Cyber Warfare and International Law

April 19, 2010

The risk of cyber warfare in the 21^st century poses the urgent need to assess the applicability of jus ad bellum and jus in bello as international regulatory frameworks for that kind of conflict. Below I refer to jus in bello mostly. Respect for international humanitarian law (IHL) in the course of offensive or defensive cyber warfare operations is mandatory. It is foreseeable, however, that IHL rules will be constantly violated in this type of conflict by aggressor states, hackers and terrorist organizations, posing serious threats to international peace and security.

Several incentives foster the violation of IHL in the context of cyber warfare. Some of them are: the prohibition of states to retaliate against civilians; the increased opportunity for aggressors to safely attack civilians and states in a cyber battle field that makes it difficult for the victim to find the source of the attack; the low economic cost of preparing and executing cyber attacks compared to military attacks; the lower risk for the life, liberty and integrity of the aggressor; the difficulty of delineating a frontier between cyber warfare operations violating IHL from those that do not; the possibility of attacking a state from within the state; and the difficulty of determining what is a cyber attack, and when it is taking place.

In May of 2007 Estonia was the victim of a cyber attack. In spite of the fact that the main targets were public institutions, the blockade over the emergency line caused by the attack had the effect of obstructing emergency calls for at least one hour. Notwithstanding the fact that the attack was very damaging, it is unclear what type of response by Estonia against the aggressor would have complied with the rules of international law and IHL, and particularly, with the principles of proportionality and neutrality. I believe that international law does not provide adequate answers to these questions.

Moreover, I believe that international law is ineffective to address and respond to the risk of cyber warfare, and therefore needs a radical evolution in order to be in capacity to provide effective solutions against it.

Sadly enough, terrorism and cyber warfare seem to be reaching their goal: seriously jeopardizing the safety of citizens around the world, destabilizing international law, and delegitimizing the use of force under traditional international law principles. It seems clearer every day that an effective response to those threats depends upon the transgression by states of human rights law (against terrorism) and of international law (use of force and IHL).

This paradox is a symptom of the complexities and liquidity of 21^st century-second modernity (Beck, Bauman). It seems that the best option currently available to states in order to protect their boundaries,  and government and civilian networks, is to strengthen technological and defense barriers against offenders, and to recur to their ‘inherent right to self defense’, whatever that means, trying as much as they can not to incur in violations of IHL and international law.

Criticism against the Rome Statute Crime of Aggression

April 12, 2010

The core concept of Aggression and its elements is well known by the international community. The concept was included in articles 1 and 39 of the Charter.[1] Furthermore, a definition of Aggression as a conduct prohibited by international law was included in Resolution 3314 of the United Nations, issued in 1974. [2]  However true this may be, agreeing on a definition of a crime of Aggression is far much difficult.

The Special Working Group on the Crime of Aggression (SWGCA), created in 2002, has been drafting the Elements of the crime of Aggression ever since, in pursuit of consent of member states to approve the draft submitted for review of the group in 2002.[3] The definition of the crime proposed and provisionally agreed by the parties is substantively equal to the definition contained in Resolution 3314.[4]

Its elements are: “1: The perpetrator was in a position effectively to exercise control over or to direct the political or military action of the State which committed an act of aggression as defined in element 5 of these Elements. 2: The perpetrator was knowingly in that position. 3: The perpetrator ordered or participated actively in the planning, preparation or execution of the act of aggression. 4: The perpetrator committed element 3 with intent and knowledge. 5: An “act of aggression”, that is to say, an act referred to in UN General Assembly resolution 3314 (XXIX) of 14 December 1974, was committed by a State.6: The perpetrator knew that the actions of the State amounted to an act of aggression. 7: The act of aggression, by its character, gravity and scale, constituted a flagrant violation of the Charter of the UN, 8: The perpetrator had intent and knowledge with respect to element 7.”

