Punishment as Just Cause for War
Kenneth W. Kemp
 

On June 26, 1993, the USS Peterson and the USS Chancellorsville launched 23 Tomahawk missiles at the headquarters of the Iraqi Intelligence Service (Mukhabarat) in suburban Baghdad. President Clinton defended the attack in the following terms:

 

…there is compelling evidence that there was … a plot to assassinate former President Bush, and that this plot … was directed and pursued by the Iraqi intelligence service.…

…the Iraqi attack against President Bush was an attack against our country …. We could not, and have not, let such action against our nation go unanswered.

From the first days of our Revolution, America’s security has depended on the clarity of this message: Don’t tread on us. A firm and commensurate response was essential to protect our sovereignty, to send a message to those who engage in state-sponsored terrorism, to deter further violence against our people, and to affirm the expectation of civilized behavior among nations.…

There should be no mistake about the message we intend these actions to convey to Saddam Hussein, to the rest of the Iraqi leadership, and to any nation, [or] group of persons who would harm our leaders or our citizens. We will combat terrorism. We will protect our people.

… If Saddam and his regime contemplate further illegal provocative actions, they can be certain of our response.1

 The American ambassador to the United Nations, Madeleine Albright said, "we responded directly, as we are entitled to do, under Article 51 of the United Nations Charter, which provides for the exercise of self-defense in such cases."2 The appeal to self-defense, although not quite as explicit in the President’s speech as in Albright’s, was made by other administration officials as well. This justification was rejected in some quarters on the grounds that an attack which took place more than two months after the abortive assassination attempt to which it was a response could hardly be characterized as an act of self-defense. The act looked more like a case of reprisal, retaliation, or punishment than one of self-defense.

Such punitive measures are not new. An American Congressional inquiry made at the outbreak of the Korean War and later updated came up with a list of some 188 incidents in which American military forces were used outside the United States.3 Of these a number might reasonably be termed punitive. Typical examples are the following:

1831-2—Falkland Islands.—To investigate the capture of three American sealing vessels and to protect American interests.
1841—Samoa.—February 24.—To avenge the murder of an American seaman on Upolu Island.
1871—Korea.—June 10 to 12.—To punish natives for depredations on Americans, particularly for murdering the crew of the General Sherman and burning the Schooner.…
1914-17—Mexico.—The undeclared Mexican-American hostilities following the Dolphin affair and Villa’s raids included capture of Vera Cruz and later Pershing’s expedition into northern Mexico. Among other nations, Israel has been particularly frequent in its use of punitive raids.4 The most famous example occurred on December 28, 1968, when, in response to a Palestinian attack on an Israeli airliner in Athens, Israeli commandos destroyed 13 civilian aircraft at Beirut airport.

The question of interest here is, however, not whether the raid was precedented, but whether it was justified. In this paper, I will argue that

 

(1) the raid was justifiable by the principles of the just-war theory,

 

(2) recent international law is, in ways relevant to the raid, more restrictive than the just-war theory,

 

(3) reliance on international law rather than on the just-war theory weakened the Clinton Administration’s justification of the raid, and

 

(4) though international law-makers are well-motivated and should be encouraged in their efforts, the product of their work does not yet generally bind in conscience.

  

1. Just-War Theory & Its Applicability to the Problem at Hand

The just-war theory can be summarized as comprising the following theses:

J1: Killing other human beings (and waging war) is not always wrong.

 

J2: The Jus ad bellum: Only certain wars would be justified, namely those which are

 

(a) declared by a legitimate authority,

 

(b) waged for a just cause (i.e., to right a wrong), for the vindication of which war is both proportionate and the last resort, and

 

(c) rightly intended (i.e., aimed at justice and peace).

 

 J3: The Jus in bello: Only certain actions would be justified even in a justified war, namely those

(a) approved by the legitimate authority,

(b) discriminate, proportionate, and militarily necessary, and

(c) rightly intended.

 

 It is the jus ad bellum that we are interested in here. Does the attack on Mukhabarat headquarters meet the criteria of J2?

The fact the we are not inclined to call a single cruise missile attack a war—indeed, international lawyers classify such operations explicitly as "coercive measures short of war"—might lead one to wonder why it must even be brought to the bar of the just-war theory. The answer is that there are different senses of the term "war." It is important to distinguish war in the legal sense, in the moral sense, and in the popular sense.5 For example, Egypt was at war with Israel in a legal sense from 1948-1978, but it was not (always) at war in the popular sense. It was not even always at war in the legal sense. The Security Council, for example, rejected Egypt’s attempt to use this state of war as a basis for prohibiting passage of some ships and cargo through the Suez Canal.6

These distinctions are susceptible to abuse. One such abuse, the attempt to distinguish punitive expeditions from warfare, is effectively satirized by Finley Peter Dunne who had his Mr. Dooley "report" the following exchange from the Second Hague Peace Conference:7

