The Regulation of International Coercion

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 cont