Further, if we take a look to Resolution 3314 we will find that: “Article 1. Aggression is the use of force by one State against the sovereignty, territorial integrity, or political independence of another State, or in any other manner inconsistent with the Charter of the UN, as set out in this definition. (…) Article 3. Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression: (…) b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State. Article 5. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.(…)”

Several criticisms can be made to this formula of Aggression, but the most problematic is that of “in any other manner inconsistent with the Charter”. Under a broad interpretation of article 51 of the Charter or under the new doctrine of responsibility to protect, a wide range of arguments and defenses could be made by states in defending that their conduct was not inconsistent with the Charter. We may conclude, therefore, that the requisite of definiteness of crimes widely accepted by international and domestic criminal law would not be present.

Moreover, the definition of aggression formulated in Resolution 3314 also results problematic under the requisite of knowledge of the criminal conduct. Proof of scienter may be particularly difficult in cases involving highly problematic issues of international law, such as the right to preemptive action, or the right to self defense against cyber attacks.

Lastly, given the dynamics of world power and international conflict, criminalizing Aggression could lead the world to a state of anarchy, where states would try to pursue their political agenda by legal warfare at the international level against heads of states of competing countries.

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[1] Charter of the United Nations. Article 1. The Purposes of the United National 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 (…) Article 39. “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

[2] Resolution 3314 of the United Nations. Articles 3 and 4. “Article 1. Aggression is the use of force by one State against the sovereignty, territorial integrity, or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition.

(…) Article 3. Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression: (…) b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State.

Article 5. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.(…)”

[3] Paragraph 42 of the Report of the SWGCA, dated 20 February 2009 (ICCASP/

7/SWGCA/2)

In Larger Freedom and UN Reform

                                                                       April 5, 2010

In Larger Freedom portrays an erroneous view of the need of reform of the UN collective security system. The arguments on which that document is based are in my view overbroad and create pitfalls to the legitimacy of the UN and to the success of its main aim to prevent international conflict and violence.

               

The new collective security paradigm that the document intends to fashion argues in favor of an expansion of what collective security implies. It also argues in favor of enhancing the understanding and interpretation of the “responsibilities, commitments, strategies and institutions that come with it”.

               

As it has been noted by academia, the broader understanding of collective security proposed by In Larger Freedom, requires an expanded notion of “threat”. That notion leaves behind the traditional definition given to it by international law, and opens the door for a new extensive meaning, where problems such as economic and social poverty, interstate conflict, domestic violence and war, proliferation and trafficking of mass destruction weapons, terrorism, and transnational crime, come into play.

               

This is highly problematic as the difference between hard, medium and soft threats, is erased. Therefore, significant resources needed in order to prevent or control the explosion of hard threats are misdirected in preventing soft threats that are not as important to the international community.

Subsequently, almost any problematic international phenomenon becomes a pretext for collective action. This creates an additional risk, namely the possibility of almost any state to intervene in other’s country sovereign affairs under the threat to international peace  pretext.

               

A problem of hierarchy of threats could also be raised, particularly in light of the still insufficient tools to assess causation in highly complex scenarios. If violence can be prevented by attacking its roots, causation explanations become of the utmost relevance. The problem is, however, if those causes are in themselves threats to international peace? Are states or the international community entitled to act against them? Which causes are more important? Drug trafficking? Hunger? HIV? Environmental damages?

Finally, other problem is the difficulty in defining in what form it should be responded to the above mentioned type of soft threats to international peace. It doesn’t seem that the UN or the international community has the knowledge, or technical and budgetary capacity to address such problems that - as building operations have shown - have an indiscriminate maturity date. It is possible to know when they begin, but never when they end; all of which is aggravated by non intended consequences of intervention of the UN members or institutions aimed at tackling the threats.

In conclusion, the imprecise and overbroad definition of “threat” implied by In Larger Freedom, as well as the background of myriad of issues likely to trigger the need for collective action, creates an insurmountable task to the UN, that will deviate the efforts and resources of the UN from its immediate and real mission to safeguard international peace and security, toward an elusive goal, that may even have negative consequences for the international community or the host states of the collective action.