Th’ dillygate fr’m Chiny arose, an’ says he: "I’d like to know what war is. What is war anyhow?"
"The Lord knows, we don’t," says th’chairman. "We’re all profissors iv colledges or lawyers whin we’re home," he says….
"Well," says old Wow Chow, "I’d like to go back home an’ tell thim what war really is. A few years back ye sint a lot iv young men over to our part iv th’ worruld an’ without sayin’ with ye’er leave or by ye’er leave they shot us an’ hung us up by our psyche knots, an’ they burned down our little bamboo houses. Thin they wint up to Pekin, set fire to th’ town an’ stole ivrything in sight. I just go out iv th’ back dure in time to escape a jab in th’ spine fr’m a German that I never see befure….Was that war or wasn’t it?" he says.
"It was an expedition," says th’ dillygate fr’m England, "to serve th’ high moral jooties iv Christian civvylization."
"Thin," says th’ dillygate fr’m Chiny, puttin’ on his hat, "I’m f’r war," he says. "It ain’t so rough," he says. An’ he wint home. Carefully deployed, however, the distinctions are not only legitimate, but necessary.

Although international lawyers continue to grapple with the problem of providing an adequate legal definition of war,8 one of Quincy Wright’s definitions—"an act or series of acts of violence by one government against another"—is entirely adequate for the purpose of moral analysis.9 International lawyers sometimes distinguish single acts of violence from war on the grounds that the single act may not be intended by the perpetrator, nor seen by the victim, as initiating a state of war between the two, but even when no such state is envisaged, the single act is often called an act of war. It is the use of violence that triggers the moral questions and a single act triggers those questions just as completely as does a world war. There may, therefore, be arenas in which such attacks must be distinguished from wars, but morality is not one of them.

2. The Attack on Mukhabarat & the Jus ad Bellum

Since the attack meets the definition of war in the moral sense, it must be evaluated by the criteria of the jus ad bellum. In this article, however, I want to focus exclusively on the criteria of just cause and, to a lesser extent, legitimate authority. Does punishment constitute a just cause for war? Is it something that the government of a nation-state has the legitimate authority to carry out?

The answer of classical just-war theorists to the first question is clear. Indeed, St. Augustine, in the passages that lay the foundation of the just-war theory, distinguishes three legitimate just causes of war—repulsion of attack, recapture of things taken, and punishment of those who have done wrong.10 The plea of self-defense, which the Administration used to justify the raid, is, on this view, only one of three legitimate causes of war.

A good case can be made for each of these three as a legitimately just cause. In each case, the act is an act of justice—a harm inflicted on one who deserves it on account of some fault. One can distinguish three kinds of such responsive justice—preventing the aggressor from accomplishing the aggression undertaken, undoing the effects of an accomplished act of aggression, and deterring repetition of the aggression by inflicting countervailing damages. These, of course, correspond to repulsion of attack, recapture of things taken, and punishment.11

Repulsion of attack is perhaps the least controversial of the three possible just causes. Classical just-war theorists termed such wars "defensive" and justified them on the basis of the principle that the natural law permits the victim of aggression to repel force with force. The limited character of this right was expressed by then US Secretary of State Daniel Webster in the following terms:

self-defense … should be confined to cases in which the "necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation."12 Such acts of self-defense must be sharply contrasted with the broader category, "acts of self-preservation." Acts of self-preservation may have the same end as acts of self-defense, but need not be directed at a party that is in any sense guilty. Self-defense, as interpreted by the classical just-war theorists, entitles the defender to use force only against those who are (at least objectively) doing wrong.13 An act of self-preservation might be aimed at anyone (regardless of guilt or fault) who stood in one’s way. At the level of individual action, the act of Dudley & Stephens in a famous British case14 (killing and eating a boy with whom they were shipwrecked) may have been an act of self-preservation; it was definitely not an act of self-defense. On the international level, the following are typical cases: the British bombardment of Copenhagen (1807), the German violation of the neutrality of Luxembourg and Belgium (1914), British mining of Norwegian coastal waterways (1940), British sinking of the French fleet at Oran (1940), and the Anglo-Russian occupation of Iran (1941). Such acts could be brought under the head of self-defense only if it could be shown that the nation attacked had an obligation to accommodate the attacker. To take the case of the mining of Norwegian waters,15 if it could be shown that Norway had an obligation to come to Britain’s aid by preventing German use of the shipping lanes in question, then its refusal to do so might be construed as a fault and the attack as self-defense. Barring such a showing, the attack would be unjustified.

The other two putatively legitimate causes for war were termed "offensive"16 wars. These required more elaborate justification.

Recapturing things taken might seem to differ only in degree from repelling attack. At the tactical level, a counterattack is nothing but a recapture of a positions just taken by the enemy. Indeed it would make little sense to say that a military unit may hold its ground but may never counterattack, even to retake the hill off of which it had just been driven. Can one distinguish retaking a hill from retaking an island (say, the Falklands)? Can one justify defending an embassy or ship but forbid liberating ("recapturing") the diplomats or sailors who have been taken prisoner?

