure of the Security Council
to adopt a resolution of censure introduced by those members
opposed to the Kosovo War amounted to an implied acknowledgement
of legality.
But the tension with the Charter rules
on the use of force was so clear that these efforts at legalization
seemed lame, 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."
(3) The troublesome elasticity of this doctrine was conditioned
in two ways: 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; and
by 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 majority
population 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 non-humanitarian 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
strongly that 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.
(4) The 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 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 toward closing 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 anti-terrorism 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 test was associated with the impact of the September
11 attacks and the challenge of mega-terrorism. (6) The initial
American military response to the al Qaeda attack and continuing
threat was directed at Afghanistan, a convenient territorial
target because it both 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 terrorist training bases within
its territory and lacked some crucial attributes needed for full
membership in international society, including the failure to
obtain widespread diplomatic recognition. The reasonableness
of waging war to supplant the Taliban regime and destroy the
al 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
al Qaeda responsibility for 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 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-terrorist warfare.
But when the Iraq phase 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 variety of efforts by governments to urge an alternative
to war. The main American justification 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. (7) It was
argued that it was unacceptable in these circumstances for the
United States to wait to be attacked, and that preemptive warfare
was essential to uphold the security of the "civilized"
portion of the world. Bush in his talk at the United Nations
said, "We cannot stand by and do nothing while dangers gather."
(8) It was this claim that was essentially rejected by the UN
Security Council refusal to go along with US/UK demands for a
direct endorsement of an enforcement. The precise American contention
was more narrowly and multiply framed in relation to the failures
of Iraq to cooperate fully with the UN inspectors, the years
of non-implementation of earlier Security Council resolutions
imposing disarmament obligations on Iraq after the Gulf War,
and, 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
militarily with 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." (10) The president
carefully described the military operations as "a battle"
rather than as "a war," subsuming the attack on Iraq
within the wider, ongoing war against global terrorism, and implying
that the undertaking should be seen as an element in the anti-terrorism
campaign launched in response to the September 11 attacks. Again,
as in relation to Kosovo, the UNSC refrained from censuring the
United States and its allies, and the UN 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./U.K>. control. Such acquiescence
is particularly impressive 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 survival of 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 assured 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 UNSC 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 US 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; (11)
-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 legitimate" either
by reference to the rationale for initiating action without UNSC
approval or on the basis of the beneficial impact of the intervention.
(12) From this perspective, the failure to find weapons of mass
destruction does not definitively undermine the claim that 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 massive Crimes 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 treat the issue, especially the United States.
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-oriented
political attitudes combined with the gross disparities in power
that prevent the logic of reciprocity and the benefits of mutuality
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, being only marginally challenged by a Wilsonian approach
that is more reliant on legalism and moralism. (13a) To the extent
that restraint with respect to the use of force is advocated
by realists, it is based on cost-benefit assessments, including
the diplomatic virtue of prudence and the avoidance of over-extension
that has been blamed throughout history for the decline of major
states. (14)
There are grounds for supposing that
the approach of the Bush administration may not fit within the
realist paradigm, but rather represent a militant version of
Wilsonian idealism. (14a) President Bush has consistently described
the war against terrorism in terms of good and evil, which works
against even constraints based on calculations of self-interest
and prudence. (15) To 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.
(16)
The Iraq War and the
Future of the Charter System
Against the jurisprudential 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
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 anticipatory self-defense
and 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 severity
of the threat is not sustained. The diplomatic repudiation of
the United States in the Security Council resulted mainly from
the factual unpersuasiveness of the US arguments about the threats
associated with Iraqi retention of weaponry of mass destruction
and the claims of linkage between the Baghdad regime and the
al Qaeda network, and the alleged failures of deterrence and
containment. There was 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 retroactive justification. Here the focus is
on whether a war opposed because its side-effects seemed potentially
dangerous and its advance rationale was not convincing enough
to justify stretching the Charter System of restraint could be
justified after the fact. The justifications combine the quick
military victory with relatively low casualty figures, 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 pass judgment. 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 Iraqi precedent would not
be viewed so much as destructive of 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. (17)
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 weaken objections
to unilateralism. Adopting a constructivist view of international
law, much depends on the future conduct and attitudes of the
United States Government. Constructivism is a view of political
and legal reality that places decisive emphasis on dominant mental
perceptions as to a given set of conditions, whether or not such
perceptions are accurate as assessed from other standpoints.
(17a) Will the U.S. Government in the future exhibit generally
respect for the role of the Security Council or will it feel
vindicated by its decision to act unilaterally in 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 influence international
responses to challenged uses of force by states other than the
United States, and will affect global attitudes toward American
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 arguably were embedded
in the Charter by granting a 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 United States/United Kingdom recourse to
war against Iraq. (17b) The resolution divides responsibility
and authority between the occupying powers and the United Nations,
granting the US/UK 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 retroactively
endorsing recourse to force by the US/UK 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 Iraq War as precedent. Undoubtedly,
this ambiguity will be reduced, and possibly eliminated, by consistent
subsequent UNSC practice in future peace and security contexts.