In Larger Freedom is too ambitious. It makes of the UN a huge global state aimed at solving the biggest problems on earth, but without the necessary funds and means to correct highly complex social problems, and without the capacity to give clear standards of behavior and intervention to member states and the international community.

The Threats of Passportation for International Peace

March 22, 2010

The Georgian conflict of 2008 poses two interesting questions for international law. First, we may ask whether a passportation policy such as that adopted by the Russian government constitutes a threat to international peace and security, and second whether it constitutes an action likely to trigger the right to anticipatory or preemptive self defense under article 51 of the Charter. Both questions need to be answered affirmatively, but carefully.

The passportation policy adopted by the Russian federation constituted a threat to the international peace. In supporting this conclusion, I find as given that the Russian Federation deliberately, knowingly and with premeditation initiated the passportation policy as a means to enhance its influence over the region, and particularly, over Georgian soil; that policy was intended to reduce Georgian power over the territory populated by the “new Russian citizens”; and, such a policy aimed at creating a pretext for Russian intervention in the region, under the argument of its right to protect its own citizens “beyond its borders”.  The evident intentions of the Russian government, on the other side, very likely were going to derive in a strong response of the Georgian government against the Russian policy, thus escalating the tension in the region.

The rationale behind my first answer is built over three main aspects. First, the deliberate passportation policy did not derive from a general immigration or naturalization policy of the Russian Federation, but rather responded to the Russian interest of creating a legal -or at least political- justification for Russian military intervention in the region. Second, such a policy biased citizens located in the conflict zones in favor of separatist movements under the shielding wing of Russia, therefore undermining Georgia’s sovereignty. Third, the Russian policy broke a delicate equilibrium between the parties in conflict, thus swelling it and involving other geopolitical interested parties in the conflict, such as NATO and the US.

The rationale underneath my second answer is built upon three considerations. First, a massive passportation policy may very well constitute a preparatory action pursuant to an armed attack over foreign soil. This assertion, however, is not as clear-cut as we would like it to be. It is very difficult to draw the line that divides the cases in which it does constitute a preparatory action and those in which it does not. This is even harder to value, considering the fact that passportation is not a very common “tactic” or “military” strategy among potential attackers. Nevertheless, the “commonness” or “rarity” of the preparatory action does not seem to be a strong factor that may clarify if an action directed to an act of aggression is under way or not.

Second, a massive passportation policy may detach citizens originally loyal to another country, in favor of the country adopting it. Such a policy undermines national character, national discipline, and respect for one owns institutions, and diminishes the moral resolve with which the nationals of the second country are willing to defend their flag and interests. Such passportation policy is thus a very important and unfortunate deterrent of firm actions pursuant to the conservation of national sovereignty that would contribute to stability in the region.

Third, a massive passportation policy may trigger a sudden and uncontrollable flow of citizens from one state to the other, thus undermining the number and quality of potential combatants in the conflict. This implies a direct threat to the security of the victim-country of this strategic, silent, and overt act, aimed at the vaporization of national identity nexus between its nationals and its public authorities and army.

It all these three elements are (were) present at the same time, Georgia, or any other country put in its position, when the Russian Federation implemented its passportation policy, would be entitled to act in proportional self defense, if, and only if, such immediate action is (were) absolutely necessary, and there is (were) not enough time to go to the Security Council to obtain approval of use of military force.

Flaws of the Responsibility to Protect Formula

March 8, 2010

The Responsibility to Protect formula included in the World Summit Outcome Document of 2005 has in my view five major problems.

First, by mentioning the responsibility of each individual state to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity, it provides a numerus clausus list that bars responsibility to protect in cases such as environmental catastrophes or disastrous events of other nature that we have not even imagined.

Second, the document does not create a sound rationale for right to protect intervention, but instead states an overbroad case-by-case principle of intervention that does not enhance predictability of international relations, nor of limits to the sovereignty principle, and that even less helps to establish a useful criteria to determine in which cases intervention is necessary or even more, mandatory.

