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actors alike have used force in ways that have violated fundamental rules
of international law and have led to enormous suffering. Furthermore, the
simultaneous development of international norms limiting the use of force
and norms protecting human rights paradoxically contained the seeds of a
tension “ a potential clash between the UN Charter™s rules restricting military
intervention, without Security Council authorization, in response to internal
con¬‚icts, on the one hand, and human rights norms that clearly prohibit
atrocities within states, on the other. In the last decade of the 20th century,
the Security Council responded to this tension, in some cases at least, by
authorizing collective interventions in response to threats to peace and secu-
rity that did not involve external aggression but rather internal or mixed
con¬‚icts with dire humanitarian consequences. Examples include the inter-
ventions in Somalia and Haiti.21 But there were clear limits on the willingness
of key Security Council members “ determined to protect state sovereignty
and vulnerable themselves to criticism on human rights grounds “ to autho-
rize military action in situations that did not involve cross-border con¬‚ict.
This tension came to the fore in Kosovo when NATO states, responding to
a humanitarian emergency and seeking to halt grave human rights abuses,
used force without authorization from the Security Council.
Whether the Security Council is capable of agreed, effective action has
always been shaped fundamentally by the attitudes of its ¬ve permanent
members and by their relationships with one another. These relationships
have evolved since the dif¬cult Cold War period, but substantial challenges
to forging agreement on interventions in the “common interest” persist even
as new threats to peace and security have clearly emerged.

basic security and law and order have broken down, pose severe threats to human rights,
with rapes, kidnappings, summary executions, and arbitrary exercise of power by local
warlords denying people the most basic protections of life. See Michael Ignatieff, State Fail-
ure and Nation-Building, in Humanitarian Intervention: Ethical, Legal, and Political
Dilemmas (J. L. Holzgrefe & Robert O. Keohane, eds., 2003). In the face of very limited
resources and ongoing instability, the challenge of establishing the basic security that is a
precondition for the protection of human rights can be enormous. Effective responses can
take many years of effort and substantial resources. Despite the obstacles and enormous
challenges to protecting even the most basic of human rights in many countries, interna-
tional human rights law and institutions “ including international and regional tribunals,
UN special rapporteurs, and other mechanisms “ have contributed concretely over time to
the development of standards that enable states, individuals, and nongovernmental orga-
nizations to shine a critical spotlight on abusive practices and galvanize support to change
those practices.
21 See discussion in Part II of this chapter. Additional examples of mixed con¬‚icts include
Bosnia, Liberia, and Sierra Leone, discussed below. We disagree, as has the Security Coun-
cil itself through its practice, with Michael Glennon™s narrow reading of the scope of
the Council™s authority under Chapter VII to respond to threats to the peace. Michael J.
Glennon, Limits of Law, Prerogatives of Power: Interventionism after Kosovo (2001),
at 101“143.
28 CAN MIGHT MAKE RIGHTS?

II. FROM THE COLD WAR TO THE POST“COLD WAR PERIOD:
INTERVENTION IN AN EVOLVING STRATEGIC CONTEXT

The Cold War™s strategic realities “ marked by the U.S.“Soviet superpower
confrontation “ constrained the effective operation of the UN Charter system
from the start. With the exception of Korea in 1950, the Security Council was
largely stalemated from taking action in con¬‚icts touching the interests of
the major powers.22 Regional security alliances, such as NATO, functioned
as the primary bulwark of international security during the Cold War period.
The Security Council was able to authorize peacekeeping missions in a num-
ber of situations when the major powers found this to be in their interest,
and agreed parameters for successful peacekeeping developed over time.23
But the Security Council™s role in major crises remained severely limited.
Despite numerous interventions and counterinterventions during the bit-
ter Cold War years, no clear agreed basis for using force (other than in
self-defense) emerged during this period. The Soviet Union made dubious
claims of intervention by “invitation” in its sphere of in¬‚uence in Eastern
Europe. U.S. arguments in favor of prodemocratic intervention engendered
controversy.24 Some military interventions with a humanitarian effect “ such
as Tanzania™s intervention in Uganda to remove the brutal Idi Amin from
power “ were tolerated or supported by states because they occurred outside
the sphere of great power interest and were viewed as arguably in the com-
mon interest. But states declined to embrace “humanitarian intervention” as
a new legal basis for using force unilaterally “ as opposed to seeing it as a
potentially excusable breach of the Charter in exceptional circumstances.25
Even if states, on occasion, tolerated some interventions with a humanitar-
ian purpose or effect, no collective efforts to rebuild the rule of law or reshape
governmental authority structures after intervention were possible during
the Cold War years. Both strategic and normative factors constrained any
such efforts. Strategically, as the divisive experience in the Congo illustrated,

22 Even the UN-authorized response to North Korea™s invasion of South Korea was made
possible only by the temporary absence of the Soviet Union from the Security Council.
Once the Soviets returned, the General Assembly recommended subsequent measures in
Korea under the Uniting for Peace Resolution.
23 These include the consent of the parties, impartiality of the operation, nonuse of force except
in self-defense, a clear and workable mandate, and adequate personnel and ¬nancing. See
United Nations Department of Public Information, The Blue Helmets: A Review of United
Nations Peace-Keeping (1985), at 3“5; The Evolution of UN Peacekeeping: Case Studies
and Comparative Analysis (William J. Durch, ed. 1993).
24 Louis Henkin, The Use of Force: Law and U.S. Policy, in Right v. Might: International
Law and the Use of Force (1991), at 44, 54“56.
25 For analysis, see Murphy, Humanitarian Intervention, supra note 12, at 142“143; Tom
J. Farer, An Inquiry into the Legitimacy of Humanitarian Intervention, in Law and Force
in the New International Order (Lori F. Damrosch & David J. Scheffer, eds., 1991), at
185“201.
29
INTERVENTIONS AND INTERNATIONAL LAW: LEGALITY AND LEGITIMACY


each side in the Cold War standoff viewed interventions by the other side or
its allies as an effort to seek strategic advantage; this reality precluded any
long-term cooperation on nation-building. Normatively, the decolonization
movement and the end of the UN trusteeship system was fueled by the belief
that states should be free to govern themselves without undue outside inter-
ference. Even scholars writing in support of “humanitarian intervention”
during the Cold War period tended to argue for modest intervention with
only a limited impact on authority structures.26 This would change, however,
when a new strategic and normative environment made possible collective
efforts to rebuild troubled states.
The end of the Cold War transformed the strategic context in which inter-
ventions have occurred. No longer mortal enemies competing for strategic
strongholds around the globe, the United States and Russia began to reassess
deployments and to selectively disengage from some con¬‚ict zones. In east-
ern Europe, new possibilities for democracy emerged, and in western Europe
the movement toward integration gained new momentum. At the same time,
in many parts of the world, con¬‚icts previously overshadowed by the Cold
War broke sharply into focus.
With the Cold War over, the prospects for international agreement on
particular interventions improved. No longer frozen by the U.S.“Soviet con-
frontation, the UN Security Council was able to authorize collective military
intervention in a variety of circumstances. The major powers did not always
provide needed forces, but the ending of the Cold War opened the door to
broader possibilities for agreed action just as a more diverse array of threats
to the peace “ brutal civil wars, ethnic strife, and desperate humanitarian
emergencies “ galvanized international attention.
Normative trends also in¬‚uenced international responses to these threats.
A growing emphasis on the human rights of individuals increasingly chal-
lenged traditional conceptions of state sovereignty “ particularly since the
major powers no longer viewed every con¬‚ict through the restrictive prism of
Cold War tensions. Under the human rights treaties adopted in the decades
following World War II, states took on clear duties not to commit genocide
or torture or to otherwise violate the fundamental human rights of those
within their borders. States that egregiously abridged human rights became
increasingly subject to criticism from other states and from a growing global
network of nongovernmental organizations. Time and again, moreover, a
globalized media and international NGOs spotlighted attention on violent
con¬‚icts throughout the world, increasing normative pressures for some kind
of international response to escalating humanitarian emergencies that spilled
over across borders or involved extreme atrocities. But a related challenge

26 See, e.g., Michael J. Bazyler, Reexamining the Doctrine of Humanitarian Intervention in
Light of the Atrocities in Kampuchea and Ethiopia, 23 Stan. J. Int™l L. 547, 604“606 (1987).
30 CAN MIGHT MAKE RIGHTS?


soon emerged: to what extent could the international community agree on
intervention in the common interest, or follow through to help rebuild shat-
tered states after intervention?


