James P. Terry

The Regulation of International Coercion: Legal Authorities and Political Constraints (Newport Paper) James P. Terry

The most significant discourse about serious threats to U. S. national security in the

twenty-first century will likely concern the military capabilities and intentions of

nonstate actors, acting either for themselves, for religious elites, or as surrogates for

state sponsors. This preoccupation results not from any inordinate fear of ?terrorism?

but from a recognition of objective military and political realities.  While prior to 1991

only the Soviet Union possessed the capacity to inflict catastrophic military destruction

on the United States, today that threat is vested in terrorist cells and religious sects that

seek to destroy the fabric of the United States through unconventional military and

paramilitary 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 miscalculation

by the Soviets. Today, that threat has been recharacterized in terms of deliberate

aggression against the United States by nontraditional actors willing to take suicidal risks

to inflict premeditated, brutal savagery on innocent civilians in a manner designed to

force 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, make

the greatest contribution to countering the threat?a threat now represented by social

and religious systems that foster or at least condone aggressive response to differing religious

and social values. This has never been more true than in Afghanistan and in

Iraq. Security, then, means more than simply protecting the land on which we live; it

embraces a comprehensive understanding of the appropriate response to human aspirations

for improved conditions of life, for equality of opportunity, and for justice and

freedom. Where these interests are thwarted for peoples or groups within a particular

state or region by armed protagonists representing narrow, restrictive interests, our response

must be one measured by the effective institutionalization of order.

This monograph first examines the relationship between law and the use of force, to include

a review of the principles of legal justification, the legal criteria for self-defense, and

the policy of deterrence followed by the United States. It then examines the characteristic

differences between the interpretive approaches taken by national and nonnational entities

in their respective claims and counterclaims during international crises.

Chapter 2, which concludes Part I, is focused on the historical aspects of the minimum

world order system, which today comprises the prohibition against the use of force by

one state against another embodied in Article 2, paragraph 4, of the United Nations

Charter, with the exception inherent in customary international law and in Article 51

of the Charter that every state is authorized to use force in self-defense. A review of the

pre-Charter system focuses on the development of the nation-state and the threads of

international law development leading to multilateral agreements vice solely bilateral

accords. 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 the

United Nations. The structuring of the Charter is then addressed in terms of the concept

of aggression and lawful response to aggression. Chapter 2 concludes with a review

of the law of self-defense as defined first under customary international law and

then under the UN Charter.

Part II addresses lesser conflicts. Chapter 3 addresses instances where intervention is

authorized in defense of humanitarian values defined in the UN Charter. The recent

humanitarian interventions in the Congo and in Kosovo provide examples of authorized

humanitarian initiatives. Chapter 4 examines the American intervention in Panama

in 1989 as we intervened both to protect our interests under the Panama Canal

Treaty and to ensure the safety of U. S. nationals present in Panama pursuant to that

agreement. Chapter 5 reviews those conflicts in which terrorist violence by individuals,

groups of individuals, and state-supported terrorist elements create a right to respond

through military force by the target state. The attacks by Iranian militants in 1979 and

by 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 enforcement

measures are not legally constrained and that people responsible for terrorist acts

are consistently held accountable by regional and international organizations. This expanding

body of international law, when coupled with increasingly effective national

legislation, appears to be arming the victims of terrorism with some of the legal instruments

necessary to combat the threat. This chapter concludes that governmental response

to state-supported terror violence, where the elements of necessity and

proportionality are met, is clearly supported by customary international law and the

UN Charter.

Part III, consisting of chapters 6 and 7, addresses examples of major conflict. These are

conflicts that have involved aggression by one or more nation-states against another

nation-state, as opposed to the intervention by nations or coalitions of nations in response

to either humanitarian crises or terrorist violence. In these major conflicts, the

sovereignty of a nation is normally in dispute. While not necessarily exhibiting greater

destructiveness than ?lesser? conflicts, the more traditional international conflicts addressed

in Part III invoke the law-of-war principles reflected in the Hague Conventions

of 1899 and 1907 and the Geneva Conventions of 1949.

Chapter 6 examines the coalition response to Iraqi aggression in 1990?91 during Operation

DESERT STORM. It contrasts the illegality of the actions of the Iraqi regime of

Saddam Hussein with the responses of the coalition led by the United States, which

succeeded in liberating Kuwait and returning its borders to the status quo ante. The

chapter begins with a discussion of Iraq?s invasion of Kuwait and the response of the

United Nations, leading up to the decision to use force. It then examines the conduct of

armed hostilities by both sides during the war. The chapter concludes with observations

on the role of law in the successes and failures of the postwar enforcement regime

in Iraq.

Chapter 7, Operation IRAQI FREEDOM, examines the Bush administration?s decision to

invade Iraq in March 2003 and enforce a long series of UN Security Council resolutions

addressing Iraqi threats to international peace and security. This chapter examines

these Iraqi violations in the context of international law principles justifying

intervention. More significantly, it examines the right of states to enforce mandates issued

by the Security Council and to redress violations of its edicts when the Council, as

a body, refuses to do so.

Part IV addresses U. S. policy for peace operations. The United States has voted to support

the United Nations and NATO in providing multilateral forces to restore international

peace and security. The United Nations was involved in both Chapter VI

(peacekeeping) and Chapter VII (peace enforcement) operations in the 1990s, with

limited success. Chapter 8, ?Development of Criteria for Peace Operations,? looks at

the limitations inherent in UN leadership of such operations, citing the UN fa...