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Published online by Cambridge University Press: 27 February 2017
1 See Glennon, Michael J., How War Left the Law Behind, N.Y. Times, Nov. 21, 2002, at A33 Google Scholar; see also Glennon, Michael J., Preempting Terrorism: The Case for Anticipatory Self-Defense, Weekly Standard, Jan. 28, 2002, at 24 Google Scholar.
2 Franck, Thomas M., Who Killed Article 2(4)? Or: Changing Norms Governing the Use of Force by States, 64 AJIL 809 (1970)CrossRefGoogle Scholar. Gray cites this article as an example of the argument that the prohibition on force has not developed into customary law. Franck’s point is actually that the treaty rule is a dead letter—the victim of desuetude or death through nonobservation. Franck’s claim is more radical than mere failure of a custom to develop from a treaty; he argues that a previously binding treaty rule no longer binds. See International Law and The Use of Force at 18 n.59.
Mary, Ellen O’Connell, Addendum to Armed Force in Iraq: Issues of Legality (April 2003) at <http://www.asil.org/insights/insigh99a1.htm>>Google Scholar.
3 Franck, supra note 2, at 810-11.
4 Id. at 835-36. After September 11, Franck wrote cogently on the application of Charter rules in light of the attacks of that day. See Thomas Franck, Terrorism and the Right of Self-Defense, 95 AJIL 839 (2001); see also Thomas Franck, Recourse To Force: State Action Against Threats and Armed Attacks (2002).
5 Louis Henkin, The Reports of the Death of Article 2(4) Are Greatly Exaggerated, 65 AJIL 544,545 (1971). (Atone point, Gray inadvertently credits this article to Schachter. See INTERNATIONAL LAW AND THE USE OF FORCE at 18 n.59; but see id. at 25 n.3.)
6 Jean Combacau, The Exception of Self-Defense in U.N. Practice, in THE CURRENT LEGAL REGULATION OF THE USE OF FORCE 9, 32 (A. Cassese ed., 1986) (footnotes omitted). Despite this wholesale attack on the Charter, Gray does not include Combacau—a French national— among the writers whom she criticizes for failing to value the declarations that are made by states. Instead, she lists only American writers—Anthony D'Amato, Mark Weisburd, Anthony Arend, and Robert Beck—as failing to assess fully what states say, and not just what they do. See INTERNATIONAL LAW AND THE USE OF FORCE at 18 & n.58. There is no question that Gray is aware of Combacau's essay since she cites it several times. See, e.g., id. at 88 n.14,92 n.28. This example gives rise to a concern that anti-Americanism may mar some of the strict objectivity of Gray's analysis. In another example, the author states that “U.S.” writers are especially critical of the ICJ's Nicaragua decision. But of the four such critical authors that Gray cites in a footnote to the discussion, one is a Canadian, one a former Canadian, and one a Briton. Id. at 97 n.42 (see id. at 54 for a similar example).
7 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ REP. 14, para. 186 (June 27).
8 Glennon, How War Left the Law Behind, supra note 1 (paragraph breaks omitted); Glennon, Preempting Terrorism, supra note 1.
9 In addition to the more extreme positions (like Glennon's) that the Charter rules on force have disappeared, there are more modest versions of the same basic position. Weisburd, for example, counts only state practice that actually sanctions a use of force. As a result, he concludes diat international law prohibits major aggression but little more. Gray rejects this position. For a view similar to that of Gray, see Mary Ellen O'Connell, Book Review, 92 AJIL 156, 156-57 (1998) (reviewing A. MARK WEISBURD, USE OF FORCE: THE PRACTICE OF STATES SINCE WORLD WAR II (1997)).