A. UN Security Council-Authorized Interventions
The 1990s revealed both new possibilities for agreed international inter-
vention under the UN Charter system and clear limitations on those pos-
sibilities. The Security Council™s uni¬ed response to Iraq™s 1990 invasion
of Kuwait inaugurated the decade on an auspicious note. Authorizing “all
necessary means” to liberate Kuwait and “restore international peace and
security in the area,”27 the states on the Council responded to a classic case
of aggression with a clear authorization of collective force. The aftermath
of the war, however, particularly the question of how to respond to Saddam
Hussein™s repression of the Kurds in northern Iraq, foreshadowed the dif¬-
cult challenges that would soon preoccupy the Council in addressing internal
con¬‚icts, even those with cross-border effects. The Council demanded that
Saddam Hussein stop repressing Iraqi civilians and called on states to assist
in providing humanitarian relief, but the Council stopped short of invoking
its Chapter VII authority to authorize force.28 Moreover, the Council™s unity
in imposing clear disarmament obligations on Saddam Hussein in 1991 at the
end of the Persian Gulf War was not matched by unity of response as Saddam
de¬ed and materially breached those duties in the years that followed.
The Security Council did forge agreement on international intervention
in a signi¬cant number of cases during the 1990s, however. The Council™s
authorizations in the cases of Somalia, Haiti, Bosnia, and East Timor, for
instance, showed far more varied and ¬‚exible understandings of “threats
to the peace” as a basis for collective action than classic aggression, even
if some states were wary about moving in this direction. These authoriza-
tions underscored both the greater political latitude for agreement in the
post“Cold War period and the adaptability of the Charter system to new
circumstances.
In the case of Somalia, the Council in 1992 authorized a coalition of pre-
dominantly American forces to establish “a secure environment for human-
itarian relief operations” after ¬nding that the “magnitude of the human
tragedy” in Somalia was a threat to international peace and security.29
Later, once relief was ¬‚owing, the Council authorized a far more ambitious
“nation-building” operation, which “ in the face of hostile local warlords

27 S.C. Res. 678 (1990), at para. 2.
28 See S.C. Res. 688 (1991); Jane E. Stromseth, Iraq™s Repression of Its Civilian Population:
Collective Responses and Continuing Challenges, in Enforcing Restraint: Collective
Intervention in Internal Con¬‚icts (Lori Fisler Damrosch, ed., 1993), at 77“117.
29 S.C. Res. 794 (1992).
31
INTERVENTIONS AND INTERNATIONAL LAW: LEGALITY AND LEGITIMACY


and insuf¬cient international resources “ ultimately failed dramatically to
achieve its goals.30
In Haiti, after determining in 1994 that the deteriorating situation threat-
ened peace and security in the region, the Security Council authorized mil-
itary intervention to “facilitate the departure” of the de facto regime of
General Raoul Cedras and restore the government of elected President Jean-
Bertrand Aristide to power.31 A follow-on peacekeeping and reconstruction
effort made some headway, but subsequent political developments in Haiti
brought that country full circle to the brink of anarchy. Then, a decade after
Aristide was restored to power, he resigned and departed under pressure, as
rebel forces approached the capital; and the Security Council authorized a
multinational force to provide security to support “the constitutional polit-
ical process under way in Haiti” and to facilitate humanitarian and other
international assistance.32
In Bosnia-Herzegovina, which dissolved into a brutal civil war after the
breakup of the former Yugoslavia, the Security Council in 1993 authorized
NATO to use its air power to help protect UN-designated safe areas from
attack.33 Later, in the face of escalating “ethnic cleansing” by Bosnian Serb

30 S.C. Res. 814 (1993). With the Clinton Administration™s support, the Council in March
1993 authorized the United Nations Operation in Somalia (UNOSOM II) to replace the
U.S.-commanded operation and to engage in a number of tasks. In addition to emphasizing
the disarmament of Somali factions, the Security Council also authorized UNOSOM II to
assist in the economic rehabilitation of Somalia, promote political reconciliation, and help
reestablish political institutions and civil administration throughout the country. S.C. Res.
814, section B, para. 7, section A, para. 4. Control of the Somalia operation passed from
the United States to the United Nations in May 1993. But the more ambitious goals were
not matched with adequate forces, and a series of disasters, including the brutal murder
of Pakistani peacekeepers by Somali forces, a subsequent unsuccessful campaign to arrest
warlord General Aideed, and the loss of sixteen American soldiers in an ill-fated raid on an
Aideed stronghold, led in 1994 to the withdrawal of U.S. forces, the subsequent withdrawal
of other international forces, and an end to this ambitious nation-building exercise. See
generally John L. Hirsch & Robert B. Oakley, Somalia and Operation Restore Hope
(1995); Jane E. Stromseth, Collective Force and Constitutional Responsibility: War Powers
in the Post-Cold War Era, 50 U. Miami L. Rev. 145, 170“171 (1996).
31 S.C. Res. 940 (1994), at 2. The Council also authorized UN member states “to establish and
maintain a secure and stable environment that will permit implementation of the Governors
Island Agreement,” id., in which the military regime of General Raoul Cedras had agreed
to relinquish power.
32 S.C. Res. 1529 (2004), para. 2.
33 S.C. Res. 836 (1993). More precisely, this resolution authorized the United Nations Protec-
tion Force (UNPROFOR) in former Yugoslavia “to deter attacks against the safe areas,”
id., para. 5, and “acting in self-defence, to take the necessary measures, including the use
of force, in reply to bombardments against the safe areas by any of the parties or to armed
incursion into them.” Id., para. 9. In addition, the Security Council in Resolution 836 decided
that “Member states, acting nationally or through regional organizations or arrangements,
may take, under the authority of the Security Council and subject to close coordination
with the Secretary-General and UNPROFOR, all necessary measures, through the use of air
power, in and around the safe areas in the Republic of Bosnia and Herzegovina, to support
32 CAN MIGHT MAKE RIGHTS?


forces and the shelling of civilians in Sarajevo, NATO air forces took more
decisive military action leading to the 1995 Dayton Accords.34
At the end of the decade, Australian-led forces authorized by the Secu-
rity Council (with begrudging Indonesian consent) helped bring stability to
East Timor after its historic referendum in favor of independence.35 The
Council also authorized the UN Transitional Administration in East Timor
(UNTAET) and gave it far-reaching executive and legislative power as the
United Nations assisted the self-determination of the Timorese people by
supporting their transition to independent statehood.36
These UN-authorized interventions in the 1990s demonstrated the Secu-
rity Council™s willingness to de¬ne “threats to the peace” more broadly and
¬‚exibly than ever before to include humanitarian emergencies, the overthrow
of democratically elected leaders, extreme repression of civilian populations
and cross-border refugee ¬‚ows threatening regional security, and failure to
hold perpetrators of major atrocities accountable.37 The Security Council,
in short, was prepared, at least in some cases, to authorize military inter-
vention in response to anarchy, humanitarian emergencies, and threats to
democracy “ invoking reasons for intervention that went well beyond aggres-
sion or classic cross-border threats to peace and security.
The key to these authorizations was the willingness of a major power or
regional organization to contribute signi¬cant forces “ and agreement by
the Council™s ¬ve permanent members not to oppose collective action. But
even in cases of severe atrocities and desperate humanitarian need, these
conditions were not always present. Rwanda illustrated this dramatically.
When a devastating genocide engulfed Rwanda in 1994, the members of
the United Nations failed dramatically to act effectively to stop the killing.38
This collective failure to intervene left hundreds of thousands of desperate
human beings with no hope of survival. The minimal international response,
and the reluctance of the member states of the Security Council to commit
signi¬cant forces even in the face of such overwhelming need, made at least

UNPROFOR in the performance of its mandate set out in paragraphs 5 and 9 above.” Id.,
para. 10.
34 See Richard Holbrooke, To End a War (1998).
35 S.C. Res. 1264 (1999) (INTERFET).
36 S.C. Res. 1272 (1999) (UNTAET). Upon attaining independence in May 2002, East Timor
became the Democratic Republic of Timor Leste. Because this book and chapter refer to
multiple time periods, pre and post independence, we use the term East Timor for ease of
reference, but we recognize that Timor Leste is the country™s preferred English name today.
37 See Lori Fisler Damrosch, Introduction and Concluding Re¬‚ections, in Enforcing Res-
traint: Collective Intervention in Internal Con¬‚icts, supra note 28, at 12“13, 356“
359; Murphy, Humanitarian Intervention, supra note 12, at 282“290.
38 Samantha Power, “A Problem from Hell”: America and the Age of Genocide (2002), at
329“389; S/1999/1257, Report of the Independent Inquiry into the Actions of the United
Nations during the 1994 Genocide in Rwanda, December 16, 1999.
33
INTERVENTIONS AND INTERNATIONAL LAW: LEGALITY AND LEGITIMACY


some states and leaders consider whether, if such a situation arose again, they
should be prepared to act even without formal Security Council authority “
perhaps through regional organizations.

