NDC 3000 International Context Topic III: The Role of International Law in National Security

1. NDC 3000International ContextTopic III: The Role of International Law in National Security Dr. William Bradford National Defense College, 30 January 2014

2. Table of Contents • Nature of IL • Sources of IL • Is IL Really Law? • Compliance/Enforcement of IL • Effects on Sovereignty • Questions of Legitimacy • Legal Imperialism/Tool of Subordination • IL and Powerful States • IL and International Security • Anticipatory Self-Defense

3. What is International Law? • attempt to change the paradigm elaborated in the Melian Dialogue: “standard of justice depends on the equality of power to compel…the strong do what they have the power to do and the weak accept what they have to accept.” • politics creates order, determines social values and mores, prescribes/proscribes conduct • law establishes rules, defines/punishes offenses, and, most importantly, legitimizes political process • IL infuses first principles and rationales into IR other than simply “might makes right” • IL: rules, norms, principles, institutions binding upon civilized states in relations with other states, IOs, NGOs, individuals • purpose: provide order/predictability; inculcate religious, cultural, and moral values in patterns of behavior; protect/vindicate rights; promote justice; legitimize political order

4. What is International Law cont? • IL does not eliminate power but shapes context, assumptions, resources, interests, ends, means, ways • international lawmaking more difficult than domestic: (1) different societies, cultures, conceptions of justice, mores, customs, (2) no universal sovereign with power and legitimacy to create, interpret, adjudicate, and punish • sources: treaties (UN Charter, LOST, NPT, ICC) as contracts between states; (2) CIL: practices of states acting in accord with what they believe to be the dominant rules of international order (opinio juris); (3) principles of law recognized by so-called “civilized” nations; (4) judicial decisions/writings of scholars • subject matter: transportation, banking, regulation of sea/air routes, environmental issues, health, war, economic development, transnational crime, family law, torts, contracts—everything domestic law encompasses and more

5. Issues in IL: Is it Really Law? • Is IL undermining sovereignty as an organizing principle of IR, or… • is IL a “fairy ship upon a fairy sea: a beautiful construct of the legal imagination floating upon a sea of false assumptions[?]” because it is…dependent upon politics for its enforcement and doesn’t constrain state behavior, OR “almost all nations observe almost all principles of [IL] and almost all of their obligations almost all of the time” • in most issues, if IL does not per se dictate state behavior, compliance is the rule, but • while most states agree in theory with need for ROL, IL must contend with the “friction” of sovereignty, and there is • indeterminacy: IL means whatever I say it means, so obligations, and compliance, are auto-determined

6. IL: Compliance/Enforcement • compliance: often voluntary by self-interest, law-habit, reciprocity, good-faith • state cannot simply take its ball and go home whenever it does not get its way: shadow of the future exists • sanctions/isolation to contain and impose economic damage, international Courts (Nuremburg, ICTFY, ICTR, ICC), domestic prosecution (Israel v. Eichmann), Military interventions under UN Chapter VII or unilaterally, BUT • if IL is too modest + merely reflects what all states already do, why bother (HR)? But if too much labor is required to achieve compliance or enforce IL against sovereign states that are opposed, IL is too “expensive” and will be ignored: IL obligations have to be shaped to hit the sweet spot (HR) • not all violations of IL are “bad”: NATO intervened in Kosovo w/o UNSC approval and thus violated U.N. Charter, but all NATO + France joined to defend HR and prevent crimes against humanity

7. IL and Sovereignty • l’etat, c’est moi; sovereignty; and principle of nonintervention (Westphalia 1648) • all states violate IL some of the time, some states violate IL much of the time, no state complies with IL all of the time (but all states claim to comply all of the time) • core IL problem: (1) powerful states reluctant to be constrained, so turn to politics; (2) principle of sovereign equality rejects special dispensations to powerful states; but (3) IL requires power to enforce it—thus IL is (4) always pressured by powerful states that can exact special treatment in exchange for enforcement services • why do powerful states agree to IL in some issue-areas?: (1) they were already engaged in the obligated behavior (HR protection, free trade, enviro protection), (2) enshrines powerful states’ preference in law even if their power declines over time, (3) avoids repeat negotiations, creates predictability, reduces regulatory transaction costs, (4) affords weaker states some influence over rule content, incents adherence to resulting agreements, reduces enforcement costs • If IL is not understood to reinforce the interests of powerful states much of the time, it will become epiphenomenal to state practice