10 Michael Akehurst, Custom as a Source of International Law, 1974-75 BRIT. Y.B. INT'L L. 1. Anthea Elizabeth Roberts, Traditional and Modern Approaches to Customary International Law: A Reconciliation, 95 AJIL 757, 789 (2001), criticizes Akehurst's approach because statements may contain opinio juris that is both reflective of law de lege lata and de legefermda. But there is no basis for criticism here. Statements are conduct. They count as examples of state practice regardless of the opinio juris that they also reflect. The court or scholar must analyze the statement for the nature of the opinio juris, determining whether the statement indicates opinio juris of a rule de legefermda or de lege lata. The conduct element in making the statement is constant regardless of the nature of opinio juris. For example, Belgium alone argued before the International Court of Justice (ICJ) during NATO's bombing ofYugoslavia in 1999 that the bombing is a case of “humanitarian intervention for which there is a compelling necessity.” Legality of the Use of Force (Yugo. v. Belg.), ICJ Doc. CR 99/15 (English translation) (Int'l Ct. Justice May 10, 1999). This argument is an example of state practice that helps to build a customary right. Throughout its argument Belgium acknowledges the developing nature of the “idea” of such a right. It wants the court to find that a right had crystallized. Belgium also argued, however, that if the court decided not to recognize that right, Belgium would rest its case on the doctrine of necessity. Belgium's argument is itself state practice—and would have been even if it had not participated in the bombing. Nevertheless, the nature of Belgium's argument leads the scholar to conclude that in Belgium's opinion, the right was only de legeferenda when NATO began its bombing, that the right might have crystallized as a result of the bombing, and that the court could make that determination. The decisions, hearing transcripts, basic documents, and other materials of the ICJ are available online at <http://www.icj-cij.org>.
11 FRANCK, supra note 4, at 187. In addition to those by states, statements by international organizations, nongovernmental organizations, and individuals also have an impact on keeping rules alive, as well as on making, modifying, clarifying, implementing, and enforcing them.
12 Letter dated 7 October 2001 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc. S/2001/946 (2001); Letter dated 7 October 2001 from the Charge d'affaires a.i. of the Permanent Mission of the United Kingdom of Great Britain and Northern Ireland to the United Nations Addressed to the President of the Security Council, UN Doc. S/2001/947 (2001).
13 SeeNeil MacFarquhar, Arabs Back Overture to Israel and Declare Support for Iraq, N.Y. TIMES, Mar. 29,2002, at Al.
14 See, e.g., InBush's Words: Onlraq, U.N. Must Face Up to Its Founding Purpose, N.Y. TIMES, Sept. 13, 2002, at A10; see also White House, The National Security Strategy of the United States of America 14 (2002), at <http://www.whitehouse.gov/nsc/nss.pdf> (Rogue states “display no regard for international law, threaten their neighbors, and callously violate international treaties to which they are party.” “For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat—most often a visible mobilization of armies, navies, and air forces preparing to attack.“) [hereinafter NATIONAL SECURITY STRATEGY] .
15 “The United States helped found the United Nations. We want the United Nations to be effective and respectful and successful. We want the resolutions of the world's most important multilateral body to be enforced.” In Bush's Words, supra note 14.
16 “My nation will work with the U.N. Security Council to meet our common challenge…. We will work with the U.N. Security Council for the necessary resolutions. But the purposes of the United States should not be doubted. The Security Council Resolutions will be enforced.” Id. (paragraph breaks omitted).
17 NATIONAL SECURITY STRATEGY, supra note 14, at 15.
18 Mary Ellen O'Connell, The Myth of Preemptive Self- Defense (2002), at <http://www.asil.org/taskforce/oconnell.pdf>.
19 Amando Doronila, Backlash Shocks Canberra, PHILA. DAILYINQ., Dec. 5, 2002, 2002 WL 103480280; EUNol Supportive of Australia's Proposed Asian Terrorism Action, ASIA PULSE, Dec. 5, 2002, 2002 WL 103864236.
20 Letter Dated 20 March 2003 from the Permanent Representative of Australia to the United Nations Addressed to the President of the Security Council, UN Doc. S/2003/352 (Mar. 20, 2003); Letter Dated 20 March 2003 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations Addressed to the President of the Security Council, UN Doc. S/2003/350 (Mar. 21, 2003); Letter Dated 20 March 2003 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc. S/2003/351 (Mar. 21, 2003); see also Mary Ellen O'Connell, Addendum to Armed Force in Iraq: Issues of Legality (April 2003) at <http://www.asil.org/ insights/insigh99al .htm>.
