The United Nations Charter is the one authoritative source of international law regulating the use of force. Since the 9/11 attacks that inaugurated the ‘war on terror’, scholars and countries such as the United States have sought to develop a new legal framework that would essentially justify an expanded version of self-defence. Below, Antony Anghie examines this framework and suggests that it serves to reproduce certain colonial structures that appear to be deeply embedded in both international law and international relations.
The United Nations Charter is the one authoritative source of international law regulating the use of force. The 9/11 attacks that inaugurated the ‘war on terror’ prompted the claim that the law of the Charter was obsolete because it was intended to deal with conflicts between states, the principal actors in the international system, and not non-state actors such as Al Qaeda. A novel situation has arisen; the old law of the UN must be appropriately adapted to deal with these new threats, or else, a new legal framework must be established: this in general is the argument made, not only by scholars but powerful countries such as the United States which, through successive administrations, has sought to develop new doctrines that would essentially justify its approach to the ‘war on terror’. The resulting framework – I present a tentative version here because debates as to its character are ongoing – is based on the paramount importance of self-defence; it profoundly challenges a body of law, relating to sovereignty, self-defence, human rights, and the use of force that has been carefully and laboriously constructed over the past decades through the auspices of the UN and various other related institutions. In this paper I examine this new framework first, in terms of how it seeks to amend or reinterpret existing principles restricting the use of force, second, its underlying vision of war and violence and third, I suggest ways in which this framework serves to reproduce certain colonial structures which appear to be deeply embedded in both international law and international relations.
Self-Defence and the UN Charter
Under the UN Charter, force is permitted only in two circumstances: first, when the use of force has been authorised by the Security Council acting under Chapter VII and second, under section 51 of the Charter a state which has been the victim of an ‘armed attack’ may respond by using force in self-defence. These basic principles are supported and complemented by a number of other customary rules. For instance, the use of force must be proportional to the injury suffered. Further, territorial restrictions are imposed on the use of force: it is impermissible under international law to wage war in the territory of a state which is not strictly party to the conflict for that would violate the sovereignty of the attacked state. Finally, a relatively clear boundary existed between ‘peace’ and ‘war’; wars were usually brought to an end by some sort of treaty, peace was restored, and this enabled the different legal regimes of peace and war to operate with clarity.
Crucial to this framework is the question of the scope of the right of self-defence. The Charter recognises the fundamental, indeed primordial character of self-defence by stating that ‘nothing in the present Charter impairs the inherent right of self-defence’. The right, in other words, precedes the Charter, even if the Charter attempts to limit the circumstances in which that right is exercised. The potency and primacy of the right of self-defence is suggested by the fact that the International Court of Justice left open the possibility that a state could use nuclear weapons in self-defence-this despite the catastrophic global consequences that would most likely follow. It is notable further, that both the Non-proliferation Treaty and the Chemical Weapons Convention explicitly permit a member state to withdraw from the treaty if ‘extraordinary events’ occur and upon giving due notice-as North Korea did with the Non-Proliferation treaty. One way to understand this apparently anomalous provision is that it recognises that the inherent right of self-defense possessed by all states will only be meaningful if they have a concurrent right to develop and use whatever weapons are available for that purpose.
Proposals to Amend or Reintepret the Law
Following the 9/11 attacks, the United States argued that the traditional idea of self-defence had to be radically altered in order to meet the threats posed by non-state actors and the proliferation of weapons of mass destruction. Simply presented, the US positions formulated by President Bush and in some ways extended by President Obama, have challenged three basic principles of the existing and traditional law of war. First, President Bush’s argument for pre-emptive self-defence (PESD) suggests that force can be used, not only against any ‘imminent’ threats (international lawyers regard this generally as permissible if the need for such action is ‘instant and overwhelming’) but also against an ‘emerging’ threat. The shift of vocabulary to ‘emerging threats’ expands enormously the range of circumstances in which force may be justified. In effect, the United States assumes the status of a ‘super sovereign’, one that asserts a right to take action against any other state which it perceives as a threat, perhaps even if that state is acting within its legal rights.
While the Obama administration has sought to distance itself from aspects of the Bush administration’s policy, its posture towards Iran seems to be animated by a similar vision of pre-emption. Second, President Obama’s own approach to the war on terror, the escalation of drone attacks, raises a number of complex legal issues regarding for instance the human rights of the target, civilian deaths and ‘collateral damage’, and the sovereign rights of the country where the attack has been carried out. The United States has conducted attacks in the territory of a state with which it is not at war, Pakistan. If such actions are legal on the basis that it is a valid exercise of self-defence, then the classic territorial limitation on war will be correspondingly undermined. In short, a state may attack an individual in any territory if it believes that this individual is somehow implicated in an attack or even a planned attack on the state.