B. Regional Interventions and the Common Interest
In fact, both before and after Rwanda™s genocide, groups of states intervened
in several long-festering con¬‚icts when the Security Council proved unwilling
or unable to agree on a clear collective response. Regional organizations, in
particular “ ECOWAS in Liberia and Sierra Leone, and NATO in Kosovo “
decided to deploy military forces during the 1990s without prior authority
from the Security Council when they concluded that urgent humanitarian
and security circumstances in their region required it. But squaring these
interventions with the UN Charter™s provisions on the use of force proved
dif¬cult to varying degrees.
The UN Charter, to be sure, envisions that regional organizations will
play a signi¬cant role in con¬‚ict resolution. Indeed, the Charter encourages
states to use regional arrangements to peacefully resolve regional disputes
before bringing matters to the Security Council.39 But the Charter™s drafters
sought to strike a balance that would not jeopardize the UN™s primary role
in protecting international peace and security.40 On the one hand, in cases
of self-defense, states clearly can respond to armed attacks through regional
self-defense arrangements if they choose, reporting to the Security Coun-
cil after the fact. On the other hand, if regional organizations engage in
“enforcement action” in situations that do not involve self-defense, they
must obtain Security Council authorization. As Charter Article 53 states:
“no enforcement action shall be taken under regional arrangements or by
regional agencies without the authorization of the Security Council. . . .”41
Although the term enforcement action is not de¬ned in the Charter, few
would dispute that the use of force on the territory of another state without
its consent would qualify.
Yet several interventions by the Economic Community of West African
States (ECOWAS) during the 1990s enjoyed substantial international legit-
imacy, despite the absence of prior authority from the Security Council.
ECOWAS forces, the preponderance from Nigeria, intervened in Liberia
and later in Sierra Leone after the Security Council failed to forge an agreed
international response.42 In both cases, the Security Council subsequently
39 UN Charter, Art. 52.
40 Anthony Clark Arend, The United Nations, Regional Organizations, and Military Opera-
tions: The Past and the Present, 7 Duke J. Comp. & Int™l L. 3 (1996).
41 UN Charter, Art. 53(1).
42 See David Wippman, Enforcing the Peace: ECOWAS and the Liberian Civil War, in
Enforcing Restraint, supra note 28, at 157“203; Lee Berger, State Practice Evidence of the
34 CAN MIGHT MAKE RIGHTS?


commended the action taken by ECOWAS but sought to monitor and
provide some international oversight.43 In short, the ECOWAS interven-
tions were tolerated and endorsed retrospectively but with a clear message
that some degree of Council oversight was critical to the Council™s willing-
ness to support the interventions, even if the effectiveness and extent of that
oversight proved problematic on the ground.
ECOWAS is unique in that its members have agreed by treaty “ in a special
Protocol “ to establish a Mediation and Security Council with the legal capac-
ity to authorize intervention in a wide range of circumstances. The Protocol,
for instance, provides for intervention in situations of internal con¬‚ict that
“threaten[] to trigger a humanitarian disaster” or “pose[] a serious threat to
peace and security in the sub-region” and in the “event of serious and mas-
sive violation of human rights and the rule of law.”44 Although interventions
by consent, pursuant to this Protocol, on the territory of ECOWAS members
are not necessarily in tension with the Charter™s nonintervention norm,45 the
ECOWAS Protocol does illustrate that the process of determining what is in
the “common interest” is becoming more multidimensional: Organizations
other than the UN Security Council are prepared to act in the face of the
Council™s inability or unwillingness to forge a collective response.
The ECOWAS interventions in Liberia and Sierra Leone revealed the Secu-
rity Council™s own willingness to accept regional action ¬rst with Council
endorsement after the fact. But there is reason for caution in generalizing
too far from this experience. As the intense controversy among the Security
Council™s permanent members over Kosovo showed, regional enforcement
action without advance Council authorization can also generate strong dis-
agreement “ at least in cases that touch directly on the interests of those
members. Kosovo also raised the complex and contested issue of “humani-
tarian intervention” “ that is, the use of force by a state or group of states to
protect individuals in another state from severe human rights abuses without
the consent of that state™s government.


Humanitarian Intervention Doctrine: The ECOWAS Intervention in Sierra Leone, 11 Ind.
Int™l & Comp. L. Rev. 605 (2001).
43 S.C. Res. 788 (1992) (Liberia); S.C. Res. 1132 (1997) (Sierra Leone).
44 Protocol Relating to the Mechanism for Con¬‚ict Prevention, Management, Resolution,
Peace-Keeping and Security (1999), Art. 25, Art. 10. The Protocol also provides for inter-
vention in “cases of aggression or con¬‚ict in any Member State or threat thereof”; in “case of
con¬‚ict between two or several Member States”; in “the event of an overthrow or attempted
overthrow of a democratically elected government”; and in “[a]ny other situation as may
be decided by the Mediation and Security Council.” Art. 25.
45 For a nuanced analysis, see David Wippman, Military Intervention, Regional Organizations,
and Host-State Consent, 7 Duke J. Comp. & Int™l L. 209 (1996); David Wippman, Pro-
Democratic Intervention by Invitation, in Democratic Governance & International Law
(Gregory H. Fox & Brad R. Roth, eds. 2000).
35
INTERVENTIONS AND INTERNATIONAL LAW: LEGALITY AND LEGITIMACY

C. Kosovo and the Dilemma of “Humanitarian Intervention”
When NATO governments decided to intervene with force in response to
the escalating crisis in Kosovo, they faced a dif¬cult dilemma. On the one
hand, violence in the province was increasing, security forces were target-
ing civilians, refugee ¬‚ows were accelerating, and a humanitarian crisis was
mounting. The Milosevic regime was violating Security Council resolutions
calling on the former Yugoslavia to halt hostilities against the civilian popu-
lation of Kosovo and to avert an “impending humanitarian catastrophe,”46
and no prospect of a diplomatic resolution of the con¬‚ict was in sight. On
the other hand, Russia and China were not prepared to authorize collective
military action in response to the situation, so the Security Council was at an
impasse. Although NATO governments could point to numerous factors that
supported the legitimacy of military action, NATO states could not invoke
either of the two clear, agreed legal bases for using force under the UN Char-
ter: NATO™s use of force was neither an exercise of the right of self-defense
nor authorized by the Security Council. The Kosovo crisis, in short, pitted
fundamental human rights principles af¬rmed by the UN Charter against
the Charter™s rules limiting the resort to force “ confronting NATO with the
dilemma of either acting without Council authorization or tolerating severe
human rights abuses in a desperate and escalating humanitarian crisis in
Europe.
NATO ultimately chose to use force in response to the extraordinary
circumstances in Kosovo. Even so, most NATO states were reluctant to
claim a legal “right” of “humanitarian intervention.” Most NATO mem-
bers instead defended their intervention in Kosovo more narrowly as an
action consistent with objectives set forth in Security Council resolutions,
even if not expressly authorized by the Council.47 Germany, for example,
argued that NATO™s action was consistent with the “sense and logic” of
Council resolutions.48 France likewise emphasized Milosevic™s noncompli-
ance with Security Council resolutions and argued that “the legitimacy of
NATO™s action lies in the authority of the Security Council.”49 Britain came
closest in March 1999 to invoking humanitarian intervention as a distinct
legal basis for NATO™s military action, arguing that force could be justi-
¬ed “as an exceptional measure on grounds of overwhelming humanitarian

46 S.C. Res. 1199 (1998). See also Bruno Simma, NATO, the UN and the Use of Force: Legal
Aspects, 10 Eur. J. Int™l L. 1“22 (1999); Catherine Guicherd, International Law and Kosovo,
41 Survival 27“28 (1999).
47 This section draws directly on Jane Stromseth, Rethinking Humanitarian Intervention:
The Case for Incremental Change, in Humanitarian Intervention: Legal, Political, and
Ethical Dilemmas (J. L. Holzgrefe & Robert O. Keohane, eds., 2003), at 232.
48 Simma, NATO, the UN and the Use of Force, supra note 46, at 12.
49 Press release, French Foreign Ministry, March 25, 1999.
36 CAN MIGHT MAKE RIGHTS?


necessity.”50 Other British statements, however, linked the justi¬cation for
NATO™s military intervention more directly to purposes articulated in UN
Security Council resolutions.51 The United States made no reference to
“humanitarian intervention” as a legal concept but instead emphasized the
unique factual circumstances at hand, including “Belgrade™s brutal perse-
cution of Kosovar Albanians, violations of international law, excessive and
indiscriminate use of force, refusal to negotiate to resolve the issue peacefully,
and recent military build-up in Kosovo “ all of which foreshadow a human-
itarian catastrophe of immense proportions.”52 In short, NATO states, in
sometimes differing ways, explained why they viewed their military action
as “lawful” “ as having a legal basis within the normative framework of inter-
national law, a framework that includes fundamental human rights norms
as well as resolutions adopted by the Security Council under Chapter VII of
the Charter.
Despite the controversy provoked by NATO™s intervention in Kosovo,
many other states also concluded that the intervention was justi¬ed. The
Security Council itself decisively rejected a resolution, supported by Russia
and China, that called NATO™s intervention a ¬‚agrant violation of the UN