21 See Tyler, Patrick E., U.S. and Britain Strike Afghanistan, Aiming at Bases and Terrorist Camps; Bush Warns ‘Taliban Will Pay a Price,’ N.Y. Times, Oct. 8, 2001, at A1 Google Scholar. The discussion in this subsection and the next has been adapted from O’Connell, The Myth of Preemptive Self-Defense, supra note 18.
22 Gray carries out no analysis of the nature of this state reaction. If she is correct in suggesting that many states condemn Israel because they view it as unlawfully occupying territory, then that condemnation tells us little about the states’ opinions concerning particular instances or categories of the use of force. Some deeper analysis of state reaction would have been most welcome. In the case of the 1976 Israeli raid at Entebbe, Uganda, Gray reads state reaction as condemning the raid, along with all other attempts at rescuing nationals. In distinction to other asserted rescue operations (Dominican Republic, Grenada), however, the Israeli raid at Entebbe actually was an attempt to rescue nationals. Some critics do argue, however, that Israel used excessive force and on that basis question the legality of the operation. Another example—the U.S. attempt to rescue its nationals held hostage in Tehran—had almost no chance of success. We consequently lack an example in which a genuine rescue was attempted using necessary and proportionate force. Would states generally reject the right to use necessary and proportional force to rescue nationals? My sense is that they would not, but at this point we have little useful state practice on which to base a conclusion.
23 Drozdiak, William & Chandrasekaran, Rajiv, NATO: U.S. Evidence on Bin Laden “Compelling”; Allies Give Unconditional Support for Retaliatory Strikes; Taliban Official Asks to See Proof, Wash. Post, Oct. 3, 2001, at A11 Google Scholar .
24 Recovered al-Qaeda Documents Reveal Plans for Other Terror Attacks: Official, Agence Fr.-Presse, Feb. 1, 2002 Google Scholar, 2002 WL 2330114.
25 See GA Res. 56/88 (Jan. 24, 2002) (“Measures to Eliminate International Terrorism”); SC Res. 1383 (Dec. 6, 2001); SC Res. 1378 (Nov. 14, 2001).
26 The most up-to-date statement of this law is found in the International Law Commission’s Draft Articles on Responsibility of States for Internationally Acts, Wrongful, in Report of the International Law Commission on the Work of its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), available at <http://www.un.org/ilc/>>Google Scholar [hereinafter Responsibility of States]. The articles are also annexed to GA Res. 56/83 (Dec. 12, 2001).
27 Responsibility of States, supra note 26, Arts. 4, 5. See Mary, Ellen O’Connell, Evidence of Terror, 7 J. Conflict & Sec. L. 19 (2002)Google Scholar, which concludes that in the wake of a clandestine attack, international law requires, at a minimum, clear and convincing evidence that all elements of a claim of self-defense be satisfied. Some international lawyers reject the right of a state to act on anything less than certainty regarding all elements of self-defense. They argue that international society is hardly an ideal court for weighing evidence and determining the legality of action on less than certainty. Yet, state reaction is supportive of the right to use of force in self-defense on the basis of clear and convincing evidence— especially since the September 11 attacks. While not an ideal standard, clear and convincing evidence is a practical threshold that prohibits the right to use force in the face of no credible evidence or even modest evidence of responsibility.
28 See GA Res. 3314 (XXIX), annex, Art. 3 (1974) (“Definition of Aggression”):
Any of the following acts, regardless of a declaration of war, shall . . . qualify as an act of aggression: . . . (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.
29 The ICJ found in the Nicaragua case that acts of me Contra rebels were not attributable to the United States because the United States did not exercise “effective control” over the rebels. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, paras. 114–15 (June 27).
30 Prosecutor v. Tadić, Judgment, No. IT-94–1-A para. 137 (July 15, 1999).
31 Responsibility for the Terrorist Atrocities in the United States, 11 September 2001 (Oct. 4, 2001), at <http://www.pm.gov.uk/oulput/Page 1812.asp> (updated version available at <http://www.pm.gov.uk/output/page387.asp>).