Third, by stating that each individual State “has the responsibility to protect its populations from…” the document allows different interpretations, of which the most notable in my view are: a) Each individual state does not have an obligation to protect the populations of other countries in cases of genocide, war crimes, ethnic cleansing and crimes against humanity. And b) As the term population is not defined, it could be argued that a state could unilaterally undertake measures to protect its citizens or residents located abroad, in the country where the genocide, war crimes, ethnic cleansing or crimes against humanity are actually taking place. These possible interpretations weaken the entire responsibility to protect principles. 

Fourth, the authority to employ the last resort and intervene militarily still rests solely in the Security Council and the General Assembly. Given the veto power, responsibility to protect norms, seem to be ineffective tools pursuant to the prevention of humanitarian catastrophes, due to political or national security interests of the Permanent Members of the Council. A more flexible approach, not needing consensus of the P5 would be desirable.

Fifth, the right to use force under Chapter VII is not accompanied by a rationale of the scope of the intervention with regard to local political processes, construction of democracy, checks and balances, and in general, the strength of nation states capable of providing human security to their populations. Therefore, the right to sovereignty is affected, and citizens of the intervened states may become subject to neocolonialism and international opportunism.

In conclusion, an open list of responsibility to protect cases would be preferable, clearer boundaries and rationales for intervention should be designed, a better formulation of the duties of each individual state with regard to the populations of other countries should be made, the term populations should be clarified, the veto power should be eroded in cases of urgent need of responsibility to protect cases, and boundaries should be defined with regard to intervention in failed or abusive states, that need to be removed in order to protect the security of its nationals.

Is the UN Charter a World Constitution?

                                                                   
March 1, 2010

Sir Michael Wood provides an insightful approach to the UN system. He argues that the analogy between domestic constitutions and the constitution (Charter) of the UN system, is misleading. He argues that the analogies are not accurate, and that the UN has a sui generis structure. He asserts (i) that the term constitution has no particular meaning in international law. He further contends (ii) that it is not possible to compare the whole idea of checks and balances of domestic constitutions with the UN system. Finally, he argues that (iii) the international community has little in common with societies within States.

However, Sir Michael Wood does not provide a single persuasive argument in support of his conclusion. I think, on the contrary, that the UN charter is a constitution analogous to domestic ones, but of course, different in nature and scope to them.

The analogies are evident: First, generally speaking a constitution is designed to constrain, limit and distribute power and functions among the different institutions and members of an organization, whether a political body, a corporation, or a non-for-profit foundation. The Charter effectively distributes powers and functions among its different institutions and bodies. That is a fact.

Second, Sir Wood argues that checks and balances do not work in the UN in the same way they do at the domestic level. He takes for granted that domestic constitutions clearly limit and define the boundaries of the different branches of powers, thus enhancing the checks and balances structure of a state. On the contrary, he argues, the UN does not have that clear definition, and even some scholars have argued that the SC has assumed judicial or legislative functions. If that is the case we can plainly ask “So what?”

Constitutional engineering is tough, and politicians and lawyers have clearly learned throughout centuries that a strict separation of powers is never possible in a modern state. The executive branch often acts as a legislator, the courts often take decisions that can affect laws that affect macroeconomic policies adopted by the legislature or the executive branch, the legislature in some cases acts as a judicial body (in impeachment cases), etc. Even European scholars -with Zagrebelsky as the leading scholar on the field- have been developing, a new theory of cooperative interaction between branches of power, and not just of clear cut opposition or reciprocal control between them. Thus, the lack of clear delimitation of boundaries is not just a difference between the UN system and domestic constitutions, but an additional similarity.  