50 Statement of Sir Jeremy Greenstock to the Security Council, March 24, 1999, in S/PV.3988,
at 12. Belgium was prepared to take a few more steps down this road in proceedings before
the International Court of Justice. Defending against FRY charges of illegality, Belgium
argued in May 1999 that NATO™s action was a “lawful armed humanitarian intervention.”
Argument of Belgium before the International Court of Justice, May 10, 1999, at 7, available
at www.icj-cij.org. Belgium also argued, in the alternative, that NATO™s action was excusable
under “a state of necessity . . . which justi¬es the violation of a binding rule in order to
safeguard, in face of grave and imminent peril, values which are higher than those protected
by the rule which has been breached.” Id., at 8.
51 As Prime Minister Tony Blair stated in April 1999: “Under international law a limited use of
force can be justi¬able in support of purposes laid down by the Security Council but without
the Council™s express authorization when that is the only means to avert an immediate and
overwhelming humanitarian catastrophe. Any such case would in the nature of things be
exceptional and would depend on an objective assessment of the factual circumstances at the
time and on the terms of relevant decisions of the Security Council bearing on the situation
in question.” Prime Minister Tony Blair, Written Answer for House of Commons, April 29,
1999, Hansard, Col. 245.
52 Statement of Ambassador A. Peter Burleigh to the Security Council, March 24, 1999,
S/PV.3988, 3988th Meeting of the Security Council, at 4. The United States also stressed the
implications of the developing refugee crisis for regional security and invoked the Security
Council resolutions that called the situation a threat to peace and security. In this context,
in the face of Belgrade™s persistent refusal to honor its commitments or negotiate a peaceful
solution, the United States ultimately concluded that NATO military action was “justi¬ed
and necessary to stop the violence and prevent an even greater humanitarian disaster.” Id.,
at 5. Other NATO states likewise avoided any general doctrinal justi¬cation for NATO™s
action and emphasized instead both the extraordinary circumstances surrounding the inter-
vention and the Security Council™s resolutions. Guicherd, International Law and Kosovo,
supra note 46, at 26“28.
37
INTERVENTIONS AND INTERNATIONAL LAW: LEGALITY AND LEGITIMACY


Charter and a threat to peace and security.53 Only one other state “ Namibia “
voted in favor of this resolution. All the other states on the Security Council “
countries large and small from every region of the world “ essentially con-
curred in NATO™s conclusion that force was necessary in these exceptional
circumstances. UN Secretary-General Ko¬ Annan also refused to condemn
NATO™s military action, stating instead that there “are times when the use
of force may be legitimate in the pursuit of peace.”54 To be sure, many states
deeply regretted the Security Council™s failure to act, but many also concluded
that allowing the Milosevic regime™s actions to go unchecked would lead to
a humanitarian catastrophe and would condone “systematic and brutal vio-
lations” of the Council™s own resolutions.55 In short, most Security Council
members reached the same conclusion NATO reached: that in these extraor-
dinary circumstances, intervention was necessary and legitimate even if it did
not ¬t comfortably within the strictures of the UN Charter™s provisions gov-
erning force. Moreover, even the states that opposed the intervention came
together afterwards in voting for Resolution 1244, which authorized an inter-
national security force and an international “civil presence” in Kosovo with
far-reaching responsibilities.56
The perceived legitimacy of the Kosovo intervention “ in the view of
NATO governments and of many other states as well “ contributed to their
willingness to commit forces and resources to the intervention and to the
dif¬cult follow-on tasks of stabilization and post-con¬‚ict reconstruction.
Twenty-¬ve NATO nations and twelve non-NATO states contribute to the
Kosovo Force (KFOR) responsible for maintaining security in Kosovo.57 The
broad-based international support for KFOR and in particular for the UN
Mission in Kosovo (UNMIK) has helped to mobilize a greater array of resour-
ces in the face of the inevitable dif¬culties of post-con¬‚ict reconstruction.

53 S/1999/328, March 26, 1999; S/PV.3989, 3989th Meeting of the UN Security Council, March
26, 1999, at 6.
54 Ko¬ A. Annan, The Question of Intervention: Statements by the Secretary-General
(1999), at 33 (emphasis added). The Secretary-General was remarkably supportive of
NATO™s decision in this situation. Annan and many of his top advisers had experienced
directly the horri¬c consequences of UN neutrality in Bosnia in the face of systematic ethnic
cleansing and recurring atrocities, and they regarded a similar posture in Kosovo as unac-
ceptable. In a strong speech in Geneva before the UN Commission on Human Rights, the
Secretary-General made clear that “ethnic cleansers” and those “guilty of gross and shocking
violations of human rights” will ¬nd no justi¬cation or refuge in the UN Charter. Id. At the
same time, the Secretary-General also stressed the Security Council™s primary responsibility
for maintaining peace and security and the urgent need for uni¬ed, effective Council action
in defense of human rights in the future.
55 Statement by Danilo Turk, Permanent Representative of Slovenia, in S/PV.3988, March 24,
1999, at 6.
56 S.C. Res. 1244 (1999), paras. 7“11.
57 See http://www.nato.int/kfor/kfor/nations/default.htm (last accessed January 19, 2006).
38 CAN MIGHT MAKE RIGHTS?


Even so, the legal basis for humanitarian intervention remained deeply
contested in the aftermath of the Kosovo intervention. Supporting a par-
ticular intervention based on its unique factual circumstances was one
thing; developing a more far-reaching legal doctrine was quite another.
The overwhelming majority of states declined to embrace any doctrine
or legal right of humanitarian intervention in the absence of Security
Council authorization. And despite the strong encouragement of Secretary-
General Annan, it continued to be an uphill battle to develop agreed
criteria for Security Council responses to severe atrocities and humanitarian
emergencies.58
Nevertheless, based on the experience in Kosovo and in other interven-
tions during the 1990s (such as the intervention to protect the Iraqi Kurds
after the 1991 Gulf War), one can reasonably argue that the normative sta-
tus of intervention to protect individuals from severe atrocities is in a state
of evolution. At the very least, for many states and legal scholars, Kosovo
was an example of an “excusable breach” of the formal rules of the UN
Charter. It may be premature to claim that a new legal norm in support of
humanitarian intervention in exceptional cases has emerged in any clear or
uncontested way, but elements of a normative consensus may be developing
gradually.59 In a situation like Rwanda “ or Darfur, Sudan “ a collective
58 Secretary-General Annan and the British government have led these efforts. For a fuller
discussion, see Stromseth, Rethinking Humanitarian Intervention, supra note 47, at 261“
267. UN Secretary-General Ko¬ Annan made the issue of intervention the centerpiece of his
address to the UN General Assembly in September 1999. He focused on the tragic dilemma
confronting the international community when the UN Charter™s rules regarding the lawful
use of force are in tension with human rights imperatives in concrete situations such as
Kosovo. On the one hand, as Annan stressed, military intervention without Security Council
authorization may erode the legal framework governing the use of force and undermine the
Council™s authority by setting potentially dangerous precedents. On the other hand, the
Council™s failure to act in the face of horri¬c atrocities betrays the human rights principles
of the Charter and erodes respect for the UN as an institution. To avoid such problems
in the future, the Secretary-General has emphasized the need to ensure that the Security
Council can rise to the occasion and agree on effective action in defense of human rights.
Indeed, he has argued that the “core challenge to the Security Council and to the United
Nations as a whole in the next century” is “to forge unity behind the principle that massive
and systematic violations of human rights “ wherever they take place “ should not be
allowed to stand.” Ko¬ Annan, Address to the 54th Session of the UN General Assembly,
September 20, 1999, reprinted in Annan, The Question of Intervention, supra note 54, at
39. Governments, commissions, foreign affairs institutes, nongovernmental organizations,
and scholars have taken up the Secretary-General™s challenge, in a number of initiatives
that address the dif¬cult issues raised by Kosovo and by failures to act in other desperate
situations. See, e.g., The Responsibility to Protect, Report of the International Commission
on Intervention and State Sovereignty, December, 2001, available at www.iciss.ca/report-
en.asp; The Danish Institute of International Affairs, Humanitarian Intervention: Legal
and Political Aspects (1999); and Adam Roberts, The So-Called Right of Humanitarian
Intervention, 3 YB. Int™l L. 3“51 (2001).
59 An emerging norm in support of humanitarian intervention as lawful in truly exceptional
circumstances may be developing gradually over time, case by case. For instance, a careful
39
INTERVENTIONS AND INTERNATIONAL LAW: LEGALITY AND LEGITIMACY


humanitarian intervention by a regional organization or a group of states
may well enjoy wide legitimacy in the absence of effective action by the
Security Council. Even if the formal rules remain the same, human rights
principles will in¬‚uence how the UN Charter is understood and applied in
concrete cases.
A stronger international consensus clearly has emerged regarding the
duties of states to protect their own populations from severe atrocities
and human rights abuses.60 The Secretary-General™s High-Level Panel on
Threats, Challenges and Change, for instance, concurred not only that states
have such a responsibility but also that “there is a collective international
responsibility to protect, exercisable by the Security Council authorizing
military intervention as a last resort, in the event of genocide and other
large-scale killing, ethnic cleansing or serious violations of international
humanitarian law which sovereign Governments have proved powerless
or unwilling to prevent.”61 Likewise, when heads of state gathered at the
United Nations General Assembly in September 2005, they agreed that each
state “has the responsibility to protect its populations from genocide, war
crimes, ethnic cleansing and crimes against humanity” “ a responsibility
that entails “prevention of such crimes.”62 In addition, the heads of state
expressed willingness to take collective action, including Security Council