In fact, a distinction between prompt couterattack and recapture of things taken can be made. The foundation of the distinction is a three-phase analysis of the process of wrongful appropriation. In the first phase, the appropriation is attempted but possession is not fully secured. During this phase, the wrongful appropriator continues to take actions whose effect is to increase his hold on the wrongfully appropriated goods. The second phase begins once this hold is secured and continues until the doctrine of laches takes effect. The third phase commences when the inaction of the victim of the wrongful appropriation justifies a judgment that possession by the wrongful appropriators (or his heirs) is, if not legitimate, at least no longer contestable by the victim. The distinctions between these phases are not clear cut, but the phases are as distinguishable as are day, twilight, and night.

A distinction like this one is made in domestic law. A citizen’s right to protect goods in his possession from seizure is recognized. His right to go after those goods once they have been absconded with is rather more limited. There is, for example, no right to burglarize one’s neighbor’s house to effect the return of stolen goods. The criminal law protects peaceful possession, not legitimate title. This is not because the victim has no further right to the goods; it is rather because the state is willing to use those forceful measures that domestic law denies to the victim. Why is the victim is entitled to wrestle with the thief for possession of the goods but not sneak into the thief’s home to secure their recovery? Because the likelihood that the first permission will lead to error or abuse is small. The likelihood that the second will do so is great. Once possession of the stolen goods is secured, there is little harm in demanding that the victim wait until others (the police, the courts) can come to his assistance.

Precisely the same considerations apply in international law. On October 22, 1946, two British destroyers, H.M.S. Volage and Saumarez, had been mined while exercising their right of innocent passage through the Corfu Channel (in Albanian territorial waters). The next month, Britain sent in minesweepers to clear the channel, an action which Albania took to the International Court of Justice. The 1949 decision reads in part:

The court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has in the past given rise to most serious abuses and such as cannot, whaterver be the present defects in international organization, find a place in international law. Intervention is perhaps still less admissible in the particular form it would take here; for, from the nature of things, it would be reserved for the most powerful states, and might easily lead to perverting the administration of international justice itself.17 The difference between repulsion and recapture, then, is the difference between continuing the struggle for something possession of which one never fully lost (defense in continenti, "unbroken defense") and commencing the attempt to recover something one did lose. Since loss of physical possession does not entail loss of the right to a thing, a war to recapture something taken is simply the exercise of the right to the thing. If the effort to regain possession is resisted violently, making the use of violence necessary to the success of the recapture, it is the wrongful possessor, not the party that is undertaking the recapture, that is at fault.

Punitive wars might have any of three particular objectives: (1) capture and punishment of private individuals outside of one’s own nation; (2) capture and punishment of the government officials of another nation;18 or (3) punishment of another nation as a community. Punishment can thus be readily distinguished from repulsion and recapture. Repulsion and recapture are inherently limited by their object. The object of an act of repulsion is the attacking force. The object of an act of recapture is the very thing taken.19 The punishment meted out, by contrast, while limited in its magnitude, leaves more room for variation in its nature.

The claim that a nation has a right to wage punitive wars raises the question of legitimate authority. On what basis can a state claim the right to punish the offenses that trigger punitive wars? A government’s jurisdiction in the case of crimes committed by individuals is usually based on one or the other of two principles—the territoriality principle, which gives it the right (indeed, the responsibility) to control what goes on in its own territory,20 and the personality (or nationality) principle, which gives it the right and, to some extent also the responsibility, to regulate the behavior of its citizens wherever they might be. Waging a punitive war can differ from meting out a criminal punishment in three ways. The right to wage war for purposes of punishment depends on the justifiability of each of these extensions, each of which has applications at the level of criminal law as well.

The first extension introduces two other principles of jurisdiction, distinct from the territoriality and personality principles mentioned above. Even at the level of criminal law, there are things that individuals can do outside a nation’s borders that affect its security and well-being. Examples would include lying to consular officials,21 counterfeiting currency,22 or committing terrorist attacks against a nation’s citizens traveling abroad.23 The first two of those examples are covered by the protective principle, which can be stated as follows:

A state has jurisdiction to prescribe a rule of law attaching legal consequences to conduct outside its territory that threatens its security as a state or the operation of its governmental functions, provided the conduct is generally recognized as a crime under the law of states that have reasonably developed legal systems.24 The third case is covered by the passive personality principle, by which states claim the right to protect its citizens against harm wherever they might be.

The second extension is with respect to the place where the acts of law enforcement will occur. In the case of individual criminal punishment the relevant acts of law enforcement are arrest and punishment. Ordinarily, the arrest is made by the nation in control of the site of the arrest and the individual is extradited, if necessary, for trial and punishment. Only occasionally are arrests made outside the territory of the punishing nation. Unwillingness to conduct trials in absentia (in Anglo-Saxon nations at least) and commitment to the formal character of executions makes cases of meting out punishment outside a nation’s territory a moot issue for most democratic nations. In unusual cases, however, such an arrest is attempted. The offender might presently be, or the punitive action might be planned for any of four different kinds of place.

