International Legality, the Use of Military
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Pace Law Review Volume 30 Issue 2 Winter 2010 Article 18 January 2010 International Legality, the Use of Military Force, and Burdens of Persuasion: Self-Defense, the Initiation of Hostilities, and the Impact of the Choice Between Two Evils on the Perception of International Legitimacy Geoffrey Corn South Texas College of Law Dennis Gyllensporre Swedish Army Follow this and additional works at: https://digitalcommons.pace.edu/plr Part of the International Law Commons, Military, War, and Peace Commons, and the National Security Law Commons Recommended Citation Geoffrey Corn and Dennis Gyllensporre, International Legality, the Use of Military Force, and Burdens of Persuasion: Self-Defense, the Initiation of Hostilities, and the Impact of the Choice Between Two Evils on the Perception of International Legitimacy, 30 Pace L. Rev. 484 (2010) Available at: https://digitalcommons.pace.edu/plr/vol30/iss2/18 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. International Legality, the Use of Military Force, and Burdens of Persuasion: Self-Defense, the Initiation of Hostilities, and the Impact of the Choice Between Two Evils on the Perception of International Legitimacy Geoffrey Corn and Dennis Gyllensporre. In 1967, Israel faced a genuine strategic dilemma produced by the intersection of self-interest and international law defining the permissible authority for the use of military force. Associate Professor of Law at South Texas College of Law. Prior to joining the faculty at South Texas, Mr. Corn served as the Special Assistant to the U.S. Army Judge Advocate General for Law of War Matters, and Chief of the Law of War Branch, U.S. Army Office of the Judge Advocate General International and Operational Law Division. Mr. Corn also served as a member of the U.S. Army Judge Advocate General‘ Corps from 1992-2004. Previously, he was a supervisory defense counsel for the Western United States; Chief of International Law for U.S. Army Europe; and a Professor of International and National Security Law at the U.S. Army Judge Advocate General‘s School. Mr. Corn has served as an expert consultant to the Military Commission Defense team, and has published numerous articles in the field of national security law. He is a graduate of Hartwick College and the U.S. Army Command and General Staff College, and earned his J.D., highest honors at George Washington University and his LL.M., distinguished graduate, at the Judge Advocate General‘s School. He frequently lectures on law of war and national security law topics. Dennis Gyllensporre is colonel in the Swedish Army, currently serving as Chief Executive Officer at the Swedish Armed Forces Headquarters in Stockholm. He is also PhD fellow at the Maastricht Graduate School of Governance, the Netherlands. Recent assignments include: Chief of Staff at Regional Command North, ISAF, Mazar-e-Sharif, Afghanistan; Chief of Doctrine and Concepts Branch, European Union Military Staff, Brussels, Belgium; Chief Operations Officer, Joint Military Commission, Tillo, Sudan; and Military Adviser at the Ministry of Defense, Stockholm, Sweden. He holds a master‘s degree in Military Arts and Science from U.S. Army Command and General Staff College and a MBA degree in Strategic Management from Warwick Business School, United Kingdom. 484 1 2010] INTERNATIONAL LEGALITY 485 With mounting evidence that a coordinated attack by its Arab neighbors was imminent,1 Israel confronted a truism in international law: the prima facie illegality of any initiation of armed hostilities absent authorization by the United Nations (―U.N.‖) Security Council.2 Constrained by the obligation to conform its conduct to the use-of-force legal framework enshrined in the U.N. Charter,3 Israel was ultimately required to choose between two legal courses of action. It could have presented the evidence of the imminent attack to the U.N. Security Council in an effort to obtain international sanction and perhaps assistance in preventing the attack; or, as it ultimately chose to do, it could have invoked the inherent right of self-defense codified in Article 51 of the Charter and thus act unilaterally to defend itself from what it concluded was an imminent attack.4 Neither of these options was especially desirable for Israel from the perspective of international legitimacy. Ideally, a state in Israel‘s position would choose the first option, a decision consistent with the fundamental international legal prohibition against aggressive use of force and the underlying purpose of the U.N. Charter: the prevention of war through the mechanism of the Security Council‘s collective process.5 Israel‘s decision to act unilaterally6 and to confront the almost inevitable international approbation produced by a potentially 1. See AVI SHLAIM, THE IRON WALL: ISRAEL AND THE ARAB WORLD 237-38 (2000). 