examination and comparison of the Kosovo intervention and the intervention to protect
the Iraqi Kurds in the immediate aftermath of the 1991 Gulf War reveal common elements.
These include serious violations of fundamental human rights involving loss of life perpe-
trated by a government that showed no willingness to stop; the inability of the UN Security
Council to authorize military action, despite ongoing Council concern about the clear threat
to peace and security; under the circumstances, force was necessary to stop the human rights
abuses committed by government forces; the military actions taken were proportional to
the end of stopping the atrocities; the interventions were undertaken by a coalition of states
acting collectively; both interventions focused on stopping the atrocities, protecting individ-
uals at risk, and stabilizing a situation that risked further humanitarian catastrophe; and
the states taking military action defended their action as legally justi¬ed. In addition, both
interventions were welcomed by the population at risk, and neither intervention was con-
demned by the Security Council. To be sure, thoughtful scholars will differ on the degree to
which they ¬nd any normative consensus emerging from recent practice. Nevertheless, the
effort to identify potentially developing custom from recent practice is a promising one. See
Stromseth, Rethinking Humanitarian Intervention, supra note 47, at 244“255. Although a
very strong preference for Security Council authorization clearly remains, in extraordinary
and desperate circumstances an intervention may be widely accepted as legitimate and as
consistent with the human rights purposes of the UN Charter “ and indeed as lawful “
even if it is not expressly authorized by the Security Council. But whether humanitarian
intervention is viewed as an “excusable breach” or as an emerging norm in very narrow
circumstances, states clearly continue to reject any broad right of humanitarian intervention.
60 See, e.g., The Responsibility to Protect, Report of the International Commission on Inter-
vention and State Sovereignty, supra note 58.
61 Report of the Secretary-General™s High-Level Panel on Threats, Challenges and Change, A
More Secure World: Our Shared Responsibility, December 2004, at 66 (para. 203).
62 2005 World Summit Outcome, UNGA Resolution A/60/L.1, September 20, 2005, para. 138.
40 CAN MIGHT MAKE RIGHTS?


action under Chapter VII of the UN Charter, “should peaceful means be
inadequate and national authorities are manifestly failing to protect their
populations from genocide, war crimes, ethnic cleansing and crimes against
humanity.”63 Whether states on the Security Council will actually be pre-
pared to take decisive action, however, remains a dif¬cult problem, as the
situation in Darfur so desperately illustrates.
But because humanitarian intervention without Security Council autho-
rization remains deeply controversial, states intervening in response to severe
atrocities and other humanitarian emergencies without a clear Council man-
date will face enormous pressure to demonstrate that they are really acting
in the common interest. Interveners also must take seriously the tremendous
challenge of sustaining legitimacy “ both in building coalitions to assist in
post-con¬‚ict reconstruction and in maintaining the support of local popu-
lations. This imperative has continued in the dif¬cult post“9/11 period “ in
interventions triggered more directly by threats to national security.

III. AFTER 9/11: INTERVENTION IN THE FACE
OF NEW THREATS TO SECURITY

The horri¬c terrorist attacks on September 11, 2001 demonstrated dramati-
cally that the strategic realities of the post“Cold War era had changed forever.
A nonstate actor “ a terrorist network of global scope “ violated the most
fundamental norms of international law by targeting innocent civilians for
brutal destruction, unconstrained by notions of reciprocity or by the need
to protect sovereign territory, and determined to attack again with poten-
tially even more devastating results. Counterterrorism became a paramount
national security focus for the United States as it responded, with its allies,
to the September 11 attacks and the prospect of even more al-Qaeda attacks
in the future.

A. Self-Defense against Terrorism
The international community came together immediately after September
11 to denounce the terrorist attacks emphatically. The UN Security Council
unanimously and “unequivocally” condemned the attacks “in the strongest
terms,” stressing that “such acts, like any act of international terrorism,
[are] a threat to international peace and security.”64 The Council, it is fair
to say, recognized that these attacks were of such magnitude that both mil-
itary action in self-defense and cooperative law enforcement could be justi-
¬ed responses. In Resolution 1368, the Council af¬rmed “the inherent right
of individual or collective self-defense in accordance with the Charter”65
63 Id., para. 139.
64 S.C. Res.1368 (2001), operative para. 1.
65 Id., preambular para. 3.
41
INTERVENTIONS AND INTERNATIONAL LAW: LEGALITY AND LEGITIMACY


an important recognition of the applicability of the right of self-defense in
response to terrorist attacks.66 The Council, at the same time, also called
on all states “to work together urgently to bring to justice the perpetrators,
organizers and sponsors of these terrorist attacks” and “stress[ed] that those
responsible for aiding, supporting or harbouring the perpetrators, organiz-
ers and sponsors of these acts will be held accountable.”67 In addition, the
Council af¬rmed its own readiness to respond to the 9/11 attacks and “to
combat all forms of terrorism.”68 Later, in Resolution 1373, the Council
imposed far-reaching counterterrorism duties on all states.69
America™s allies were even more explicit in recognizing the right of self-
defense in response to the attacks. NATO invoked the collective self-defense
provisions in Article 5 of the North Atlantic Treaty for the ¬rst time in
the alliance™s history.70 Likewise, Australia, acting under the ANZUS Treaty,
invoked its collective self-defense provisions for the ¬rst time.71 The members
of the Rio Pact also responded jointly.72
Although terrorist attacks by nonstate actors can raise dif¬cult issues of
state responsibility,73 the facts in this case were such that the U.S. intervention

66 The Security Council™s af¬rmation of the right of self-defense in response to the September
11 terrorist attacks was a signi¬cant development, given earlier disagreements over uses of
force in response to terrorist acts. See Michael Byers, Preemptive Self-Defense: Hegemony,
Equality and Strategies of Legal Change, 11 J. Polit. Phil. 171, 177“179 (2003); Thomas
M. Franck, Editorial Comment: Terrorism and the Right of Self-Defense, 95 Am. J. Int™l L.
839 (2001).
67 S.C. Res. 1368, operative para. 3.
68 Id., para. 5.
69 S.C. Res. 1373 (2001). Resolution 1373 obligates all states to “[r]efrain from providing any
form of support, active or passive, to entities or persons involved in terrorist acts,” to “[t]ake
the necessary steps to prevent the commission of terrorist acts,” to “eliminate[e] the supply
of weapons to terrorists,” among other duties. Id., para. 2.
70 Statement by the North Atlantic Council, September 12, 2001, press release (2001) 124,
available at http://www.nato.int/docu/pr/2001/p01“124e.htm.
71 The Australia, New Zealand, United States (ANZUS) security alliance originally involved
Australia, New Zealand, and the United States, but today it involves active defense com-
mitments only between Australia and the United States. In 1986, as a result of disagreement
over New Zealand™s stance on nuclear warships in its ports, the United States unilaterally
suspended its obligations to New Zealand under the ANZUS treaty, and New Zealand™s
role is described as “dormant.” See Luke Peter, New Zealand™s Dormant Role in ANZUS
Unchanged Since 80s-PM, Christchurch Press, September 20, 2001, at 3. After the September
11 attacks, Australia invoked the collective self-defense provisions of the ANZUS treaty for
the ¬rst time in the alliance™s ¬fty-year history. See Howard Government Invokes ANZUS
Treaty, September 14, 2001, available at http://www.australianpolitics.com/news/2001/01“
09“14c.shtml. See Art. IV of Security Treaty (ANZUS), 3 U.S.T. 3420, 131 U.N.T.S. 83,
signed September 1, 1951, entered into force April 29, 1952.
72 Meeting of Consultation of Ministers of Foreign Affairs, Resolution on Terrorist Threat to
the Americas, September 21, 2001 (invoking relevant provisions of the Rio Treaty), available
at http://www.oas.org/oaspage/crisis/RC.24e.htm.
73 See, e.g., Richard J. Erickson, Legitimate Use of Force Against State-Sponsored
Terrorism (1989), at 95“106.
42 CAN MIGHT MAKE RIGHTS?


in Afghanistan was widely regarded by other states as lawful self-defense.74
Afghanistan™s Taliban regime had long de¬ed Security Council demands that
it turn over Osama bin Laden and cease its support for al-Qaeda. In light of
this history, the nature of the attacks, and the Taliban™s continued violation
of its international duties, the U.S. military action was broadly supported as
a defensive action to combat terrorism.
In commencing military action in Afghanistan in October 2001, the United
States and its allies explicitly invoked the legal right of self-defense. The
U.S. government emphasized that it had “clear and compelling information
that the Al-Qaeda organization, which is supported by the Taliban regime
in Afghanistan, had a central role in the attacks” of September 11. More-
over, the United States stressed, “[d]espite every effort by the United States
and the international community, the Taliban regime has refused to change
its policy”; instead, al-Qaeda continued to operate from the territory of
Afghanistan, training and supporting “agents of terror who attack inno-
cent people throughout the world and target United States nationals and
interests in the United States and abroad.”75 Thus, the United States did
not seek Security Council authorization but instead exercised its inherent
right of self-defense “to prevent and deter further attacks on the United
States.” At the same time, the United States emphasized that its actions were
directed against the Taliban and al-Qaeda, not against the Afghan people,
and that U.S. “humanitarian efforts to alleviate the suffering of the people
of Afghanistan” would continue.
The immediate military operation in Afghanistan, which removed the
Taliban from power, led to the much more dif¬cult and long-term challenge
of stabilizing and rebuilding that country “ an effort requiring substantial
resources and the support of allies and partners. The fact that many states
regarded the intervention itself as a legitimate act of self-defense reinforced
their willingness to contribute to the demanding reconstruction effort. With
the Security Council™s subsequent support for the Bonn Agreement (a UN-
brokered roadmap for transitional governance and national elections) and
for post-con¬‚ict rebuilding, many states and organizations have been willing
to help “ at least to some degree “ with various aspects of the daunting
struggle to bring greater security, political stability, and economic assistance
to Afghanistan™s exceedingly dif¬cult political terrain. A substantial number
of countries have contributed forces to the U.S.-led Operation Enduring