First, the place might be under the jurisdiction of no government. The best example of such a place is the open sea, which, since the acceptance of the arguments of Grotius and Bynkershoek25 is considered to be outside the jurisdiction of any state. Since every ship is supposed to carry a flag and is considered to be a floating portion of the territory of the nation whose flag it flies, arrests aboard an ordinary ship would not be though of as under no jurisdiction. But a few cases remain, e.g., hot pursuit of criminals from littoral waters into the open sea, and arrest of pirates and slave traders. When the United States government located suspected hijacker Fawaz Yaounis in September, 1987, they lured him onto a yacht in international waters in the Mediterranean Sea, where they arrested him and brought him back to the United States for trial.

Second, the place might be under the effective jurisdiction of no government. This case can be divided into several subcases. In one the ineffectiveness might be comprehensive, i.e., there might be no control of the territory in question by the nominal sovereign whatsoever. A 19th century example is the Amelia case:

1817—Amelia Island (Spanish Territory off Florida).—Under orders of President Monroe, United States forces landed and expelled a group of smugglers, adventurers, and freebooters. A contemporary example might be Somalia. The initial American deployment was mostly a matter of law enforcement oriented on deterrence by denial—protection of a just food distribution network. The subsequent confrontations with General Aidid led to an attempt at punishment per se. A territory might be said not to be under the effective jurisdiction in a weaker sense in the face of an unusual crime, e.g., an airplane hijacking and hostage holding. Or it might be said not to be under effective jurisdiction when the nominal sovereign somehow allows the emergence of a particular threat which the potential victim can handle directly more effectively than it can by recourse to the police. Hot pursuit would be one such case. Emergency self-defense against cross-border raids would be another. The British believed that they faced this latter situation in the Caroline affair, when anti-British guerrillas based in New York launched raids into Canada. In these cases, however, the emergency can more easily be seen to generate a right to a preventive (i.e., self-defensive) than a properly punitive raid.

Third, the place might be under the jurisdiction of a government unwilling to punish the offense. This would include cases where the government with jurisdiction was itself the offender. An example would be the July 3, 1976 hijacking of an Air France jet to Entebbe, Uganda. The hijacking was broken up by Israeli commandos, though the action was more a matter of recaption than of punishment.

Fourth, the place might be under the jurisdiction of a government willing to mete out the punishment.

The third extension is with respect to the person or group punished. In ordinary criminal punishment, the object is some person (or group of persons, but treated as individuals). Punitive wars are often aimed either at a nation’s leaders as leaders or at a nation, i.e., a collective entity, not at private individuals. The punishment of corporations is an application of this extension at the level of the criminal law.

All three of these extensions of the right to punish can be justified in the same way. The government has the duty and the right to protect the common good of the community it governs. Unlike private individuals, it has the right to do so even at the expense of the private good of those who wrongfully harm it. Neither the location of the action itself, nor the present whereabouts of perpetrators, nor even their status as foreign government officials or as an entire nation eliminate the duty. Consequently, none of those features of the action undermine the right.

Can these extensions justify war? Given the definition of war cited above, not all of the acts of punishment mentioned above would count as war. In particular, operations like those on Amelia Island, in Somalia,26 and the Caroline incident would not. For in none of them was there any contention between governments. Only when the acts of violence are directed by one government against another (or against an entire community) does the act become a matter of war rather than law enforcement.

Sometimes such armed contention between governments is both a proportionate response to the wrong and the last resort of the nation seeking to mete out punishment.

This would not ordinarily be the case for law enforcement against private individuals. Where extradition is possible, war is obviously not a last resort. War is not a last resort even where extradition is not possible. One alternative is kidnapping. Two examples are the arrest of Adolph Eichmann (Buenos Aires, May 11, 1960) and Dr. Humberto Alvarez Machain (Guadalajara, April 3, 1990). Each was smuggled out of the nation where they were arrested and brought back to the nation where they were wanted (Israel and the US, respectively) for trial. Neither country, of course, admitted that those who carried out the arrest (Nazi hunters in the former case, bounty hunters in the latter) were its agents. The reluctance to admit to the deed shows, I hope, not just hypocrisy, but ambivalence about an action which, while perhaps not wrong in principle, probably is disproportionate in the sense that the resultant erosion of world law outweighs the benefit of bringing the suspect in question to trial.

Even more objectionable would be punishment of the criminal, say, by assassination. Unwillingness to conduct trials in absentia (at least in Anglo-Saxon nations) and commitment to the formal character of executions for the most part makes this a moot issue for democratic nations. Totalitarian nations are not always restrained by such scruples. The Soviet Union’s assassination of Evhen Konovaletz in Rotterdam (May 23, 1938), of Leon Trotsky in Coyoácan (August 20, 1940), and of Stepan Bandera in Munich (October 15, 1959) are all examples of such punishment as is Iran’s death sentence against Salman Rushdie. But are these assassinations repugnant merely because Konovaletz, Trotsky, Bandera, and Rushdie were not guilty of any crime? To what extent are we more comfortable with Israel’s hunting down of the murderers of their Olympic athletes in Munich? Of course trial in absentia and punishment by assassination are inherently risky procedures. But can we condemn assassination even of the guilty and still permit war to secure their arrest? Could such a war ever be proportionate?