The Charter System,
Mega-terrorism, and Humanitarian Intervention
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 Security Council, 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
that were operative during the cold war, narrowed the degree
of deference owed to the territorial supremacy 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 advocacy of 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. (18)
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 virtually impossible for the oppressed citizenry
to challenge 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 rights and democratization. Undoubtedly,
such forcible liberations would not have taken place without
the pressures mounted and the climate created by the September
11 attacks. Nevertheless, to the extent that mega-terrorism is
associated with criminal forms of governmental authority, would
it not be reasonable to construe uses of force that accomplished
"regime change" as part of an enlarged doctrine of
humanitarian intervention?
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 a 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). (19) If
the Security Council does not mandate the intervention, and a
coalition of the willing proceeds, the undertaking could still
be substantially vindicated, 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. (19a)
But a pro-intervention argument should
not be treated as acceptable in circumstances where the use of
force is associated with allege security threats posed by the
menace of mega-terrorism, but the justification 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-al Qaeda
arguments were unconvincing, and the claimed humanitarian benefits
resulting from the war were emphasized by American officials
as a way to circumvent the illegality of the American-led recourse
to force. Such post hoc efforts at legalization should not be
accorded much respect, especially in 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. (20)
A Constructivist Future
for the UN Charter System
The position favored here is that the
United States would be best served by adhering to the UN Charter
System. (21) This system is flexible enough to accommodate new
and genuine security imperatives as well as changing values,
including a shifting balance between sovereign rights and world
community responsibilities. (22) In both settings of humanitarian
intervention and responses against mega-terrorism the Charter
System can be legally vindicated in appropriate factual circumstances.
From this perspective recourse to war
against Iraq should not have been undertaken without a prior
mandate from the Security Council, and rather than "a failure"
of the United Nations, it represented a responsible exercise
of constitutional restarint. (23) The facts did not support the
case for preemption, as there was neither imminence nor necessity.
As a result, the Iraq War seemed, at best, to qualify as an instance
of preventive war, but there are strong legal, moral, and political
reasons to deny both legality and legitimacy to such a use of
force. It is not acceptable exception to the Charter System,
and no effort was made by the US Government to claim a right
of preventive war, although the highly abstract and vague phrasing
of the preemptive war doctrine in the National Security Strategy
of the USA would be more accurately formulated as "a preventive
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.
My legal constructivist position 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. (24) It would also work against tendencies
the United States and others to rely too much on military superiority,
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 Charter System 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 slavishly legalistic 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 is justified.
Such positive constructivist attitudes
will renew confidence in the Charter System. It is also true
that constructivism can work negatively, and so if the sorts
of 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.
Richard Falk
is visiting Distinguished Professor, Global Studies, University
of California, Santa Barbara and Milbank Professor of International
Law Emeritus, Princeton University. Falk is also an associate
at the Transnational
Foundation for Peace and Future Research.
Endnotes
1. "President's Remarks at the United
Nations General Assembly," Sept. 12, 2003, White House Text.
2. For representative contributions see
THE VIETNAM WAR AND INTERNATIONAL LAW (Richard Falk, ed., 4 vols.,
1968, 1969, 1972, 1976).
3. THE KOSOVO REPORT: CONFLICT, INTERNATIONAL
RESPONSE, LESSONS LEARNED (2002) 185-198; it should be mentioned
that I was a member of the commission.
4. Such a practice could be regarded
an 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 ways to overcome a paralysis that 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.
5. These three steps outlined in Kosovo
Report, supra note 3, 187.
6. A discussion of this challenge and
the U.S. response is the theme of my book, Richard Falk, THE
GREAT TERROR WAR (2003).
7. Initially fully depicted in "Remarks
by the President at 2002 Graduation Exercise of the United States
Military Academy," June 1, 2002; given a more enduring and
authoritative status by their emphasis in the official White
House document, THE NATIONAL SECURITY STRATEGY OF THE UNITED
STATES OF AMERICA, Sept. 2002, esp Chapter V, 13-16.
8. See supra, Note 1.
9. The most important Security Council
resolutions were 678 (1990), 687 (1991), and, of course, 1441
(2002).
10. "President Bush's Prepared Remarks
Declaring End to Major Combat in Iraq," text printed in
NY TIMES, May 2, 2003, A14.
11. This position is most clearly articulated
by Michael J. Glennon, Why the Security Council Failed, FOREIGN
AFFAIRS 82 (No.3): 16-35 (2003); the overall argument is more
fully developed in Glennon's book LIMITS OF LAW, PREROGATIVES
OF POWER: INTERVENTIONISM AFTER KOSOVO (2001); also relevant,
Anthony C. Arend and Robert J. Beck, INTERNATIONAL LAW AND THE
USE OF FORCE: BEYOND THE UN CHARTER PARADIGM (1993); A. Mark
Weisbrud, USE OF FORCE: THE PRACTICE OF STATES SINCE WORLD WAR
II (1997).