Great uncertainty and debate exists about strategic value and the number of civilians killed in such attacks, not only because of the secrecy surrounding drone attacks, but because the crucial distinction between civilians and combatants has been blurred as a result of the ‘war on terror’. Further, the clear boundary that existed between war and peace and that enabled the coherent operation of the different legal regimes applicable to each situation has been also confused. It is uncertain when it could be claimed that an international network such as Al-Qaeda has been finally defeated. The death of Bin-Ladin did not result in the end of the ‘war on terror’. As a consequence, it seems that the US is now engaged in an endless war. The paradox is that while President Obama is intent on shifting away from the concept of a ‘global war on terror’ his policies, the NSA program, and the legal justifications presented for them, expand the sovereign reach of the United States, regardless of international law or norms. This is the point made not only by rivals to the US, but by allies such as Dilma Rousseff in her public reprimand at the UN of US spying policies.
Each of these developments, had they taken place in isolation, would have significantly changed the laws of war; but in combination, they endorse a framework that would greatly expand the justifiable use of force. For instance, if an individual can be a legitimate target of a drone attack in another country because he or she is suspected of being involved in or planning an attack (again, the idea of pre-emption affects a whole range of issues) then force can be employed far more readily against a much larger range of targets. A High-level United Nations panel asserted in 2004 that the existing law of war was sufficient to deal with terrorist threats. Nevertheless, proposals that effectively ease restrictions on the use of force have continued to proliferate-in journals, among academics, and in statements made by senior figures in the US and other administrations who claim a particular authority by virtue of the fact that they are especially attuned to the ‘operational realities’ confronting military and intelligence personnel. These visions of the law are not merely academic: they are often presented as the views of powerful states as to the relevant and binding law. Thus President Bush claimed that the right of pre-emption was derived from customary principles that predated the UN Charter and could be found in the writings of the great international law scholars. Problematically, in a dispersed international system, it is often difficult for an authoritative international body to adjudicate those claims, however controversial. Further, if those views of the law are consistently acted upon by states-and especially powerful states-then an argument can be made, and has been made, that they have in effect become the customary rule which either replaces an earlier law or represents the authoritative interpretation of provisions in a treaty, such as the UN Charter.
Colonialism, Sovereignty and the War on Terror
This attempt to rewrite the established laws of war has been vigorously challenged by lawyers and scholars and UN bodies on a number of grounds. My concern here is not only the impact of these proposals on the laws of war but their potential impact on Third World states and peoples. For scholars belonging to the Third World Approaches to International Law (TWAIL) tradition, this initiative to transform the law of war is entirely familiar: powerful Western states which possess the formidable intellectual resources to do so articulate legal frameworks conveniently suited to their interests and vision of the world. This is reminiscent of the nineteenth century when the great associations and journals of international law and the personages in the discipline, were all enthusiastic promoters of the cause of empire and civilisation.
If law is a technology, one that in this case enables the broader use of violence-a better, updated, more sophisticated and elaborate model of self-defence, whether in the form of enabling what many would call torture, or locking up of people without ever properly charging them, or deploying drones against ‘terrorists’ in foreign territories-it is a technology that is being created by superbly qualified expert lawyers. The most prominent feature of this technology is that all this is achieved through a deft manipulation of the enabling and justifying language of the law never as a departure from it.
The doctrines I have outlined here, particularly pre-emption, although presented in the language of the law, in effect seems to endorse an endless war with little effective legal restraint on the use of force. In this regard, it resembles the system that existed in the nineteenth century, when recourse to force was legal, and only political factors, such as the balance of power, inhibited recourse to war. Further, nineteenth century European colonial powers conducted brutal wars against non-European states arguing that the non-European armies and peoples were not covered by the laws of war as they were ‘uncivilised’. Nineteenth century international law was intent on eliminating the ‘savage’ in very much the way that the US framework is directed at the lawless ‘terrorist’. As Eldon Colby observed in a famous article written in 1927, a paen to methods of colonial warfare, ‘In fact, among savages, war includes everyone. There is no distinction between combatants and non-combatants. Whole tribes go on campaign’.1 Colby therefore approved of the bombing of these tribes; no restrictions were imposed on the violence that could be deployed against such savages. The war on terror then, shares many features with colonial wars in that established legal doctrines are revised in each case to justify the expanded use of violence.