Whatever one thinks of whether war to secure custody of criminals is ever proportionate, there are cases of the other two types of punitive wars that do pass the tests of last resort an proportionality.

In the case of punishment of a nation’s leaders (e.g., the leaders of Nazi Germany after World War II), war is necessary because no government will extradite its own leaders. In the case of certain crimes (e.g., the crimes against peace perpetrated by the Nazi leadership), the crimes are sufficiently serious to override the proportionality considerations that usually weigh against resort to war.

In the case of punishment of a nation as a whole (e.g., the restrictions on Iraq’s right to make its own decisions about weapons development, the requirement that it pay war reparations, &c.), war is the only way to secure agreement to the punishment, though, as we can see in the case of Iraq, even that is not always sufficient.

Although the risks of inadequate trial (or decision procedure) and collateral damage in meting out punishment are present here (as they were in the case of trial in absentia and punishment by assassination), they are in this case, unlike in criminal punishment, justifiable because, absent punitive war, most nations perpetrating unjust actions would go unpunished for offenses more serious than those perpetrated by ordinary criminals. Punishment, through its preventive and deterrent effects, is one of the ways a nation has of defending itself against external threats.

The Mukhabarat raid was an act of punishment.27 It met the Just Cause (and Legitimate Authority) criteria of the Just-War Theory.

 

3. The Jus ad bellum & International Law

Augustine’s three-fold account of just cause, is therefore correct in principle. In practice, however, the extended right of self-help (including the rights of recuperation and of punishment) is extremely susceptible to abuse.28 Nineteenth century diplomatic history includes too many cases in which the European powers either punished what did not deserve to be punished at all or punished real crimes in a disproportionate way.

The worst case of self-help—worst in its effects, at least, though unreasonable enough in its own terms—was Austria’s attempt to punish Serbia for the assassination of Archduke Ferdinand. Although nominally Austria’s demands were focused on stopping Serbian terrorism, in fact the demands were so unreasonable as to suggest that Austria’s real objective was the humiliation of Serbia, not the protection of Austrian officials.

The resultant horror of a four-year world war, and then a second to which the botched diplomacy that ended the first gave rise, gave impetus to diplomatic efforts already in progress to abolish war as an instrument of national policy.29 These efforts culminated in the League of Nations, the Paris Treaty for the Renunciation of War, and the United Nations Charter.

The Preamble to the Covenant of the League of Nations began with the following words: "The High Contracting Parties, in order to promote international cooperation and to achieve international peace and security by acceptance of obligations not to resort to war … agree to this Covenant of the League of Nations." The Covenant itself contains the following provisions:

11. The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League.…
12. The Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture, they will submit the matter to arbitration or judicial settlement or inquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision, or the report by the Council.
16. Should any Member of the League resort to war in disregard of its covenants under Articles 12, 13, or 15, it shall ipso facto be deemed to have committed an act of war against all the other Members of the League, which hereby undertake immediately to subject it to [various named sanctions].30 International lawyers, as mentioned earlier, have long distinguished war from "coercive measures short of war," some of which involved the use of military force and thus were war in the moral sense. When, in August 1923, Italy bombarded and occupied the island of Corfu as a reprisal for the assassination of General Tellini in Greece, apparently by Greek terrorists, the League was forced to confront the question of whether this was a resort to war of a kind restricted by Article 12 of the Covenant.31 The League’s unwillingness to commit itself on this matter—"Coercive measures may or may not be consistent with the provisions of Articles 12 to 15 of the Covenant, and it is for the Council of the League, when the dispute has been submitted to it to decide …," said the Committee of Jurists—set a dangerous precedent which had to be corrected…. It was cited by Greece two years later in defending its October 1925 incursion into Bulgaria.32

The General Pact for the Renunciation of War33 of 1928, which attempted to correct some of the shortcomings of the Covenant, contains two substantive articles:

The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.
The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.34 This treaty was more restrictive than the Covenant, which still allowed resort to offensive war under some circumstances. It was, however, no more explicit than the Covenant on the scope of the term "war" and the signatories did not renounce war as an instrument of policy against non-signatories.

The Covenant and the Kellogg-Briand Pact did manage to move European political thought (if not practice) away from the doctrine of Kriegsraison and back to a moral theory of war more consonant with the just-war theory of Aquinas, Vitoria, and Suárez. But the Kellogg-Briand Pact had no real enforcement measures at all and the enforcement provisions of the Covenant were ineffective in practice if not in principle. The League performed admirably in providing a peaceful resolution of the dispute between Turkey, Iraq, and Great Britain over Mosul (August 1924), and averting war between Bulgaria and Greece over a border incident in which they both shared responsibility (October 1925). But when major powers were involved, as in January 1932 when China appealed to the League for help against Japan and in September 1935 when Abyssinia appealed for help against Italy, the League was ineffecive. Indeed, within twenty years of the implementation of the Covenant, a mere ten years after Germany, Italy, Japan and the Soviet Union had signed the Pact, the world was again at war. While the existence of the Pact provided a legal basis for prosecution of German government leaders after World War II, this could be little consolation for the 50 million people who lost their lives during that war.