32 Schmemann, Serge, U.N. Envoy Says All Options Are Open on a Post-Taliban Afghanistan, N.Y. Times, Oct. 18, 2001, at B4 Google Scholar.
33 Allen, Mike & DeYoung, Karen, Bush: U.S. Will Strike First at Enemies; In West Point Speech, President Lays Out Broader U.S. Policy, Wash. Post, June 2, 2002, at A01 Google Scholar.
34 At <http://www.defenselink.mil/execsec/adr2002/index.htm>. Secretary of Defense Donald Rumsfeld stated in the report that, with regard to the lessons learned in the war on terrorism, “[D]efending the United States requires prevention and sometimes preemption. It is not possible to defend against every threat, in every place, at every conceivable time. The only defense . . . is to take the war to the enemy. The best defense is a good offense.”
36 Waldock, C. H. M., The Regulation of the Use of Force by Individual States in International Law, 81 Recueil Des Cours 451, 498 (1952 II)Google Scholar (emphasis added), quoted in Yoram Dinstein, War, Aggression, and Self-Defence 172 (3d ed. 2001).
37 Dinstein, supra note 36, at 172–75.
38 Le general Rabin ne pense pas que Nasser voulait la guerre, Le Monde, Feb. 19, 1968, at 1 Google Scholar; sec Quigley, John, The United Nations Action Against Iraq: A Precedent for Israel’s Arab Territories? 2 Duke J. Comp. & Int’l L. 195, 203–13 (1992)Google Scholar; Dinstein, supra note 36, at 173.
39 1967 U.N.Y.B. 175–77. In Franck’s discussion of the outbreak of the 1967 conflict, he states that Israel argued actual self-defense and, alternatively, anticipatory self-defense. Franck, supra note 4, at 102. In reporting on its initial use of force, however, Israel did not argue to the Security Council that it acted in anticipation of an attack, but rather that Egyptian forces had actually crossed into Israeli-held territory. By June 17, when the General Assembly began its debate on the conflict, Israel’s foreign minister no longer spoke of actual Egyptian attacks, but only of Egyptian forces approaching Israel’s borders. 1967 U.N.Y.B. 196.
40 See Marian Leich, Nash, Denial of Liability: Ex Gratia Compensation on a Humanitarian Basis, 83 AJIL 319 (1989)CrossRefGoogle Scholar; see also 1988 U.N.Y.B. 199–200.
41 See UN Doc. S/PV.2818, at 56 (1988); Letter Dated 6 July 1988 from the Acting Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc. S/19989 (1988).
42 Casey, Lee A. & Rivkin, David B. Jr., “Anticipatory” Self-Defense Against Terrorism is Legal (Dec. 14, 2001), at <http://www.wlf.org/upload/casey.pdf>Google Scholar; Michael Reisman, W., International Legal Responses to Terrorism, 22 Houston J. Int’l L. 4, 17–18 (1999)Google Scholar; Anthony, Clark Arend & Beck, Robert J., International Law and the Use of Force: Beyond the Un Charter Paradigm 186 (1993)Google Scholar.
43 Significantly, in their letters to the Security Council, see supra note 20, Australia, the United Kingdom, and the United States did not cite humanitarian intervention as a basis for the use of force against Iraq. This practice further supports Gray’s conclusion regarding humanitarian intervention—which she derives from focusing exclusively on state practice. She does not engage the arguments that, lawful or not, force should sometimes be tolerated in situations of extremity. This type of thinking, however, explains a conclusion, like that of the Goldstone Commission, finding the use of force in Kosovo to be unlawful, but still legitimate. See Independent International Commission on Kosovo, Kosovo Report (2000); see also Franck, supra note 4, at 174—91. Gray could have bolstered her reliance on practice by giving some attention to policy—in particular, by noting that the prohibition on humanitarian intervention is built on well-considered policy. If strong policy did not support the prohibition, it would not have withstood the enduring arguments in favor of such interventions. The military consistently advise political leaders that using force to protect human rights is extremely difficult. See, e.g., Michael, O’Hanlon, Using Force to Save Lives 49–52 (1997)Google Scholar. The results in Kosovo bear out that advice. So while some international lawyers continue to theorize about war for humanitarian purposes, the law continues to reflect the very practical difficulty of creating an exception to the bright-line prohibition on the use of force.