12. See Anne-Marie Slaughter, "Good
Reasons for Going Aroung the U.N.," NY TIMES, March 15,
2003.
13. See Charles Krauthammer, "U.S.
cleaning up Hussein's mess in Iraq," LA TIMES, May 16, 2003;
Thomas I. Friedman, "Bored with Baghdad&emdash;Already,"
NY TIMES, May 18, 2003, sec4, 13.
13a For the view that American moralism
and legalism has had a detrimental impact on U.S. foreign policy
during the first half of the twentieth century see George F.
Kennan, AMERICAN DIPLOMACY 1900-1950 (1951); also Henry Kissinger,
DIPLOMACY (1994), esp. 218-245, 762-835. For a more general interpretation
of the Wilsonian component as a more widely conceived aspect
of the overall American foreign policy tradition see Walter Russell
Mead, SPECIAL PROVIDENCE: AMERICAN FOREIGN POLICY AND HOW IT
CHANGED THE WORLD (2001), 132-173.
14 Paul Kennedy, THE RISE AND FALL OF
GREAT POWER: ECONOMIC CHANGE AND MILITARY CONFLICT 1500-2000
(1987).
14a For an argument along these lines
see Max Boot, "George Woodrow Bush: the president is becoming
a Wilsonian interventionist," WALL STREET JOURNAL, July
1, 2002.
15 Aside 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: "We are in a conflict
between good and evil, and America will call evil by its name.
By confronting evil and lawless regimes, we do not create a problem,
we reveal a problem. And we will lead the world in opposing it."
See supra, Note 1.
16 See Richard Perle, "Thank God
for the death of the UN: Its abject failure gave us only anarchy,
The World Needs Order," THE GUARDIAN, March 20, 2003.
17 For influential comprehensive presentation
along these lines see THE RESPONSIBILITY TO PROTECT: REPORT OF
THE INTERNATIONAL COMMISSION ON INTERVENTION AND STATE SOVEREIGNTY
(2001).
17a Constructivism as an academic approach
to the study of international relations is best explained by
Alexander Wendt in his SOCIAL THEORY OF INTERNATIONAL POLITICS
(1999).
18 For useful overviews of this trend
see Sean Murphy, HUMANITARIAN INTERVENTION: THE UNITED NATIONS
IN AN EVOLVING WORLD (1996); Nicholas J. Wheeler, SAVING STRANGERS:
HUMANITARIAN INTERVENTION IN INTERNATIONAL SOCIETY (2000).
19 For a well-crafted narrow doctrine
of humanitarian intervention see Jack Donnelly, UNIVERSAL HUMAN
RIGHTS IN THEORY AND PRACTICE (2nd ed., 2003) 242-260. For a
generally skeptical set of reflections about claims of humanitarian
intervention see HUMANITARIAN INTERVENTION: MORAL AND PHILOSOPHICAL
ISSUES (Aleksandar Jokic, ed., 2003); for a somewhat more optimistic
set of accounts see HUMANITARIAN INTERVENTION: ETHICAL, LEGAL,
AND POLITICAL DILEMMAS (J. L. Holzgrefe and Robert O. Keohane,
eds., 2003).
19a For important efforts see Kosovo
Report, note 3; The Responsibility to Protect, Report of the
International Commission on Intervention and State Sovereignty
(2001) 53-57; Lori Fisler Damrosch, ed., "Concluding Remarks,"
in Enforcing Restraint: Collective Intervention in Internal Conflicts
(Damrosch, ed.,1993), 348-367; and esp., Damrosch, "The
inevitability of selective response? Principles to guide urgent
international action," Kosovo and the Challenge of Humanitarian
Intervention (Albrecht Schnabel and Ramesh Thakur, eds., 2001)
405-419.
20 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, emphasizing the Vietnamese violation of Cambodian
sovereignty, urging immediate withdrawal despite the risk of
regenerating a genocidal regime.
21 A more generalized view of the benefits
arising from a law-oreinted approach are well explained in RULE
OF POWER OR RULE OF LAW? (Nicole Deller, Arjun Makhijani, and
John Burroughs, eds., 2003).
22 See Oscar Schachter, "In Defense
of International Rules on the Use of Force," 53 U. Chi.
L. Rev 113 (1986).
23 The reference to failure is to challenge
the central conclusion of Glennon's analysis, supra, note 10.
24 My assertion is in direct opposition
to the inferences drawn by Robert Kagen in his influential book.
See Kagen, OF PARADISE AND POWER: AMERICA AND EUROPE IN THE NEW
WORLD ORDER (2003).
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