With the creation of the United Nations Organization, the international community had a fresh start. The Preamble to the Charter of the United Nations includes the following objectives: "We the people of the United Nations, determined to save succeeding generations from the scourge of war … and for these ends to ensure … that armed force shall not be used, save in the common interest have resolved to combine our efforts to accomplish these aims." Articles of the Charter relevant to our topic include the following:

1. The Purposes of the United Nations are:
(1) To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means … adjustment or settlement of international disputes ….
2. The Organization and its Members … shall act in accordance with the following principles.
(3) All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
(4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political sovereignty of any state, or in any other manner inconsistent with the purposes of the United Nations. Note that the Charter prohibits not merely "war" but "the use of force." The breadth of this phrase was clarified in the Corfu Channel case of 1949 mentioned above.35 Even the attempt to remove mines from an international waterway (although one that was within Albanian territorial waters) to facilitate exercise of the right of innocent passage was judged an illegal use of force. In addition, the Charter provides an enforcement mechanism, including use of armed force by the United Nations or regional security organizations acting as it proxies.36

The UN Charter allowed recourse to war in only two cases:

51. Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.
107. Nothing in the present Charter shall invalidate or preclude action, in relation to any state which during the Second World War has been an enemy of any signatory to the present Charter, taken or authorized as a result of that war by the Governments having responsibility for such action. Article 107 (sometimes called the enemy states clause) came to be interpreted by the Western powers as obsolete, but were mentioned by the Soviet Union in its justification of its 1968 invasion of Czechoslovakia. Article 51 is clearly of continuing relevance. In contrast to the Kellogg-Briand Pact, the Charter explicitly acknowledges the right of self-defense.37 But how much of a right does Article 51 acknowledge? The Clinton Administration, like others before them, relied on a rather broad interpretation.38 To the extent that punishment has a deterrent effect, acts of punishment could be seen as protecting or defending those against whom attacks are deterred. There are, however, two reasons for rejecting the broad interpretation as the intent of the authors of the Charter.

The first reason is that punishment by the aggrieved nation violates the spirit of the Charter and the vision of the organization. Surely the use of armed force to punish another nation is inconsistent with Articles 1 (1) and 2 (3)-(4). The phrase "until the Security Council has taken measures …" suggests that it is only repulsion of attack that Article 51 recognizes. Repulsion of attack is urgent; it cannot wait. That is why a nation under armed attack may respond immediately, without waiting for the Security Council to take up the issue. Both recuperation and punishment are different in this respect. They seldom, if ever, generate a similar urgency.39 They can, therefore, wait until the Security Council can act. This interpretation is expressed in the following pair of remarks made in General Assembly debates. First, from a Mexican delegate in a 1965 General Assembly discussion:

For the use of force in self-defense to be permissible under the Charter, such force must … be immediately subsequent to and proportional to the armed attack to which it was an answer. If excessively delayed or excessively severe it ceased to be self-defense and became a reprisal which was an action inconsistent with the purposes of the United Nations.40 During the 1956 debate on the Suez crisis, the Columbian delegate made the same point: The use of force or armed intervention to secure rights, even lawful rights, has been strictly prohibited unless ordered by the Security Council … No country may take the law into its own hands.41 The second reason for thinking that Article 51 was not intended to authorize punishment is the history of subsequent use and interpretation of the Article. In 1955, the Security Council unanimously condemned an Israeli reprisal against Syrian forces (near Lake Tiberias, December 11, 1954).42 In 1956, both Israel and Egypt attempted to reserve the right of self-defense (meaning the right to conduct reprisals) in connection with the General Armistice Agreements then in place.43 Secretary-General Dag Hammarskjöld, in a 1956 report to the Security Council, stated that "the reservation as to self-defense [i.e., Article 51] does not permit acts of retaliation, which repeatedly have been condemned by the Security Council."44 In 1964, Yemen complained to the Security Council about British attacks on Yemeni towns. The British ambassador appealed to Article 51 (the raids were in defense of Aden, a British protectorate at the time), but explicitly denied that the acts were reprisals. The Security Council, siding with Yemen by a vote of 9-0-2, condemned the British action and stated that "reprisals as incompatible with the purposes and principles of the United Nations."45

The only kind of war still permitted under international law as expressed in these documents is a war of self-defense in the strict sense. Referring back to St. Augustine, we might say that the UN Charter ruled out the last two objectives as possible justifications for war. They are not, it is important to emphasize, declared to be unfit objectives for the use of military force. Articles 41-42 explicitly allow the Security Council to used armed force in such cases. But armed force used under the auspices of the Security Council would be, not a war (i.e., "acts of violence by one government against another," as in the definition above), but an international effort at law enforcement. This, of course, is the reason that the Korean War was sometimes called a "police action."46 International law, it would seem, cannot justify the raid.