74 See Jack M. Beard, America™s New War on Terror: The Case for Self-Defense Under Inter-
national Law, 25 Harv. J. L. & Pub. Pol. 559 (2002).
75 Letter dated October 7, 2001 from the Permanent Representative of the United States
of America to the United Nations addressed to the President of the Security Council,
S/2001/946.
43
INTERVENTIONS AND INTERNATIONAL LAW: LEGALITY AND LEGITIMACY


Freedom, aimed at defeating Taliban and al-Qaeda remnants,76 while thirty-
¬ve NATO and non-NATO countries contribute troops to the international
security assistance force (ISAF) in Afghanistan.77


B. The Controversy over “Preemption”
Although many states are working together to thwart terrorist attacks and
to bring terrorists to justice, the decision of the Bush Administration to artic-
ulate a high-pro¬le doctrine of preemptive action has been a lightening rod
for controversy. First unveiled in presidential and vice presidential speeches
in summer 2002, the doctrine saw its fullest articulation in the Bush Admin-
istration™s National Security Strategy document of September 2002.78 There,
the Bush Administration indicated that the United States must be prepared
to preempt “emerging threats before they are fully formed.”79 Rather than
quietly keeping preemption as a possible option in extreme situations, as
previous administrations had done, the very public articulation of a new
“doctrine” alarmed even close U.S. allies. In its expansive form, the doctrine
poses a challenge to the UN Charter framework itself80 and has the potential
to be destabilizing.81

76 See http://www.globalsecurity.org/military/ops/enduring-freedom.htm (last accessed Jan-
uary 19, 2006) (“By 2002 the coalition had grown to more than 68 nations, with 27 nations
having representatives at CENTCOM headquarters.”).
77 See http://www.nato.int/issues/afghanistan (last accessed January 19, 2006).
78 National Security Strategy of the United States of America, September 17, 2002 (hereinafter
National Security Strategy), Section V, available at http://www.whitehouse.gov/nsc/nss.html.
79 Introduction to id. Our discussion of preemption draws on Jane E. Stromseth, Law and
Force after Iraq: A Transitional Moment, 97 Am. J. Int™l L. 628, 634“639 (2003).
80 As discussed in the National Security Strategy, the doctrine would apply even if there is
no imminent armed attack. More precisely what the administration means by “imminent
threat” or “grave threat” and whether the administration would be prepared to present a
situation to the Security Council in the ¬rst instance, when circumstances permit, has yet
to be clari¬ed. Whether the doctrine would, in fact, con¬‚ict with the UN Charter would
depend on how it is implemented in practice.
81 See W. Michael Reisman, Editorial Comment: Assessing Claims to Revise the Laws of War,
97 Am. J. Int™l L. 82, 89 (2003) (“The danger presented by the installation of a doctrine of
preemptive self-defense is systemic: if writ large and generally available in international law,
it is even more likely than anticipatory self-defense to lead to greater resort to international
violence by lowering the threshold for unilaterally determined contingencies that warrant
acts of self-defense. This potential could create an imperative for all latent adversaries to
strike sooner so as to strike ¬rst, raising the expectation of violence and the likelihood
of its eventuation.”). See also Ivo Daalder, Policy Implications of the Bush Doctrine on
Preemption, November 16, 2002, available at http://www.cfr.org/publication.php?id=5251
(“The doctrine of preemption . . . [i]f taken seriously by others . . . will exacerbate the security
dilemma among hostile states, by raising the incentive of all states to initiate military action
before others do. The result is to undermine whatever stability might exist in a military
standoff.”).
44 CAN MIGHT MAKE RIGHTS?


It is true that the precise scope of the right of self-defense has long been
a subject of dispute. Ever since the UN Charter was adopted in 1945, states
and scholars have debated whether the right of self-defense, af¬rmed in Arti-
cle 51, is triggered only by an armed attack or whether a state faced with
an imminent threat of attack can lawfully use force to defend itself anticipa-
torily before it is the victim of an attack.82 Our view, in light of the history
and text of the Charter, the customary international law that preceded it,
and subsequent state practice, is that a right of anticipatory self-defense to
an imminent attack reasonably falls within the right of self-defense af¬rmed
by the UN Charter.83
Yet rather than initiating a more focused attempt to re¬ne the concept of
anticipatory self-defense “ and working with allies to rethink the concept of
imminent attack in light of the realities of terrorism “ the Bush Administra-
tion articulated a doctrine of preemption whose parameters are uncertain
and that is potentially very broad in scope. On the one hand, the administra-
tion™s 2002 National Security Strategy grapples frankly and openly with the
exceedingly dif¬cult security challenges posed by terrorists seeking weapons
of mass destruction (WMD), possibly enabled by rogue or failed states. The
strategy stresses the vital need to prevent these weapons from ever being used
against the United States and its allies and friends.84 On the other hand, the
strategy™s counter to this danger is not simply preemption against speci¬cally

82 Article 51 of the Charter af¬rms that “[n]othing in the present Charter shall impair the
inherent right of individual or collective self-defense if an armed attack occurs against a
Member of the United Nations . . .” (emphasis added). Those who argue in favor of a limited
right of anticipatory self-defense point to the Charter™s reference to the “inherent right” of
self-defense and to the scope of the right of self-defense prior to the Charter, which included
a right of anticipatory self-defense. Those who argue that an armed attack must have already
begun point to the “if an armed attack occurs” language in Article 51 and to the purpose
of limiting unilateral resort to force.
83 See Oscar Schachter, The Right of States to Use Armed Force, 82 Mich. L. Rev. 1620, 1634“
1635 (1984) (arguing that a limited right of anticipatory self-defense to imminent attack is
consistent with Article 51 of the UN Charter, citing the criteria set forth by U.S. Secretary
of State Daniel Webster in the Caroline case). See also Anthony Clark Arend & Robert J.
Beck, International Law and the Use of Force (1993), at 71“79 (discussing differing views
regarding anticipatory self-defense, but concluding that it is not prohibited). Although the
debate continues among scholars, the history of state behavior and UN Security Council
responses under the Charter “ including repeated reference to criteria for anticipatory self-
defense articulated by U.S. Secretary of State Daniel Webster in the Caroline case “ suggest
that many states do, in fact, support a limited right of anticipatory self-defense to imminent
attack, dependent on the facts of the situation.
84 As the National Security Strategy explains: “new deadly challenges have emerged from
rogue states and terrorists . . . and the greater likelihood that they will use weapons of mass
destruction against us, make[s] today™s security environment more dangerous and complex.”
“We must be prepared to stop rogue states and their terrorist clients before they are able
to threaten or use weapons of mass destruction against the United States and our allies and
friends. . . . We must deter and defend against the threat before it is unleashed.” National
Security Strategy, supra note 78, at 13“14.
45
INTERVENTIONS AND INTERNATIONAL LAW: LEGALITY AND LEGITIMACY


identi¬ed terrorist threats in anticipatory self-defense but also, potentially,
the use of force to preempt “hostile acts”85 and “emerging threats before they
are fully formed”86 “ in particular to prevent “rogue states” from acquiring
weapons of mass destruction. The very uncertainty of the doctrine™s scope,87
coupled with the subjective and often precarious nature of judgments about
future threats, has made the doctrine highly controversial, raising doubts in
many parts of the world about the reassuring nature of U.S. power.88
Even the Bush Administration seems to have walked back its original
broad doctrinal pronouncements somewhat.89 Secretary of State Colin
Powell argued that preemption is primarily aimed at terrorists,90 and other