44 Kelly, Jack, U.S. Kills al-Qaeda Suspects in Yemen; One Planned Attack on USS Cole, Officials Say, USA Today, Nov. 5, 2002, at A01 Google Scholar.
45 Fox News Sunday, Nov. 10, 2002, 2002 WL 7898884.
46 Id.
47 Lumpkin, John J., Administration Says That Bush Has, in Effect, a License to Kill; Anyone Designated by the President as an Enemy Combatant, Including U.S. Citizens, Can Be Killed Outright, Officials Argue, St. Louis Postdispatch, Dec. 4, 2002, at A12 Google Scholar.
48 Dworkin, Anthony, Pentagon Official Examines Legal Aspects of Terror War, at <http://hsm.intellibridge.com/summary?view_id=117201800>>Google Scholar (on file with author).
49 Jean de, Preux, Geneva Convention Relative to the Treatment of Prisoners of War: Commentary 22–23 (Pictet, Jean S. gen. ed., de Heney, A. P. trans., 1960)Google Scholar.
50 Uhler, Oscar M., Henri Coursier, et al., Geneva Convention Relative to the Protection of Civilian Persons in Time of War: Commentary 3–9 (Pictet, Jean S. gen. ed., Griffin, Ronald & Dumbleton, C. W. trans., 1958)Google Scholar. See also Prosecutor v. Tadić, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, No. IT-94–1, para. 70 (Oct. 2, 1995), which defined “armed conflict” as existing “whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state.” In Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003), a U.S. circuit court recently decided that the law of war applied— and not U.S. (or presumably Afghan) criminal law— because a suspect was apprehended in a “zone of active military operations,” id. at 462, or “active hostilities,” id. at 476. Following the attack on the USS Cole in Yemen in 2000, the United States sent agents of the Federal Bureau of Investigation to work with Yemeni authorities to solve the case. Police techniques were used. Conditions in Yemen at the time of the Predator strike had not changed markedly from the time of the Cofe attack.
51 Dec. 16, 1966, 999 UNTS 171. Article 6 permits the use of the death penalty “pursuant to a final judgement rendered by a competent court.”
52 It may well be that the Bush administration has not thought through the full implications of declaring all the world a battlefield. The law of war applies to any use of force in hostilities. Under that body of law, the Central Intelligence Agency (CIA) operatives who killed the six suspects had to be lawful combatants in order to have the right to engage in hostilities. Although CIA operatives are not part of America’s armed forces, they might still qualify as lawful combatants if they could be characterized as a militia, have a commander, wear insignia, carry weapons openly, and conduct operations in accordance with the law and customs of war. Geneva Convention [No. III] Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Art. 4(1), (2), 6 UST 3316, 75 UNTS 135; cf. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, Arts. 43, 44, 1125 UNTS 3. If the CIA operatives did not meet all of these criteria, they could be charged with murder. But if they could be considered as authorized law enforcement officials who were cooperating with Yemeni officials, their situation would potentially be better: if the suspects resisted or fled in response to the CIA operatives’ attempt to arrest them, killing the suspects would probably not be considered murder.
53 Threats and Responses: Hunt for Suspects, C.I.A. Is Reported to Kill a Leader of al Qaeda in Yemen, N.Y. Times, Nov. 4, 2002, at A1 Google Scholar.
54 SC Res. 573 (Oct. 4, 1985).
55 Here, again, more analysis of state opposition would be helpful. It is not certain, for example, whether the European Union was critical of Turkey’s intervention into Iraq, see International Law and the Use of Force at 105–06, because the EU believed that Turkey had used disproportionate force or because the EU believed that any attempt to stop Kurdish attacks into Turkey was unlawful if it involved Turkey’s crossing into the territory of Iraq.
56 Accord, Koskenniemi, Martti, ‘The Lady Doth Protest Too Much’: Kosovo and the Turn to Ethics in International Law, 65 Mod.L. Rev. 159 (2002)Google Scholar (call for a new formalism following the intervention in Kosovo).