Third, with regard to the international community, I don’t see why it has “little in common” with domestic society as the author suggests. International community is formed by constituents of different states, just as domestic society is formed by individuals. Further, international human rights’ courts are starting to recognize the capacity of individuals to go directly to the courts, without the aid of any particular state or international body or organization. Furthermore, a new citizenship is in process of formation. Domestic citizenship is being eroded and will be in some near future substituted by regional or global citizenship. That also looks strikingly similar to the process that nation states had to go through, and are still going through, in some cases.

The point is, in conclusion, that the UN legal system is a relatively new political structure, and thus is going through a slow yet inevitable process of transformation and definition, where the main aim of the great majority of the member states and the constituents of those member states is the prevention of war, conflict, the rule of law, and in general, the constraint of power. The UN Charter is, put this way, the social contract adopted by states in order to prevent the scourge of war. The new Leviathan is the UN, which enjoys of a military arm to ensure that its decisions are respected, and that peace is not breached.

Legality or Illegality of the Colombian Crusade against Terrorism in Foreign Soil

                                                        February 15, 2010

As of March 1, 2008, the Colombian government ordered the bombing of a military camp of the Colombian Armed Revolutionary Forces (FARC) - a fifty year revolutionary movement - placed in the Ecuadorian side of the Colombo-Ecuadorian border. Military intelligence had confirmed that Raul Reyes, one of the most important historical leaders of that organization and a permanent member of its General Secretariat, was hiding in the camp.[i] The outcome of the airstrike was the death of Raul Reyes and 17 additional rebels, the death of 4 students of the National University of Mexico (UNAM), the detention of several persons, and the collection of data of the highest importance, contained in two computers of Reyes, which later provided evidence of the logistic, economic, and ideological, support of the Ecuadorian and Venezuelan governments to the FARC.[ii] A diplomatic outburst ignited during the following weeks between Colombia, Ecuador and Venezuela. The latter countries mobilized troops to their borders with Colombia, thus creating huge tension in the region.

The Colombian government later argued that (i) the bombing had been a self defense operation of the Colombian military – that had previously been attacked by enemy fire near the Colombo-Ecuadorian border – in compliance with article 51 of the Charter of the UN,[iii] (ii) no violation of Ecuadorian airspace had occurred, as the airstrike departed from Colombian airspace into Ecuadorian soil, (iii) Colombian military entered Ecuadorian soil in order to secure the area, until Ecuadorian authorities could arrive to the place, (iv) the Ecuadorian government had been passive with regard to the presence of FARC combatants in its territory, and therefore nothing would have resulted from diplomatic efforts to obtain the detention of Reyes, (v) furthermore, ex post facto evidence found in the computers evinced several meetings held by Ecuador’s defense minister Gustavo Larrea with Raul Reyes, that would prove Ecuador’s support to FARC rebels, and (vi) the need to strike Reyes down, impeding him from engaging in further criminal activity was imminent.

On its side, the Ecuadorian government argued that (i) the Colombian government had infringed Ecuador’s national sovereignty as it had (a) bombed Ecuadorian soil, and (b) invaded with infantry Ecuadorian soil, (ii) the attack was under no circumstance an act of self defense, (iii) the required element of imminence was completely lacking, (iv) the Colombian government perpetrated an act of aggression, under international law, and the Rome Statute, that had resulted in the death of at least one Ecuadorian citizen[iv], (v) the Colombian government infringed international law, breached the right of self defense of the Charter of the United Nations, and put at risk international peace and security in the region, and (vi) violated a long pacific tradition between the two countries.

Even though the dispute ended after significant diplomatic efforts of the international community and the OAS, the truth of the matter is that Colombia’s action created an enormous tension in the region, particularly given (a) the affinity between FARC and Hugo Chavez’ (who recently inaugurated a monument in honor of defeated Manuel Marulanda Velez, FARC #1, during more than 50 years), (b) given the fact that Colombia’s secret police had entered into Venezuelan soil in 2005, where it (illegally) arrested  Raul Granda, former international spokesman of FARC, bringing him back secretly and illegally into Colombian territory, where he was tried and convicted for the crime of rebellion, (c) given the fact that several intelligence reports had shown that several important guerrilla leaders were hiding in Venezuela with Chavez’ acquaintance, and (d) it triggered a multibillion dollar arms race between Venezuela and Colombia, that recently aggravated after the announcement of the Colombian and US governments’ signature of a military cooperation agreement.[v]

