The Regulation of International Coercion Legal Authorities and Political Constraints

NAVAL WAR COLLEGE NEWPORT PAPERS 25 N A The Regulation V AL of International Coercion W AR COLLEGE Legal Authorities and Political Constraints NE WPOR T P AP ERS N ES AV T A A L T W S A D R E C T I O N L L U E E G H E T R I VI IBU OR A S CT MARI VI 25 James P. Terry Color profile: Disabled Composite Default screen Cover Preparations for evening flight operations on board the aircraft carrier USS Harry S. Truman (CVN 75) in March 2005. U.S. Navy photo by Photographer’s Mate Airman Ryan O’Connor. T:\Academic\Newport Papers\Newport Paper Terry\Printer\NPTerry.vp Friday, October 28, 2005 2:19:15 PM Color profile: Generic CMYK printer profile Composite Default screen The Regulation of International Coercion Legal Authorities and Political Constraints James P. Terry © 2005 by James P. Terry NAVAL WAR COLLEGE PRESS Newport, Rhode Island T:\Academic\Newport Papers\Newport Paper Terry\Printer\NPTerry.vp Friday, November 04, 2005 10:58:10 AM Color profile: Disabled Composite Default screen Naval War College The Newport Papers are extended research projects that the Newport, Rhode Island Editor, the Dean of Naval Warfare Studies, and the Center for Naval Warfare Studies President of the Naval War College consider of particular Newport Paper Twenty-five interest to policy makers, scholars, and analysts. October 2005 The views expressed in the Newport Papers are those of the authors and do not necessarily reflect the opinions of the President, Naval War College Naval War College or the Department of the Navy. Rear Admiral Jacob L. Shuford, U.S. Navy Correspondence concerning the Newport Papers may be Provost/Dean of Academics addressed to the Editor of the Naval War College Press. To Professor James F. Giblin, Jr. request additional copies, back copies, or subscriptions to Dean of Naval Warfare Studies the series, please either write the President (Code 32S), Dr. Kenneth H. Watman Naval War College, 686 Cushing Road, Newport, RI Naval War College Press 02841-1207, or contact the Press staff at the telephone, fax, or e-mail addresses given. Editor: Dr. Carnes Lord Managing Editor: Pelham G. Boyer Telephone: 401.841.2236 Fax: 401.841.1071 DSN exchange: 948 E-mail: [email protected] Web: www.nwc.navy.mil/press Printed in the United States of America ISSN 1544-6824 T:\Academic\Newport Papers\Newport Paper Terry\Printer\NPTerry.vp Friday, October 28, 2005 2:19:16 PM Color profile: Disabled Composite Default screen Contents Foreword, by Carnes Lord v Introduction 1 PART ONE: THE CHANGING NATURE OF THE THREAT TO NATIONAL SECURITY 5 CHAPTER ONE Customary Law: The Relationship between Law and the Use of Force 7 CHAPTER TWO The Minimum World Order System 11 PART TWO: LESSER CONFLICT 25 CHAPTER THREE Humanitarian Intervention 27 CHAPTER FOUR Defense of U.S. Nationals: Intervention in Panama 41 CHAPTER FIVE Response to International Terrorism 51 PART THREE: MAJOR CONFLICT 77 CHAPTER SIX Operation DESERT STORM 79 CHAPTER SEVEN Operation IRAQI FREEDOM 93 PART FOUR: U.S. POLICY FOR PEACE OPERATIONS 107 CHAPTER EIGHT The Development of Criteria for Peace Operations 109 CHAPTER NINE The Role of Regional Organizations in Peace-Enforcement Operations 117 T:\Academic\Newport Papers\Newport Paper Terry\Printer\NPTerry.vp Friday, October 28, 2005 2:19:16 PM Color profile: Disabled Composite Default screen IV THE NEWPORT PAPERS PART FIVE: CHALLENGES FOR THE TWENTY-FIRST CENTURY 123 CHAPTER TEN Defense of Critical Infrastructure: Computer Network Defense 125 CHAPTER ELEVEN Attacks on Foreign Infrastructure That Pose a Threat to the United States: Computer Network Attack 135 Observations and Conclusions 145 About the Author 147 The Newport Papers 149 T:\Academic\Newport Papers\Newport Paper Terry\Printer\NPTerry.vp Friday, October 28, 2005 2:19:16 PM Color profile: Disabled Composite Default screen Foreword The study of international law has been an element of the curriculum of the Naval War College since the founding of the College, and it was to fill the need for textbooks fo- cusing on practical, law-related naval issues that the College published its first book, in 1895. That work—a collection of edited and expanded lectures given in Newport by Freeman Snow, professor of international law at Harvard, published as International Law: A Manual Based upon Lectures Delivered at the Naval War College—was seminal in two ways. First, it was for its compiler, Commander Charles Stockton of the Naval War College’s faculty, that the College’s prestigious chair in international law is named. Sec- ond, the book itself, which was soon canonical, was the forerunner of the International Law Series, of which seventy-nine volumes by, or collecting the work of, major scholars have appeared, with more in preparation. The Naval War College Review in its time took up the challenge. In the May 1949 issue (Information Service for Officers, as it was first known, having been founded only in Oc- tober 