2. See, e.g., YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 182 (4th ed. 2005) (―the general prohibition of the use of inter-State force . [is] part and parcel of customary international law, as well as the law of the [U.N.] Charter‖). 3. ―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.‖ U.N. Charter art. 39. See also MARY ELLEN O‘CONNELL, INTERNATIONAL LAW AND THE USE OF FORCE 223-25 (2005) (discussing Article 39). 4. Article 51 of the U.N. Charter states, in pertinent part, that ―[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations . .‖ U.N. Charter art. 51. See also O‘CONNELL, supra note 3, at 226 (discussing Article 51). 5. See DINSTEIN, supra note 2, at 278-83 (defining collective process, or ―collective security,‖ as well as discussing its origin). 6. See SHLAIM, supra note 1, at 241. https://digitalcommons.pace.edu/plr/vol30/iss2/18 2 486 PACE LAW REVIEW [Vol. 30:2 invalid invocation of the right of self-defense reveals, however, a perceived delta between the ideal and the geostrategic reality of the U.N. collective security process. In the end, Israel chose to accept the burden of rebutting the presumption that a unilateral initiation of armed conflict is illegal, and to stand on its belief that the pre-emptive strike that initiated the Six Days War was a lawful act of self-defense.7 Six years later, Israel once again faced mounting evidence of an imminent, coordinated attack from its Arab neighbors.8 Unlike 1967, however, the price of fighting the international legitimacy struggle at this time outweighed the perceived strategic value of a pre-emptive strike. As a result, Israel prepared for the inevitable and chose to forgo the military advantage that initiating hostilities would have undoubtedly offered.9 On Yom Kippur in 1973, the coordinated attack predicted by Israeli intelligence became a reality, and Israel‘s decision to avoid the difficult challenge of fighting against not just a battlefield enemy, but also the presumption of international illegitimacy, very nearly led to a military and strategic catastrophe.10 Nonetheless, Israel reaped virtually no benefit by attempting to claim the high ground of legitimacy and by waiting to become the victim of actual aggression. Instead, the collective security mechanism of the U.N. remained stalemated and Israel once again fought alone to achieve its strategic objective—only this time, by also having handed to its enemies precious operational initiative.11 When confronting subsequent threats, and equipped with the experience of pursuing both options, Israel saw little merit in foregoing a preventive self-defense legal strategy. Thus, in 1981, when the nation once again faced an imminent threat, 7. Id. at 241-42. See also DINSTEIN, supra note 2, at 192 (arguing that ―Israel did not have to wait idly by for the expected shattering blow . but was entitled to resort to self-defence as soon as possible‖). 8. See SHLAIM, supra note 1, at 319 (noting that Israel ―had exceptionally detailed and precise information about the military capabilities and operational plans of the enemy‖). 9. Cf. id. (arguing that, rather than choosing to forgo the initiation of hostilities, Israel simply failed to anticipate the attack because its intelligence branch misread the available information). 10. See id. (―Military history offers few parallels for strategic surprise as complete as that achieved by Egypt and Syria . [T]he Arab attack represented not just an intelligence failure but, above all, a policy failure.‖). 11. See id. at 318-19. 3 2010] INTERNATIONAL LEGALITY 487 Israel asserted the provisions of Article 51 to justify airstrikes against an Iraqi nuclear facility.12 This pattern has continued as the legal basis for virtually all military actions launched by Israel since 1973. Thirty years later, the United States faced a similar dilemma. Convinced that Iraq was developing and stockpiling weapons of mass destruction (―WMD‖), and that those weapons could easily end up in the hands of transnational terrorists for use against the U.S. homeland, President George W. Bush concluded that military action to eliminate the regime of Saddam Hussein was essential to protect the nation.13 In retrospect, it is almost universally accepted that once he concluded that this threat existed, war against Iraq became inevitable.14 What was not inevitable, however, was that the U.N. Security Council would sanction such action under the authority of Chapter VII of the Charter.