Notwithstanding the above, I am of the view that the action of the Colombian government was justified. It is a fact that several years ago before the incident, FARC rebels had been taking advantage of the hospitality of neighbor countries in order to hide from operations of the Colombian military, as well as to plan and execute new terrorist attacks over Colombian soil. Those countries had been resilient to combat FARC rebels, and furthermore, had aided FARC rebels in their purpose of defeating the democratically constituted government in Colombia. That behavior of the Ecuadorian and Venezuelan governments’ was unacceptable and violated the Inter-American Convention of Duties and Right of States in Civil Struggles, signed in La Habana, as of February 20, 1928, which was expanded by protocol of May 1, 1957, signed in Washington D.C., imposing on states in its second article the duty to “Disarm… any rebel force that has breached its borders…”

As the governments of the adjacent countries had been complacent in allowing FARC rebels to rest and prepare further military action in their territory, the Colombian government was entitled to attack the camp, provided that it had sufficient elements to argue in favor of the need of such action. The necessity element was present at the time, given two factors. First, the Colombian military was attacked by enemy fire at the moment of the operation, while it was overflying the area, in Colombian airspace, in exercise of its sovereignty right. Second, intelligence units had information about the location and unique opportunity to kill and/or detain FARC #2, one of the most dangerous criminals in the world, who would otherwise inevitably continue his terrorist attacks against Colombian citizens and government. Even if it is true that this would be a broad and new interpretation of “necessity”, I believe it is a perfectly plausible interpretation of the norm.

Furthermore, I believe that pursuant to Resolutions 1368, 1373 and 1378 of the Security Council, the Colombian government had sufficient grounds on international law to execute the bombings, given the similarity of the relationship between Ecuador, Venezuela, and the FARC, with the relationship between the Taliban and Al-Qaeda.  Although the Colombian government was harshly criticized by the OAS’ members, who found that it had breached international law, I think that minimum criticism would have been raised in the context of the SC, which, on the contrary, would have openly endorsed Colombia’s action. Finally, I think that Colombian action was proportional, did not affect third parties, and was justified under the terms on international law and article 51 of the Charter.

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[i] Reyes was FARC #2 at the moment of his death.

[ii] The bombing and death of Raul Reyes catapulted the minister of defense Juan Manuel Santos as the most likely successor of President Alvaro Uribe, with a 57% of popularity, as of March 4, 2010. President’s Uribe popularity reached a 91% (!) peak after more than 6 years in power, after Ingrid Betancourt’s rescue operation in 2008. Uribe’s popularity still today exceeds 70%.

[iii] Incidentalmente, al cumplirse un año de la operación del ejército colombiano contra el campamento de las FARC en Ecuador, el ministro Juan Manuel Santos reivindicó el derecho de su país a defenderse de "los terroristas" aunque no estén en territorio de Colombia. "Golpear a terroristas que sistemáticamente están atentando contra la población de un país, así estos no se encuentren dentro de su territorio, es un acto de legítima defensa y una doctrina cada vez más aceptada por el derecho internacional" dijo Santos (EU 03-03-09, Pág. 1-12). La reacción aquí no tardó en producirse. La cancillería venezolana calificó de "repudiable la actitud prepotente" del Ministro y de "amenaza a la estabilidad y la soberanía" (EU 04-03-09, Pág. 1-16).

[iv] Ecuadorian President Correa asserted that whether that citizen was a person engaged in criminal activities or not made no difference with regard to the unlawful attack.  Furthermore, after forensic examination of the corpse of the Ecuadorian citizen, Ecuador signaled that that person had been extra summarily executed.