8. IL and Sovereignty cont. • in other issue-areas (use of force, security), unable to enshrine preferences due to sovereign equality, powerful states avoid IL or withdraw • avoidance: NPT divided world into nuclear/nonnuclear weapons states with the latter undertaking not to obtain them in return for former’s guarantee against nuclear threats (see Nuclear Weapons, ICJ); cf. Landmine Treaty, Kyoto, LOST • withdrawal: NK withdrawal from NPT/Iran contemplating same; US actions in Iraq, taken contrary to int’l public opinion, arguably w/o UNSC endorsement, evoke Melian dialogue; unsigned ICC

9. IL and Legitimacy • although IL, given equality and compliance obligation, constrains freedom to act, IL, as distinct from politics, provides a foundation of legitimacy: later attempts by powerful states to change rules are very difficult without political consensus • by providing legitimate institutional mechanisms for change, IL minimizes self-help incentive: there is a process • due to equal application of rules to all, the option for powerful states to rule weaker states through IL is foreclosed, although attempts to insert special privileges into legal regimes persist (UNSC membership, UNSCRs, reservations, vetos, etc)

10. IL and Legitimacy cont. • if IL is seen as a tool of the powerful, it will not compel compliance by weaker states: must always reflect demands of the powerful AND the “collective juridical conscience and social necessities of [the international] community.” (Kofi Annan) • legitimacy a function not only of the process whereby IL is made, and of the intentions of the state interpreting/applying it, but of the perceptions of observers • states can ignore or violate IL (German violation of Belgium WWI, Iraqi invasion of Kuwait) but violations have legal, political, and strategic consequences, and relations with other states remain colored by aggression/war crimes/anomic behavior for generations

11. IL as Legal Imperialism/Tool of Subordination • international institutions/agreements usually further interests of powerful states: US and EU as leaders of world economy led creation of GATT, WTO, bilateral/regional trade/investment treaties; Big 5 are UNSC permanent members; nuclear weapons states extend NPT • still, powerful states do not simply ignore IL they do not like, but rather… (A) actively labor to reshape IL to better reflect and accommodate power in the issue-areas that most affect them, (B) withdraw from IL to evade obligations (violations, exemptions, removal of subject matter from IL, denial of obligations), or (C) limit reach of IL to minimize constraints

12. IL as the Creation of Powerful States • Spain (discovery) • UK (sanctity of treaties; right to visit/search on high seas to prevent slavery, enforce pacific blockade, limit rights of neutrals) • Netherlands (alleged IL right to free trade to establish colonies /trade monopolies and extract value from non-European territories) • Germany, Japan, US, Israel (claimed right to engage in preemptive/preventive war)

13. IL and Withdrawal by Powerful States • Euro refusal to recognize American, Asian, African peoples as sovereign members of ‘family of nations’ and subjects of IL due to alleged “lack of civilization” • U.S. withdrawal from traditional IHL and creation of special legal regime for “rogue states” that sponsor terrorism or WMD (preemptive war, international prosecution, denial of application of IHL); Chinese territorial claims in South China Sea; Iranian claims to Abu Musa and Tunbs • (3) US withdrawal from ICJ jurisdiction in Nicaragua case

14. IL and Limitation of Reach by Powerful States • US no to Biodiversity Convention, Test Ban Treaty, Landmines, ICC , Kyoto Protocol • inclusion of reservations that limit obligations flowing from treaties signed e.g., U.S. reservation to the Genocide Convention: “(4) That acts in the course of armed conflicts committed without the specific intent required by Article II are not sufficient to constitute genocide as defined by this Convention.”; in other words, US reserves right to kill members of ethnic, racial, religious groups in war so long as they are not specifically intending to commit genocide: if genocide results, it isn’t legally genocide because there was no intent • Iceland broad declaration of territorial seas: 200 miles out because that’s where the cod is

15. IL and Strategy • IL strategy = substrategy of or adjunct to national strategy: NATIONAL STRATEGY IL STRATEGY • “strategists consider power and values: Those are what the ‘ends and means’ language and calculus…involve[s]. Legal concepts imbue and frame the calculations of strategists. [IL] represents the pattern of behavior that a society deems right achieved through processes equally deemed right. IL limits and shapes grand strategic choices. Democracies require that their strategies be rooted in…IL. Even tyrannies have an interest in [IL].” (Nick Rostow) • IL enforceable only w/in a structure that delivers consequences, but diplomacy and information required to (1) forge an ideological consensus that IL legitimates the resort to sanctions and (2) build political support for enforcement action (military or economic) • thus, law is (1) logically interconnected to and mutually reinforcing of all instruments of power, (2) the fundamental adjunct to strategy, and (3) a means, not an end (international lawyers believe otherwise)