85 Id., at 15.
86 Introduction, in id. The National Security Strategy argues that “[f]or rogue states,” weapons
of mass destruction “are tools of intimidation and military aggression against their neigh-
bors. These weapons may also allow these states to attempt to blackmail the United States
and our allies to prevent us from deterring or repelling the aggressive behavior of rogue
states.” Id. Although “[t]he United States will not use force in all cases to preempt emerging
threats, nor should nations use preemption as a pretext for aggression . . . the United States
cannot remain idle while dangers gather.” Id. As the president put it in the Introduction to
the National Security Strategy: “as a matter of common sense and self-defense, America will
act against such emerging threats before they are fully formed.”
87 The boundaries of the Bush Administration™s doctrine “ as articulated in the National Secu-
rity Strategy and by the president and other high of¬cials “ are unclear and potentially far-
reaching. Although it is true that the preemption doctrine focuses on “the particular issue of
rogue states seeking to acquire WMD,” Walter B. Slocombe, Force, Pre-emption and Legiti-
macy, 45 Survival 117, 124 (2003), the circumstances in which the administration envisions
taking preventive military action remain open ended: The United States may act, for instance,
“before threats have fully materialized.” Condoleezza Rice, Wriston Lecture, October
1, 2002, available at http://www.whitehouse.gov/news/releases/2002/10/print/20021001“
6.html. Rice did add some quali¬cations: “[T]his approach . . . does not give a green light “
to the United States or any other nation “ to act ¬rst without exhausting other means,
including diplomacy. . . . The threat must be very grave. And the risks of waiting must far
outweigh the risks of action.” But, as discussed in the National Security Strategy, the doctrine
does not require an actual or an imminent armed attack. National Security Strategy, supra
note 78, at 15.
88 For a more wide-ranging survey of global public opinion in the aftermath of the 2003
Iraq War, discussing, among other things, attitudes toward the United States and its foreign
policy, see Pew Research Center for the People & the Press, Views of A Changing World 2003,
June 3, 2003, available at http://people-press.org/reports/display.php3?ReportID=185. For
a thoughtful critique of the preemption doctrine, see Miriam Sapiro, Iraq: The Shifting Sands
of Preemptive Self-Defense, 97 Am. J. Int™l L. 599 (2003).
89 The 2006 U.S. National Security Strategy has a somewhat different tone than the 2002
version and emphasizes a “strong preference” for “address[ing] proliferation concerns
through international diplomacy, in concert with key allies and regional partners.” National
Security Strategy of the United States of America, March 16, 2006, at 23, available at
http://www.whitehouse.gov/nsc/nss/2006/. The 2006 strategy also states, however, that
“[t]he place of preemption in our national security strategy remains the same.” Id.
90 Colin L. Powell, A Strategy of Partnerships, 83 Foreign Affairs 24 (2004) (“As to preemp-
tion™s scope, it applies only to the undeterrable threats that come from nonstate actors such
as terrorist groups”).
46 CAN MIGHT MAKE RIGHTS?


of¬cials also suggested limits on the doctrine.91 This is important because
although most U.S. allies understand the unique challenges involved in effec-
tive self-defense against terrorists,92 they are less likely to support “preemp-
tive” force to prevent states from developing military capabilities. The fur-
ther the United States moves from self-defense to actual or imminent armed
attack, the harder it will likely be to convince others of the legitimacy of mili-
tary intervention93 or to secure broad international support for post-con¬‚ict
reconstruction, as the recent experience in Iraq so clearly illustrates.

C. The 2003 War in Iraq
Although the Bush Administration™s high-pro¬le preemption doctrine no
doubt fueled the controversy surrounding its decision to go to war against
Iraq in March 2003, the intense international discord over that war had
much deeper roots. In fact, the U.S. and British decision to resort to force
against Iraq in the face of a deeply divided UN Security Council was the cul-
mination of long-standing differences among Council members over Iraq™s
persistent violations of the disarmament obligations imposed at the end of
the 1991 Persian Gulf War. The Security Council™s own failure to stand up to

91 The State Department Legal Adviser, for example, offered an interpretation of the legal
basis for preemptive military action that sought to place it more clearly within parameters
of anticipatory self-defense. See William H. Taft, IV, Legal Adviser, Department of State,
The Legal Basis for Preemption, published by the Council on Foreign Relations, November
18, 2003, available at http://www.cfr.org/publication.php?id=5250. Taft wrote that “The
President™s National Security Strategy relies upon the same legal framework applied to the
British in Caroline and to Israel in 1981. The United States reserves the right to use force
preemptively in self-defense when faced with an imminent threat. While the de¬nition of
imminent must recognize the threat posed by weapons of mass destruction and the intentions
of those who possess them, the decision to undertake any action must meet the test of
necessity. After the exhaustion of peaceful remedies and a careful, deliberate consideration
of the consequences, in the face of overwhelming evidence of an imminent threat, a nation
may take preemptive action to defend its nationals from unimaginable harm.” Id., at 5“6
(emphasis added).
92 Because terrorists generally provide no warning and are not deterrable in the way that
state actors might be, disrupting terrorist networks before they can attack and preventing
them from acquiring weapons of mass destruction is necessary to exercising a meaning right
of self-defense. In the case of al-Qaeda, its previous attacks and clear policies indicate an
ongoing plan to attack and raise a clear presumption of future attacks. More generally,
because of terrorists™ disregard for the rules of international law and their use of stealth and
deception to attack innocents, less certainty regarding the imminence or precise time and
place of their attack is needed to act in self-defense. Working cooperatively with states, when
possible, to disrupt terrorist cells on their territory nevertheless remains critically important.
For discussion of self-defense in response to terrorism, see Jane E. Stromseth, New Paradigms
for the Jus ad Bellum?, 38 Geo. Wash. Int™l L. Rev. 561 (2006); Terrence Taylor, The End of
Imminence, Wash. Q. (Autumn 2004), at 57; Christopher Greenwood, International Law
and Pre-emptive Use of Force: Afghanistan, Al-Qaida, and Iraq, 4 San Diego Int™l L. J. 7
(2003).
93 See Report of the Secretary-General™s High-Level Panel on Threats, Challenges and Change,
supra note 61, at 63 (distinguishing military action when a “threatened attack is imminent”
from preventive military action against “a non-imminent or non-proximate” threat).
47
INTERVENTIONS AND INTERNATIONAL LAW: LEGALITY AND LEGITIMACY


Saddam Hussein™s de¬ance had undermined the effectiveness and credibility
of the Council™s disarmament mandates and inspection regime for years.
In making the political case for war, the United States, Britain, and their
allies argued that they were intervening to enforce Security Council mandates
against a brutal dictator who had used weapons of mass destruction against
his own people and another state and who, they argued, was harboring and
rebuilding WMD capabilities. The Bush Administration stressed the danger
posed by Saddam Hussein to the security of the United States, but the degree
of imminence of this “continuing” or “gathering” threat was never made
clear. The three other permanent members of the Security Council “ France,
Russia, and China “ joined by other states, strongly disputed the political
case for war, at least absent a more sustained effort to give the newly revived
international inspections process a chance to clarify the WMD situation on
the ground in Iraq.
The intense political disagreement over the legitimacy of going to war
against Iraq deprived the intervention of the undisputed legality that explicit
Security Council authorization would have provided. Instead, the major pro-
tagonists on the Security Council differed strongly over the legality of the
war.94 The United States and Britain argued, as they had throughout the
1990s, that Iraq™s violation of the Gulf War cease-¬re terms set forth in
Resolution 687 constituted a “material breach” that reactivated Resolution
678™s authorization to use force.95 Invoking this theory, the United States and
Britain “ joined by France “ used force against Iraq in 1993.96 In 1998, after
the Security Council found Iraq in “¬‚agrant violation of resolution 687,”
the United States and Britain again acted on this theory.97 Other Security

94 The paragraphs that follow draw on Stromseth, Law and Force after Iraq, supra note 79,
at 629“631.
95 See Jules Lobel & Michael Ratner, Bypassing the Security Council: Ambiguous Authoriza-
tions to Use Force, Cease-Fires and the Iraqi Inspection Regime, 93 Am. J. Int™l L. 124,
150“152 (1999); Ruth Wedgwood, The Enforcement of Security Council Resolution 687:
The Threat of Force Against Iraq™s Weapons of Mass Destruction, 92 Am J. Int™l L. 724
(1998).
96 Lobel & Ratner, Bypassing the Security Council, supra note 95, at 150“151. This use of
force was in response to Iraq™s obstruction of inspections and was preceded by statements
by the president of the Security Council denouncing Iraq™s actions as a “material breach”
of Resolution 687 and warning of “serious consequences” for “continued de¬ance.” Id.,
at 151; Wedgwood, The Enforcement of Security Council Resolution 687, supra note 95,
at 727. The UN Secretary-General subsequently stated that the military action “was car-
ried out in accordance with a mandate from the Security Council under resolution 678
(1991)” and “was in accordance with the resolutions of the Security Council and the Char-
ter of the United Nations.” U.N. Doc.SG/SM/4902/Rev.1, Transcript of Press Conference
by Secretary-General, Boutros Boutros-Ghali, Following Diplomatic Press Club Luncheon
in Paris on January 14, 1993, U.N. Doc. SG/SM/4902/Rev.1, at 1 (1993).
97 S.C. Res. 1205, para. 1 (November 5, 1998) (UN resolutions are available at
http://www.un.org); Lobel & Ratner, Bypassing the Security Council, supra note 95, at
154; see also Wedgwood, The Enforcement of Security Council Resolution 687, supra note
95, at 726“728.
48 CAN MIGHT MAKE RIGHTS?