[v] Colombia’s argument is that its only aim is to acquire additional arsenal with the intent to fight FARC, and Venezuela’s argument is that it is buying weapons and airplanes to Russia with the sole intention of protection its national security from the threats of aggression of the “empire” and its “puppets”.

Assessment of the UN System of the UN System of Collective Security

                                                                 February 8, 2010

         The activism of the Security Council (SC) of the United Nations (UN) pursuant to the restoration of Kuwait’s territorial integrity after Iraq’s invasion as of August, 1990 (Iraq 1),  remains the watermark of joint enforcement action after the end of the Cold War. However, the unilateralism of the United States (US) pursuant to the 2002-2003 invasion (Iraq 2), and the consequences of the 2002-2003 action inflicted severe harm to the UN peace keeping system.

The straightforward resolution with which the SC originally rejected the invasion of Iraq 1 in 1990 proved to be an effective tool to enforce Iraq’s withdrawal from Kuwait. However, US unilateralism that followed in 2003 became one the watermark cases of violation to the provisions of the UN Charter.

Prior to Iraq 2 the interpretation of resolution 678 (1990) became a matter of disagreement. Its authorization to states cooperating with Kuwait’s government to use force against Iraq, unless such country implemented the mandates of resolution 660 before January 15, 1991, was highly controversial. Originally, several members of the SC did not agree on the terms of such resolution. However, the US promoted what would be the basis of what later came to be known as the coalition of the willing, as an alternative to the SC’s hesitance to engage in further military action against Iraq.

Further, the issuance of resolution 778 in 1992, in Iraq 1, which had “authorized states to seize revenues from Iraqi petroleum sales and transfer them to the escrow account provided for in resolution 706 (1991)”, which the SC enforced for a long time, seemed a broad expansion of the rights of the SC under the UN Charter. But it became even more apparent the lack of compatibility with the Charter when the coalition of the willing took action over Iraqi soil in 2002-2003, violating Iraq’s sovereignty, in detriment of the UN Charter.

In addition, Iraq 2 action took place after the oil-for-food corruption scandal had erupted, triggering a strong international and domestic opposition against the US, the SC, and the UN, due to the corruption of UN’ and US’ officials and contractors. The scandal further supported the theory of the illegitimacy of the sanctions imposed over a sovereign state, let alone the lack of existence of a real and imminent threat, as the final report of UN officials with regard to the lack of existence of weapons of mass destruction proved.

            In conclusion, after Iraq 2 the strength of the UN system was undermined by (i) the broad interpretation that the coalition of the willing gave to the scope and mandate to undertake “all necessary measures” to enforce resolution 660 pursuant to a collective reaction to Iraq 1, (ii) the violation of the right of engaging in military action only in cases of extreme and imminent necessity, and, (iii) a de facto violation to the sovereignty right of a member state. Therefore the UN system was severely hurt, and has been seen since then as an agent without sufficient power to deter conflict, self interest of states, and safeguard peace.

Weapons of Mass Destruction and Preemptive Self Defense

January 29, 2010

Admitting that a state can use preemptive self defense in cases of traditional terrorism[1] would equal to accept the death of international law and jus ad bellum, thus transforming an exceptional rule of international law into a permanent one. Further, admitting that a state is entitled to use preemptive self defense in cases of terrorism attempting to use weapons of mass destruction (WMD) is a statement based on false premises.[2]

It is obvious that as an internal policy matter a state should exercise preemptive self defense if its citizens are under a real threat of imminent attack with WMD by terrorists. Notwithstanding the advantages that invoking a preemptive self defense strategy can have for a state from a realist and power politics perspective, I believe, however, that an attack of the nature it supposedly aims to prevent is very unlikely to occur for two basic reasons: motives and capability.

First, with regard to the motives, it is unlikely that a terrorist attack with a WMD fits the purposes, objectives, goals and motivations of a terrorist group. I believe that a terrorist organization thinks more in tactical terms than in highest-destruction-possible terms. Total destruction projects are too costly and misleading with regard to the aims of such organizations. Terrorist organizations don’t simply kill people; they kill people with a purpose, no matter how stupid that purpose might be.