16. International Law and Strategy cont. • ability to apply all instruments of national power effectively is limited by (a) degree of domestic social cohesion and (b) degree to which a country is regarded as honorable and trustworthy global citizen: less resistance domestically and internationally when a state is perceived as acting legitimately • how a state uses power, and how that use comports with common understandings of IL obligations, shapes domestic/foreign opinion: reputation as a law-abiding nation is a meaningful source of national power, and the perception of lawfulness or lawlessness multiplies or divides power • if a people come to perceive their own country as behaving un/lawfully in its IR, the national will to spend resources in exercise of power shrinks/grows: great nations have been beaten by small nations when social cohesion unravels (Vietnam, Algeria, UK, Israel in Gaza) • serious/persistent violations of IL by a state adversely affect the willingness of other states to contribute their political, diplomatic, economic, or other instruments of power to the pursuit of the violator’s COAs, which therefore become more costly, more risky, and less effective • IL is a lens through which the rectitude of the application of all instruments of national power is viewed • heightened strategic consequences for bad choices regarding IL : (1) fewer COAs, (2) increased costs/risks,(3) policy failure, (4) criminalization of national security strategy (Milosevic, Hussein, al-Bashir)

17. Case Study: US IL Strategy • “rule-of-law”: politico-legal order in which life, liberty, property are immune from arbitrary deprivation; individuals are formally equal in rights/duties; judges are neutral and redress grievances based on rules not politics; laws govern disputes rather than human whim • with prohibition on arbitrary government authority and recognition of the “law of Nations” as part of U.S. law, the Framers manifest the respect for ROL rooted in US national character and essential to American beliefs in the inherent goodness of the US, its institutions, and its IR/national security strategies: Art. I, Sec. 8, cl. 10: Congress granted the power “to define and punish offenses against the Law of Nations” • U.S. elites champion ROL as a highly valuable American export that confers prophylactic benefits peace, order, and justice—unto the world, and it is a desideratum for which Americans have spent blood and treasure from the earliest days of the Republic • predilection for resorting to law to order affairs/resolve disputes has penetrated American mind so deeply that law influences, even determines, the aims/outcomes of US wars -AUMF (2001) granted President the authority to use all "necessary and appropriate force" against those whom he determined "planned, authorized, committed or aided" the 9/11 attacks, or who harbored said persons or groups -AUMF (1991): authorized President to use military force to implement UNSCRs requiring Iraq to withdraw from Kuwait and disarm of WMD

18. Case Study: US IL Strategy cont. • IL part of U.S. strategy for defeating Islamism; National Strategy for Counterterrorism states that “commitment to the rule of law is fundamental to supporting an international order…capable of identifying and disrupting terrorist attacks, bringing terrorists to justice for their acts, and creating an environment…inhospitable to terrorists.” • thus, for US to be chastised for violations of IL threatens the fundament of U.S. legitimacy, & because the U.S. requires substantial public support to muster, deploy, and sustain military forces, and because allegations of violations of IL strike hard at the legitimacy of a nation constituted by ROL and unwilling to sustain “illegal” wars, allegations that it is lawless in war are a direct assault upon American political will • moreover, Americans traditionally respect IL but become frustrated when it restrains or limits the pursuit of national interests (Iraq), and seek to modify/re-interpret/withdraw • challenge for US and UAE is construction of an IL foundation acceptable to the international community that supports concerted action using all instruments of national power