4. International Law, Conscience & the Mukhabarat Raid

Clinton, perhaps because he is a lawyer and not a philosopher, attempted to defend his actions in terms of the only permission that the central documents of international law left him. Unfortunately for him, that probably wasn’t enough. The assassination attempt was over. It had failed. There was nothing to repel.47

But shouldn’t President Clinton have to justify his actions in terms of twentieth-century treaty commitments rather than by reference to more permissive medieval treatises in moral philosophy? If the UN had lived up to the dreams of its founders, the answer would be "yes." For reasons that the diplomatic history referred to above makes obvious, it would be better to have an international (and presumably more disinterested) body to mete out punishment to outlaw nations and, for that matter, also to recapture things unjustly taken. In any case, that is what we agreed to—Pacta sunt servanda. But there is no international police force on which nations in trouble can rely for assistance. Korea and Kuwait may have gotten help, but Bosnia has been pretty much left to the mercy of Yugoslavia and the Bosnian Serbs whom they armed. UN attempts to force Libya to hand over the suspects in the Lockerbie bombing have been similarly unsuccessful. The UN is not a police station or a court; it is a highly politicized deliberative body. The inexcusable delay in admitting Macedonia to membership is only another sign of the extent to which politics, not justice, determines policy. Resort to it bears the risk of generating only pious expressions of concern. It is improving, but it has a long way to go.

Since the presuppositions on which the promise to refrain from using war as in instrument of policy was made do not obtain, it is morally permissible for nations to continue to rely on self-help in punishment and recapture. It would have been awkward for President Clinton to say all this too loudly. Saying such things would not only be insensitive to people like Secretary-General Boutros Boutros-Ghali who are trying to improve the UN’s still rather modest effectiveness, but might even slow down those very improvements. Nevertheless, those are the facts. And if outlaw nations are not punished by anyone in the interim, the world will become a worse place before it becomes a better one.

 

NOTES

1 Address to the Nation, June 26, 1993. Reprinted in Congressional Quarterly Almanac 49 (1993), 21–D.

2. Remarks at the Security Council Meeting of July 27, 1993. Reprinted in Congressional Quarterly Almanac 49 (1993), 21-22–D.

3. U.S. Library of Congress. Foreign Affairs Division. Background Information on the Use of U.S. Armed Forces in Foreign Countries; 1975 Revision. Committee Print, 94th Congress, 1st Session. Washington, U.S. Govt. Printing Office, 1975, pp. 58-66.

4. For a summary discussion, see Michael Walzer, Just & Unjust Wars (Basic Books, 1977), pp. 216-222. For a fuller treatment, see William V. O’Brien, Law & Morality in Israel’s War With the PLO (Routledge, 1991).

5. In The Relativity of War & Peace (New Haven, 1949), Fritz Grob shows that there is not even a single legal sense of the term "war".

6. UN Doc. S/2322, Sept. 1, 1951.

7. Mr. Dooley Says (New York, 1910), pp. 212-213.

8. For a survey of work on this problem, see Hans van der Dennen, "On War," in The UNESCO Yearbook on Peace & Conflict Studies, 1980, pp.128-190.

9. "Changes in the Conception of War," American Journal of International Law, XVIII (1924), 755-767, here 762. Other reasonable definitions are Bronislaw Malinowski’s "an armed contest between two independent political units, by means of organized military force, in pursuit of a tribal or national policy" ("The Deadly Issue," The Atlantic Monthly, 158 (1936), 659-669, here p. 659) or Mr. Justice Bushrod Washington, in the settlement of a prize case arising out of the Franco–American Naval War, defined war as "every contention by force between two nations in external matters under the authority of their respective governments" (Bas v. Tingy, 4 Dallas 35, 38 (1800)). Washington’s definition may be slightly too restrictive, since someone might challenge the claim that a single attack (like that on the Mukhabarat headquarters) was a contention, since there was no response from Iraq.

10. The permissibility of the repulsion of attack ("defensive war") was assumed by St. Augustine to follow without further comment from his general arguments for the permissibility of war. The permissibility of latter two is asserted in the following passage: "Those wars are called just which have as their objective to avenge injuries, when it is a matter of punishing a city or nation which is not willing to punish a bad action performed by one of its subjects or to return that which has been taken unjustly" (Quaest. Heptat., on Joshua 8:2; reprinted in J. Migne, Patrologia Latina 42: 448).

11. The explication that follows is in agreement with that of Robert Regout, La Doctrine du guerre juste de Saint Augustin à nos jours (Pedone, 1935).