Second, it doesn’t seem plausible that a terrorist group can build and detonate a WMD. Several challenges lay ahead them, such as obtaining enriched uranium, plutonium, or any other required materials. Also, it is not likely that a terrorist group will count with the human capital necessary to build such type of device. Further, it is not possible to learn to fabric nuclear bombs in magazines. Access to that type of information is difficult, and requires a huge effort. I think that terrorists’ utterances declaring their intention to acquire WMD are more likely part of their verbal terrorist warfare, than a real and imminent threat.

It can be argued, contrary to my analysis, that a terrorist attack is almost inevitable, and that sooner or later it will come. Notwithstanding the unlikeliness of that possibility, it is, nevertheless, possible. If that is the case, what are we going to do about it? Going to war with any particular country will not prevent the attack, unless it is absolutely clear that a rogue state is sponsoring a terrorist organization in the construction of WMD. If that were proven with evidence beyond reasonable doubt, then it is the United Nations’ Security Council who should act, and not a particular state invoking article 51, as there is no extreme necessity situation in that case, and as, the Security Council could act within its powers in the pursuit of the disarmament of the rogue state.

Therefore, I think that the White House defense of the right of preemptive self defense is flawed and cannot be enforced without a fundamental violation of international law.

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[1] By this I mean terrorism without a threat of using WMD.

[2] A different case is a situation where an imminent attack can trigger the self-defense right under the anticipatory self-defense doctrine. Preemptive self-defense and anticipatory self-defense must not be confused. Preemptive self-defense does not require the imminence element that anticipatory self-defense does require.

Preemptive Self Defense Under Article 51 of the UN Charter

January 25, 2010

Article 51 of the Charter of the United Nations expelled the right of preventive self defense from international law, if we are to say that it existed in customary international law before the adoption of the Charter. The syntax, grammar, intention and purpose of the article are clear prima facie. No country is entitled to exercise violence against other unless it is under armed attack of other.

The difficulty, however, resides in defining the initial moment of the armed attack, as well as the reach and scope of the action to which the attacked state is entitled. This has led to innumerable disputes and controversies. Yet, even the broader interpretations under this first interpretation would not admit preemptive self defense.

Notwithstanding the above, I believe it plausible to defend a different interpretation, which I nevertheless do not find convincing. According to this interpretation, the Charter does not preclude the right of self defense that preexisted to the enactment of the Charter.

This second interpretation finds its justification in what I would call a strong and power politics reading of the term inherent used in article 51. According to this reading, states have an inherent right to self defense, which, therefore, cannot be renounced. Using an analogy, just as 17^th and 18^th century contractualist philosophers contended that the parties to the social contract did not renounce to certain natural rights, such as the right of self preservation, in the context of contemporary international law it could be argued that states could not renounce to their right to self defense.

Furthermore, the trick of this argument is to assert that before the adoption of the Charter, states had a right to preemptive self defense, as a form of the more general right to self defense, under international customary law. This argument is, however, not convincing for two reasons.

First, it is unclear that under customary international law states have had a right to preemptive self defense. No historical or legal arguments seem to support such a conclusion. However, I do agree that middle point cases, such as those involving the need of anticipatory self defense, in the sense of the Caroline Doctrine, would be in the border line of an acceptable and reasonable interpretation of article 51.

Second, and most importantly, admitting the inherent right interpretation is counterintuitive as it randomizes the existence and stability of the United Nations itself, and therefore the pacta sunt servanda principle. The purpose of the United Nations was precisely to prevent violence and war, and to preclude jus ad bellum from the discretionary interpretations of states that, under almost any argument could “elaborate” arguments in order to “prove” supposed threats to their national security that would justify preemptive military action.

In conclusion, I believe that the inherent interpretation theory has simply gone way too far and endangers the integrity and strength of the United Nations system.