19. Case Study: Islamists’ IL Strategy • Islamists identify COG as US will to fight, and diplomatic/informational/IL instruments as the best means with which to attack US will when used in ways that impute lawlessness to the US (Muslim Brotherhood, Explanatory Memorandum on the General Strategic Goal of the Group in North America, May 22, 1991; TRADOC, Operational Environment: 2009-2025, at 17 (August 2009). • “while the West has fought a limited war with military means to disrupt Islamist groups, Islamists have been fighting total war to destroy the West. In such a contest, Islamists need not ever win a single military engagement: they will prevail if they can psychologically exhaust the West, inveigle its peoples into doubting the utility/morality of the war, make the apparent price of victory exceed the costs, and compel the peoples of the West to pressure governments to abandon military efforts. To destroy Western political will, Islamists have targeted the most fundamental component of the American self-conception as the leader of a just civilization: its veneration of the rule of law.” (Bradford, 2014) • Islamist strategists have two-dimensioned COA consisting of an informational element—a PSYOPs campaign—supported by a military element—unlawful use of limited armed force—orchestrated to convince Americans that (a) the U.S. is an evil regime that has elected to fight an illegal war against Islam, (b) the U.S. systematically commits violations of IHL in prosecuting this war, (c) that U.S. crimes erode security and destroy core values, and (d) that the only way the U.S. can restore its moral virtue, recommit to the rule-of-law, and protect itself is to withdraw in defeat (Bradford, 2014)

20. IL and the Use of Force in International Relations • until UN Charter (1945) state prerogative to resort to force was immune from regulation (IMT verdict against aggressive war thus illegal but legitimate) • Article 2(4) proscribes “threat or use of force against the territorial integrity or political independence of any state,” but the Charter does not of its own force disable or impair the inherent right to self-defense (Article 51) • CIL doctrine of ASD holds that when a state is faced with imminent threat of armed attack it may lawfully resort to proportional acts of defensive armed force to preempt the attack • For restrictivists, ASD is a dangerous warrant for manipulative, self-serving states to engage in prima facie illegal aggression while cloaking their actions under the guise of legal legitimacy, and so an armed attack must occur prior to the lawful exercise of self-defense • For pragmatists, to read the Charter to require that a state submit to a potentially decisive first strike is a strategically and morally bankrupt conclusion

21. IL and the Use of Force in International Relations cont. • ASD invariably appraised following applications in practice: legal legitimacy is not ripe for review until long afterwards, when the defending state declassifies and submits the sensitive intel establishing the factual predicate upon which its decision to act rested to public review • “Bush Doctrine”: in NSSUSA (2002), the U.S. abandoned deterrence for a proactive strategic doctrine that sanctions unilateral military force to eliminate the intersection of WMD and undeterrable terrorists/rogue states before threats can operationalize • 2002 State of the Union: “We must prevent the terrorists and regimes who seek [WMD] from threatening the [U.S.]…I will not wait on events while dangers gather.” • 2003 State of the Union: Axis of Evil (Iraq, Iran, N Korea) • IL constrains states’ prerogative to resort to force, so law and strategy are inseparable: “that is not to say that every [COA involving ASD] accords with IL. Rather, strategy is…implemented within the normative international system even if [COAs] are sometimes…in tension with the system.” • therefore, every use of force, particularly AS, requires justification with reference to IL, and every apparent violation of IHL requires explanation, increases costs

22. IL and the Use of Force: Iraq 2003 • SEPT 2002: 43 advised UN it might be necessary to employ force against Iraq to enforce existing UNSCRs and eliminate a threat to international peace and security • UNSC 1441 found Iraq in “material breach” of obligations under ceasefire agreements codified in 17 earlier UNSCRs, including the obligation, under UNSCR 687, to disarm of WMD; threatened “serious consequences;” allowed Iraq “a final opportunity to comply with its disarmament obligations,” stated that failure would constitute an additional material breach • FEB 2003: SecState Powell notified UNSC of ongoing Iraqi efforts to obtain WMD—a material breach • France, Germany, Russia insisted that yet another authorizing UNSCR was necessary to render an invasion of Iraq lawful on the theory that 1441 did not specifically authorize such an invasion and that the threat from Iraq was not sufficiently imminent as to justify military action • 43 issued ultimatum: because “the power of Iraq to inflict harm on all free nations would be multiplied many times over” if enforcement action was not taken, the U.S. “choose[s] to meet that threat now, where it arises, before it can appear suddenly in our skies and cities.” • 19 MAR 2003: U.S. led coalition of 40 states into Iraq, defeated Iraqi military, and deposed Hussein regime • although OIF arguably predicated upon far less controversial legal justifications (enforcement of UNSCRs), intervention was characterized/characterizable as an act of ASD • MAR 2003: some scholars adamant that the threat posed by a WMD Iraq “was sufficiently imminent to render use of force necessary to protect the [US];” others held that the nature of the Iraqi threat was neither sufficiently imminent nor necessary to justify use of force, that existing UNSCRs did not confer legal authority for invasion, and that OIF had “ominous implication[s] for international order[.]” • was decision to intervene absent UNSC imprimatur a jurispathic act posing a grave threat to IL, or a clumsy but necessary act of regime change that reinforced the UN and IL? Could better IL arguments a priori have led to more resources, reduced risks, better COAs, better outcomes politically, militarily, and legally? • to date, the UNSCR has not imposed sanctions on any participating states