1948), its editors published “Legal Foundations of International Relations,” by Manley O. Hudson. At this writing, the index of the journal contains seventy-one en- tries under the heading “International Law,” and the continual flow of manuscripts from international lawyers testifies that the Review is well established in that field. It is no surprise, then, that when the Naval War College Press established the Newport Pa- pers monograph series in the early 1990s, international law quickly found a place there. The third Newport Paper, published in October 1992, was Horace B. Robertson, Jr.’s, The “New” Law of the Sea and the Law of Armed Conflict at Sea; the eleventh, by Frank Gibson Goldman, was The International Legal Ramifications of United States Counter- Proliferation Strategy: Problems and Prospects (April 1997), and number fifteen was In- ternational Law and Naval War: The Effect of Marine Safety and Pollution Conventions during International Armed Conflict, by Dr. Sonja Ann Jozef Boelaert-Suominen (De- cember 2000). So it is with particular satisfaction that we sustain that commitment with this New- port Paper, the twenty-fifth in the series, and the first of our 2006 program. James P. Terry—a former Principal Deputy Assistant Secretary and Deputy Assistant Secretary of State; former legal counsel to the chairman of the Joint Chiefs of Staff, then General Colin Powell; a retired colonel, U.S. Marine Corps; and today chairman of the Board of Veterans’ Appeals, in the Department of Veterans Affairs—is familiar to Press sub- scribers as the author of four articles (going back to 1986) in the Review. In The T:\Academic\Newport Papers\Newport Paper Terry\Printer\NPTerry.vp Friday, October 28, 2005 2:19:16 PM Color profile: Disabled Composite Default screen VI THE NEWPORT PAPERS Regulation of International Coercion Colonel Terry has undertaken a major task, an assessment—from a U.S. policy perspective and in an international-law framework— of “representative instances where force has recently been used in international relations, the circumstances under which it was used, the instructive international policy and legal constructs that can be applied, and the relationship of these policies to the minimum world order system established in . the United Nations Charter.” He is em- inently fitted to meet the challenge, and the value of his argument befits the century- long tradition of publishing in international law at the Naval War College. CARNES LORD Editor, Naval War College Press Newport, Rhode Island T:\Academic\Newport Papers\Newport Paper Terry\Printer\NPTerry.vp Friday, October 28, 2005 2:19:17 PM Color profile: Disabled Composite Default screen Introduction The most significant discourse about serious threats to U.S. national security in the twenty-first century will likely concern the military capabilities and intentions of nonstate actors, acting either for themselves, for religious elites, or as surrogates for state sponsors. This preoccupation results not from any inordinate fear of “terrorism” but from a recognition of objective military and political realities. While prior to 1991 only the Soviet Union possessed the capacity to inflict catastrophic military destruction on the United States, today that threat is vested in terrorist cells and religious sects that seek to destroy the fabric of the United States through unconventional military and paramilitary means. The terrorist attacks of 11 September 2001 bear this out. During the Cold War, the major threat to the United States was clearly the fear of miscal- culation by the Soviets. Today, that threat has been recharacterized in terms of deliberate aggression against the United States by nontraditional actors willing to take suicidal risks to inflict premeditated, brutal savagery on innocent civilians in a manner designed to force not so much regime change directly as policy changes that affect regime change. Commitment to national security is only as valid as the policies and plans, military, economic, and political, that shape the areas and people from which these threats origi- nate. The problem always has been to determine which policies, and how applied, make the greatest contribution to countering the threat—a threat now represented by social and religious systems that foster or at least condone aggressive response to differing religious and social values. This has never been more true than in Afghanistan and in Iraq. Security, then, means more than simply protecting the land on which we live; it embraces a comprehensive understanding of the appropriate response to human aspi- rations for improved conditions of life, for equality of opportunity, and for justice and freedom. Where these interests are thwarted for peoples or groups within a particular state or region by armed protagonists representing narrow, restrictive interests, our response must be one measured by the effective institutionalization of order.

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