12. Communication to the British Minister [Lord Ashburton] in the Caroline Case, August 6, 1842.

13. St. Thomas, Summa Theologiae, 2a2ae, Q. 40, a. 1; Francisco Vitoria, De Indis, ….

14. Regina v. Dudley & Stephens (1884), 14 Q.B.D., p. 273.

15. For a discussion of this incident, see Walzer, pp. 242-250.

16. This term was explicitly contrasted to the term "aggressive war."

17. ICJ Reports, 1949, p. 35.

19. US arrest and prosecution of Manuel Noriega represents a difficult middle case here. He was arrested for crimes that he committed when he was in office. Further, he was able to commit the crimes he committed only because of the power which his office gave him. But the acts nevertheless do not seem properly characterizable as "official acts" on his part.

20. Ordinarily, it cannot even be some other object of equivalent value. Consider a victim’s attempt to steal his neighbor’s painting to replace the one which the neighbor previously stole or an attempt to pick the neighbor’s pocket for $40 to replace stolen goods. Taking $40 to replace $40 is different only because we treat bank notes as interchangeable.

21. This right is sometimes extended by what is called the objective territorial principle, according to which a crime might be punished not on the basis of the site of the act itself, but on the basis of the site of its effects. The Noriega case is a recent example.

22. Cf. US v. Pizzarusso, 338 F.2d 8 (1968).

23. See the Convention on the Suppression of Counterfeiting Currency of May 1, 1929.

24. The US passed such laws in 1984 and 1986. This case might

25. Restatement, Second, Foreign Relations Law of the United States (1965). The case of protection of a nation’s citizens is based on a nominally distinct "passive personality" principle.

26. Hugo Grotius, Mare liberum (1609); Cornelius van Bynkershoek, De Dominio Maris (1702).

27. Assuming that the warlords that took control of local areas after the collapse of the Somali central government did not count as new governments.

28. For a summary of the case for Iraq’s guilt, see the remarks of Amb. Albright to the Security Council, cited above.

29. As, no doubt, St. Augustine would agree. To cite a cause as just is not to say anything about the frequency with which the right to act on the just cause by going to war is trumped by other considerations.

30. Hague Conferences of 1899 and 1907, in particular the Convention of 1907 Respecting the Limitation of the Employment of Force for the Recovery of Contract Debts and the Conventions for the Pacific Settlement of International Disputes of 1899 and 1907. The second of those conventions led to the establishment of Permanent Court of Arbitration in 1900.

31. As amended on September 26, 1924.

32. For a discussion, see Illinios Law Review 18 (1923), pp 131-149; Hill in American Journal of International Law 18 (1924), 98-104.

33. Official Journal, 1926, at 115. Per Lauterpacht, II, §52a.

34. Also called the Pact of Paris or the Kellogg-Briand Peace Pact.

35. Articles 1-2.

36. See also the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations (adopted without vote by the General Assembly in 1970) and the Report of the Special Committee on the Question of Defining Aggression (adopted by consensus of the General Assemby in 1974).

37. Articles 41-49 & 52-53.

38. Secy. Kellogg, in a letter of April 23, 1928 to Amb. Herrick, stated that this right was inherent and that there was no need to mention it explicitly in the Pact. State Department, Foreign Relations of the United States, 1928, I, 36-37.

39. Another way of accomplishing the same end is emphasize that punitive acts are not "acts of force against the territorial integrity or political sovereignty of any state" and to argue further that they are not "inconsistent with the purposes of the United Nations." That would keep them from falling under the principle enunciated in Article 2(4).

40. Recuperation might be similarly urgent if there were a real risk that the persons captured would be killed, or the things taken destroyed. Note, however, that even this consideration was rejected in the Corfu Channel Case, where one of the British justifications of Operation Retail was the gathering of evidence relevant to their demand for reparations for damage suffered by theVolage and Saumarez.

41. GAOR/20th Sess., 6th Ctte./886th Mtg./Dec. 1, 1965/para. 42. Quoted in Goodrich & al., p. 347.

42. GAOR/1st Emergency Special Sess./562d Plen. Mtg./Nov. 1, 1956/p. 15. Quoted in Goodrich & al., p. 55. See also Rosalyn Higgins, The Development of International Law…, p. 216-221.

43. Resolution of March 29, 1955. Note that the proportionality of the reprisal was also an issue.

44. UN Doc. S/3584, Apr. 12, 1956/Parts III & IV. Summarized in Leland M. Goodrich & al., Charter of the United Nations: Commentary and Documents (3rd & rev. ed.) (Columbia Univ, 1969), p. 346.

45. UN Doc. S/3596, May 9, 1956. Reprinted in Public Papers of the Secretaries-General of the United Nations. Volume III. Dag Hammarskjöld. 1953-1956, pp. 84-110, at p. 96. See also UN Doc. S/3638, Aug. 21, 1956, Annex IIB.

46. UN Doc. S/5649, Apr. 8, 1964.

47. Though it was in fact conducted under Article 51, rather than Articles 41-42, the forces that went to the aid of the Republic of Korea flew the United Nations flag.

48. At best, he could have argued, as President Reagan seemed to in justification of his 1986 attack on Tripoli and Benghazi, Libya, that destruction of the headquarters of the intelligence service would prevent (not just deter) a second assassination attempt.