23. IL and the Use of Force: Syria 2014 • long shadow of Iraq War: while in 2003 the British Parliament supported HI against the mere possibility WMD might be used, in 2013 it voted against intervention after WMD had actually been used • humanitarian imperative: (1) suffering demands action, (2) no one except US can/will stop bloodshed, (3) once a threshold is reached, a right to use force for HI arises automatically • pragmatic argument: (1) crafting the most effective strategy, not law or power, is where the case for action must be made, (2) any military COA must improve the humanitarian situation, (3) where there is no such COA—no plausible plan to end the violence, no regime change plan—military options are ruled out: HI if and only if: cost/benefit ratio highest + ends killing of civilians + changes regime • anti-imperialism: slaughter of civilians is painful but so is history of great power politics in M. E. and the West cannot be trusted to intervene w/o selfish motives predominating; U.S. concern for IL is selective and based on power: if humanitarian exigency trumps IL, it should not do so only when it suits great powers

24. IL and the Use of Force: Syria 2014 cont. • no UNSCR authorizing force, Syria never ratified CCW, no self-defense argument, thus weak legal, albeit strong moral, case for war • US avoided referring to HI and argued an “international norm” against use of CWs: goal of use of force “to punish the Assad regime for using chemical weapons, both as a deterrent against using them again and as a warning to any future military leaders that they’d better not use them, either.” • general deterrence of future humanitarian abuses lacks legal foundation in IL: inductive interpretation of IL by US to serve broader national security ends = pour enourager les’autres • supporters of HI regard threat to use force on humanitarian grounds as lawful under most conditions; those who deny that the doctrine is part of IL will reject the lawfulness of the threat required to establish deterrence in any circumstance • should absence of a non-forcible alternative alone legally justify the use of force? R2P?

25. Gazan Conflict 2014: IL as Part of Hamas and Israeli War Strategies • Hamas ends: (1) eliminate Israel, (2) acquire rights to Jerusalem/return of all Palestinians to Gaza, (3) lift blockade (open crossings into Israel, allow free movement of goods and people, allow international direct investment, (4) increase political power within unity government • Hamas courses-of-action : (1) fight lengthy “self-defense” insurgency against Israeli aggression to increase political, economic, and human costs to Israel, (2) leverage civilian casualties and destruction with global media and in UN and NGOs to limit Israeli combat power by condemning Israeli methods and means as illegal, (3) leverage claims of Israeli illegality with media and diplomacy campaigns to convert US, EU, and Arab pubic opinion, force these states to accept Hamas as legitimate government, and abandon Israeli alliance,and (4) use diplomatic power to (a) secure a ceasefire with international observers to further limit utility of Israeli combat power and (b) give Hamas a seat at subsequent negotiations over permanent peace that includes economic aid to Gaza, land recovery, stoppage of settlements, opening borders, etc. • interests: secure, prosperous state with Jews settled throughout + stable non-hostile government on borders and in region • ways: (1) use overwhelming military power to (a) destroy Hamas, (b) eliminate Hamas as a military organization in the long-term, or (c) deter Hamas from launching rockets and tunneling in order to prevent attacks on and increase physical security of Israeli civilians; (2) use military in urban areas to cause pain to Gazan people and make them blame Hamas for the war, undercut political support for and otherwise marginalize Hamas, and transfer support to PA; (3) use diplomacy and media to leverage claims that Hamas started the war by launching rockets deliberately at civilians and fights with illegal means to reinforce Israeli moral and legal right of self-defense globally and in the U.S. in particular; (4) use diplomacy to leverage effects of events in Gaza to convince other potential enemies (Iran, ISIS) of Israeli power and confidence, (5) use diplomacy + military power to exclude Hamas from peace settlement and ensure no hostile government on Israeli borders

26. Lessons Learned • IL is an adjunct of strategy and a lens through which the legitimacy of the use of all instruments of power is viewed • IL can be used as sword, as shield, as cloak, as force multiplier, as force divider • IL’s indeterminacy, coupled with its capacity to constrain but also to justify, make it of great importance to strategists in developing strategy, assessing costs and risks, and developing/implementing COAs • IL

27. Questions?