Caroline postcard

As intlawyers well know, a foundation of contemporary rules regarding the use of force is the Caroline affair.

As posted, U.S.-Britain negotiations more than 170 years ago articulated a concept of "anticipatory self-defense," subject to conditions of necessity and proportionality.

Perhaps less well known is the underlying incident.

Spurring the diplomatic exchange of notes was 1837 unrest in Canada, then a British colony. Anti-British rebels encamped at Navy Island in the middle of the Niagara River, which marks the U.S.-Canada border. Rebel night-raids of Britain's Canadian forts prompted Britain to seize the Caroline, a rebel vessel. They torched it and set it loose; it broke up in the rock-strewn rapids. Eventually, what was left of the Caroline went over the Niagara Falls.

Hence this post-card: photos of those rapids and falls made on a lovely summer Sunday, en route to the 4th Annual International Humanitarian Law Dialogs at Chautauqua, New York, about which more to come.

Rejecting the Supposed Right of Anticipatory Self-Defence

(In this guest post Valerie Epps discusses her article recently published at Northeast Asian Law Review 1 (2008) and available here)

During the spring semester 2008, I taught international law and human rights at Hongik University College of Law in Seoul, South Korea, as a visiting professor. During the semester, Professor Lyou Byang Woon organized a conference on various aspects of the laws of war and asked participants to contribute an article to Hongik's law review. This article was the result.

Ever since the administration of former U.S. President George W. Bush announced the “preemption” doctrine as one of what was to become many attempts to justify the U.S. invasion of Iraq, I had been surprised that virtually all, if not all, of the criticisms of preemption had, nevertheless, accepted the doctrine of anticipatory self-defence. I have never been happy with anticipatory self-defence for all of the usual reasons:

► It doesn’t comport with the language of Article 51 of the Charter of the United Nations, which states:

Nothing 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, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

► I don’t believe the Caroline doctrine (prior IntLawGrrls posts) in fact accepts anticipatory self-defence.

► I don’t think that Article 51's reference to the “inherent” right of self-defence was meant to incorporate anticipatory self-defence into the Charter.

► The doctrine cannot satisfy necessity or proportionality requirements of self-defence.

… And so on.

But more than all of these well-worn arguments, I had become convinced that the decisions of the International Court of Justice (logo at left) in the Nicaragua, Oil Platforms, and DRC cases, although not discussing anticipatory self-defence, practically ruled it out by implication. Those three cases all interpreted Article 2(4) of the Charter, which states:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

In each case the ICJ held that even if a state suffers an illegal use of force against it by another state that violates Article 2(4), the victim state does not get a right of self-defence unless the use of force reached a certain level in gravity and scale. In other words, even suffering low-level uses of armed force doesn’t give rise to a right to self-defence.

If that is so, I thought, how could a state that had not yet suffered any use of force against it possibly have a right of self-defence?

This logic led me to investigate language of the Charter and the commentary of scholars contemporary with its drafting. I was not surprised to discover that most of them were quite clear that the Charter meant to prohibit anticipatory self-defence.

The article examines the pre-Charter law on the use of force; the drafting and language of the Charter and the international legal cases that address self-defence. I conclude that international law prohibits anticipatory self-defence, and thus leaves no doubt that the use of preemptive force is illegal.

Somalia airstrikes and the bounds of law

(Over at Slate's Convictions blog there's been a discussion in recent days about the propriety of U.S. airstrikes in Somalia. Phillip Carter started the conversation. Deborah Pearlstein responded and invited me to weigh in; my contribution is cross-posted here.)

Deborah, you're on to something here when you ask whether the words "necessary" and "appropriate" -- which qualify "use of force" in Congress' Authorization to Use Military Force of September 18, 2001 -- ought not to be examined more fully.

In Hamdan v. Rumsfeld (2006), a majority of the Supreme Court reaffirmed that in making reference to terms that are part and parcel of the international laws respecting the conduct of war -- to cite the Latin phrase still current, jus in bello -- Congress intended courts to look to that body of law in interpreting the statutory terms.

In considering whether the AUMF allows strikes against Somalia (map at left), the pertinent international laws concern not the conduct of war but the act of going to war; that is, jus ad bellum. Since the adoption of the U.N. Charter in 1945, that law renders a nation-state's use of force illegal, as a matter of international law, unless it is undertaken with the approval of the U.N. Security Council. The Charter permits only one exception, set forth in Article 51:

Nothing 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, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Presumably, the United States would argue that the Somalia strikes are permissible as exercises of "the inherent right of individual or collective self-defence." But that claim would not end the story. Do the words that follow -- "if an armed attack occurs" -- mean that the attack already must have occurred, and if so, do the attacks of September 11, 2001, attributed to an al Qaeda leader then in Afghanistan, not Somalia, so satisfy this requirement that the United States may go after a different leader in a different country, nearly 7 years after that other attack?

Let's assume, in the alternative, that the United States may attack before it is attacked, in order to defend itself before it is so disabled that it cannot engage in self-defense. This seems reasonable; after all, the law generally allows a person who has a gun pointed at her to shoot 1st, and not to wait for the assailant to shoot her before she may act to defend herself. Indeed, this reasoning is enshrined in international law as "anticipatory self-defense," a concept established more than 170 years ago during the Caroline incident between the United States and Britain.

Accepting "anticipatory self-defense" as law does not end the inquiry, however. The exchange of letters that ended the Caroline dispute indicate conditions upon this right -- conditions of "necessity" and "proportionality" that may be found in other doctrines relating to the use of force, such as the old doctrine of reprisal, as our colleague, Notre Dame Law Professor Mary Ellen O'Connell, explains here. Within those 2 terms may be found a rule that use of force in self-defense must be genuinely necessary, that the threat must be imminent, that there must be no opportunity for deliberation or negotiation, and further that the use of force must be proportionate to the threat, so that any permissible strike goes after only the person(s) or camp(s) that are a menace, and avoids as much as possible any damage to any innocent person or any uninvolved item of property.

The U.S. Congress ought to be presumed to understand these well-settled principles -- principles that derive from a dispute involving the United States itself. Thus its decision explicitly to require in the AUMF use of force be both "necessary" and "appropriate" -- words nearly identical to the international law doctrine's "necessity" and "proportionate" -- ought to be understood as limiting post-9/11 use of force to that which meets these requirements.

What's been published respecting the United States' sporadic strikes in Somalia raises questions whether the uses of force there exceed the narrow requirements of jus ad bellum and, therefore, of the AUMF.