Nineteenth century jurisprudence was based on a system of basic inequality, one in which ‘civilised states’ were deemed sovereign while uncivilised states lacked sovereignty. It is a fundamental principle of modern, decolonised international law that all sovereign states are equal. Consequently, any change in the laws of war would apply to all states. However, it is clear, when examining a doctrine such as pre-emptive self-defence, that, even though articulated in universal terms, it is only powerful states that would in reality enjoy such a right. Whatever the ‘right’ Iran may have to attack the United States pre-emptively-on the basis that it has been characterised as a member of the axis of evil and that the United States has made it plain that it will be prepared to use force against Iran’s development of nuclear capacities-it is hardly likely to exercise it.
Some of the proposals legally justifying drone strikes further entrench these divisions as they are conducted essentially in developing countries. Under the traditional law, drone strikes aimed at individuals located in the territory of a foreign state clearly violate the sovereignty of that state unless it has consented to such action. In order to overcome the problem of a non-consenting state, lawyers have been articulating a novel doctrine of ‘unwilling or unable’. That is, a state that is deemed to be ‘unwilling or unable’ to neutralise and surrender an accused individual can then be the legitimate object of a drone attack. Similarly, it has been argued that consent may be ‘implied’ or else, be entirely unnecessary if the state in question could be characterised as ‘harboring or colluding with’ the actor or group in question. These arguments depart from the traditional position that a state must be actively supporting-rather than ‘harboring’-an entity that may be causing harm to a neighboring state before it can be legitimately subjected to force. The colonial encounter has produced a massive jurisprudence directed towards constructing non-European entities as ‘consenting’ and the recent arguments bear a striking resemblance to those predecessors.
All these developments together with interventions in Iraq and elsewhere, the recurrent language of uncivilised ‘rogue states’ and the attempts to transform them by force into civilised ‘democratic states’ might suggest a return to an earlier imperial time, one when the use of force was legal, when a few states assumed for themselves the role of furthering the cause of humanity, and in which the system was based on distinctions between two models of sovereignty, that possessed by superior, civilised states and inferior uncivilised states which possessed a lesser and compromised version that was subject to continuous intervention.
However, this perspective should not obscure the equally important point that very often both models of sovereignty, in their contemporary version, share important characteristics. President Obama is quite right in condemning President Assad for hiding behind the ‘shield of sovereignty’ while committing atrocities against his people. However, the preoccupations of Presidents Bush and Obama to protect American sovereignty have also had some devastating consequences for the people of Iraq and Afghanistan. While smaller states may not have the power to attack suspected terrorists in the territories of other states, they may still demonstrate and exercise their sovereign power over their own populations, over dissidents and minorities. In these circumstances, the US arguments of preemption, that security is paramount, that the terrorist threat is so compelling that the military force and presence is ongoing and necessary to prevent its re-emergence, that no clear distinctions can be made between terrorists and civilians are all arguments that many developing states, particularly those run by authoritarian governments, would find very attractive and useful.
And while they condemn imperialism, these authoritarian governments make arguments that are in essence very similar to those of the US or indeed, of colonial powers putting down native uprisings. Just as drone technology and its justifications developed by the US may be used by governments against their own peoples, the legal doctrines developed by the US may find their way to other quarters. Many authoritarian governments, including Syria, are claiming to engage in their own ‘war on terror’2. The issue is not so much whether such claims are justified, but rather, the fact that these arguments and doctrines can be used in unexpected ways. The alternative is to assert that only ‘civilized’ states can properly and judiciously utilize these advanced legal technologies of violence.
Given the number of attacks that civilians have been subjected to, the need for a new approach to rights and security is understandable. But the further and entirely predictable point is that a public that was initially willing to accept these security measures believing they would be used only against extremists and terrorists now find themselves the victims of some of those measures. Thus the attempts to protect sovereignty have often profoundly undermined the rule of law and the sovereignty of the people themselves. These two models of sovereignty may be seen then, not so much as contrasting but complementary. The irony then, is that they obscure both their similarities and their dominance of the political landscape by an exchange that consists of charges of ‘imperialism’ on the one hand and ‘dictatorship’ on the other. The challenge remains then, of rejecting these alternatives, and continuing to develop a system of international law that protects basic human rights and vests sovereignty in the people.
About the Author
Antony Anghie is the Samuel D Thurman Professor of Law at the S.J. Quinney School of Law, University of Utah, Salt Lake City. He teaches and researches in the area of public international law, human rights and international economic law. He is the author of ‘Imperialism, Sovereignty and the Making of International Law’ (Cambridge University Press, 2005) and is a member of the Third World Approaches to International Law (TWAIL) network of scholars.
1. Colby, E. How to Fight Savage Tribes, 21 American Journal of International Law 280 (1927) p. 279 at 281
2. See New York Times, September 30, 2013, `Invoking September 11, Syrian Accuses US of Hypocrisy’.