Council members contested this view, and the question whether a “mate-
rial breach” by Iraq gave a coalition of willing states a right to use force to
disarm Iraq was hotly debated in the ¬nal months of 2002 during Security
Council deliberations. The United States and Britain sought a resolution that
would maximize the chances of effective coercive diplomacy to disarm Iraq
and that would not require a second resolution to authorize force. France
sought to ensure an additional Security Council opportunity to determine
what response should follow from Iraqi noncompliance.
Adopted unanimously in November 2002, Security Council Resolution
1441 was a “split the difference” solution. The United States and Britain
got a Council decision that “Iraq has been and remains in material breach”
of its disarmament obligations under Resolution 687, a decision that any
Iraqi failures to comply with Resolution 1441 would “constitute a further
material breach,” and a reiteration of “serious consequences” for noncom-
pliance.98 France, for its part, got an obligation that Iraqi violations would
be “reported to the Council for assessment” and that the Council would
“convene immediately . . . in order to consider the situation and the need for
full compliance with all of the relevant Council resolutions in order to secure
international peace and security.”99
Resolution 1441, in short, gave something to each of the contending
camps and was essentially an agreement to disagree over the need for an addi-
tional Security Council resolution authorizing force. French Ambassador to
the United States Jean-David Levitte admitted as much in recounting how
he advised against introducing the so-called “second resolution” that the
British, Americans, and Spanish later sought on Iraq.100 But the British, as
well as other U.S. allies, viewed such an additional resolution as extremely
important politically; they wanted to make a concerted ¬nal effort to achieve
Council consensus, which clearly would have enhanced the legitimacy of
any subsequent action. Express Council authorization would have been far

98 S.C. Res. 1441, paras. 1, 4, 13 (November 8, 2002). Resolution 1441 offered Iraq “a ¬nal
opportunity to comply with its disarmament obligations” and established “an enhanced
inspection regime with the aim of bringing to full and veri¬ed completion the disarma-
ment process” established by Resolution 687 and subsequent Council resolutions. Id.,
para. 2.
99 Id., paras. 4, 12.
100 “Weeks before it was tabled,” Ambassador Levitte has stated, “I went to the State Depart-
ment and to the White House to say, don™t do it. First, because you™ll split the Coun-
cil and second, because you don™t need it. Let™s agree to disagree between gentlemen, as
we did on Kosovo, before the war in Kosovo. . . .” Jean-David Levitte, France, Germany
and the U.S.: Putting the Pieces Back Together, address at the Council on Foreign Rela-
tions (March 25, 2003), at 14, available at http://www.cfr.org/publication.php?id=5774. In
Kosovo, NATO members used force in response to the deteriorating humanitarian situation
there without seeking Council authorization in the face of the publicly stated opposition of
Russia and China. See Stromseth, Rethinking Humanitarian Intervention, supra note 47,
at 234.
49
INTERVENTIONS AND INTERNATIONAL LAW: LEGALITY AND LEGITIMACY


preferable legally as well. In the end, however, the Security Council™s unwill-
ingness to adopt the proposed “second resolution” re¬‚ected the lack of broad
international support for commencing military action against Iraq “ at least
without giving the recently revived inspections process a more sustained
effort.
The 2003 Iraq War thus began without the strong political support and
uncontested legal authority that marked the 1991 Gulf War.101 Not only
was there no explicit Security Council authorization,102 but there was also no
actual or imminent armed attack by Iraq that would place a forcible response
clearly within well-accepted parameters for self-defense.103 Instead, consis-
tent with their long-standing position, the United States and Britain argued
that Resolution 678 provided continuing authority to use force in the face
of material breaches by Iraq of its disarmament obligations. But the sharp
international disagreement over the war™s legality and legitimacy demonstra-
bly affected the willingness of states to contribute forces both to the combat
phase and to the critically important follow-on mission to stabilize Iraq and
support the transition to a viable and representative government.
Britain contributed signi¬cant forces to the intervention, and a number
of other states “ Spain, Poland, Italy, among others “ contributed forces
for stabilization missions close on the heels of the end of major combat.
But key NATO allies that had participated in the Kosovo intervention “
France and Germany, in particular “ declined to participate. What is more,
although the Security Council, in May 2003, af¬rmed the authority of the
occupying powers in Iraq “ and invited other states to contribute to postwar

101 For a wide range of viewpoints about the lawfulness of the military action against Iraq, see
Agora: Future Implications of the Iraq Con¬‚ict, 97 Am J. Int™l L. 553 (2003).
102 The United States, Britain, and Spain withdrew the so-called “second resolution” in the
face of a French threat to veto it and a broader lack of support. Even the second resolution
fell short of an explicit authorization of force. It would, however, have af¬rmed that Iraq
had failed to take the ¬nal opportunity to disarm afforded by Resolution 1441. See U.S.-
British Draft Resolution Stating Position on Iraq, The New York Times, Feb. 25, 2003,
at A14.
103 Neither the United Kingdom nor Australia invoked self-defense as a legal justi¬cation for mil-
itary action against Iraq. See UK Attorney General Lord Peter Henry Goldsmith, Legal Basis
for Use of Force Against Iraq (March 17, 2003), available at http://www.ukonline.gov.uk; see
also the Australian Attorney General™s Department and the Department of Foreign Affairs
and Trade, Memorandum of Advice on the Use of Force Against Iraq (March 18, 2003),
available at http://www.smh.com.au/articles/2003/03/19/1047749818043.html. Nor did the
United States invoke its inherent right of self-defense under Article 51 of the UN Charter in
the legal justi¬cation it submitted to the UN Security Council. Letter Dated March 20, 2003
from the Permanent Representative of the United States of America to the United Nations
Addressed to the President of the Security Council, U.N. Doc. S/2003/351, March 21, 2003
[arguing that “[t]he actions being taken are authorized under existing Council resolutions,
including its resolutions 678 (1990) and 687 (1991)”]. Moreover, despite references to pre-
emption in President Bush™s speech to the nation on the eve of war, the United States declined
to present such a legal rationale to the Security Council.
50 CAN MIGHT MAKE RIGHTS?


tasks “ many states, including India, Pakistan, Turkey, France, Germany,
Russia, and various Arab states “ made it clear that they wanted a stronger
and more explicit UN mandate before committing their troops and resources.
Even after a clearer UN authorization was provided, the lack of a leading UN
role, persistent insecurity on the ground in Iraq, and ongoing disagreement
over the decision to go to war in the ¬rst place have continued to undermine
U.S. efforts to seek greater international involvement in Iraq.
Despite the disputed legality of the intervention itself, circumstances on
the ground might have led to a greater sense of legitimacy over time. Cer-
tainly, the perceived legitimacy of the U.S.-led intervention would have been
greatly bolstered if large numbers of WMD had been seized in Iraq after the
invasion. Instead, the lack of WMD, and the ongoing instability and vio-
lence in Iraq, fueled by a sustained insurgency against the occupation and
the subsequent transitional governments, have undercut the intervention™s
legitimacy in the eyes of many governments and publics around the world.
Although legality at the outset is no guarantee either of success or of sus-
tainable international contributions and support, it does provide a degree of
protection against a negative spiraling effect of international criticism and
withdrawal when conditions on the ground get tough, as they so often do
in ambitious interventions that seek to stabilize and rebuild countries after
con¬‚ict.


IV. INTERNATIONAL LAW AND LEGITIMATE OBJECTIVES
OF INTERVENTION

Just as clear international legal authority can in¬‚uence whether states are pre-
pared to join or support an intervention, international law also has an impact
on the overarching goals that intervening states legitimately can pursue. Inter-
veners can no longer seek political dominion and territorial aggrandizement
without regard to international opinion or the views of the local population.
Today, principles of self-determination and international human rights law
constrain the objectives that interveners legitimately can seek to advance.
Whether interveners assist in ushering in independence, as Australian-led
forces did in East Timor, or depose the repressive Taliban regime as a neces-
sary step to unraveling al-Qaeda™s hold on Afghanistan, as U.S.-led forces did
at the end of 2001, interveners face strong international expectations that
they will help build democratic, representative, and human rights-respecting
governance structures and legal institutions in the wake of military action.
In many instances, the Security Council has adopted resolutions expressly
af¬rming such objectives.
Even in recent interventions whose legal basis has been controversial,
international legal norms have in¬‚uenced the objectives of the intervention.
NATO™s intervention in Kosovo and the U.S.-led intervention in Iraq in 2003,
51
INTERVENTIONS AND INTERNATIONAL LAW: LEGALITY AND LEGITIMACY


for instance, were not carried out for reasons of territorial aggrandizement
or dominion. On the contrary, in both cases the interveners have sought
to establish security and to help build governance structures that advance
fundamental goals of self-determination and protection of human rights,
although Kosovo™s unresolved political status has complicated matters con-
siderably. In both cases, moreover, the interveners sought subsequent reso-
lutions from the Security Council to bolster international support for their
post-con¬‚ict rebuilding efforts, though in Iraq the United States was reluc-
tant to cede any signi¬cant authority to the United Nations.
Not only the overarching goals of an intervention, but also more spe-
ci¬c reconstruction efforts, are in¬‚uenced in concrete ways by international
legal norms. Interveners must take fundamental international human rights
principles into account both in their own conduct and in building legal and
political institutions in post-con¬‚ict societies. In assisting local leaders as
they draft constitutions, for instance, interveners have stressed the protec-
tion of minority rights and the rights of women. Likewise, in establishing
police forces, interveners have sought to provide training and guidelines for
action that respect fundamental human rights. Pursuing legal accountability
for atrocities in a way that meets international standards of due process has
been an important goal in many recent interventions.
Interveners must operate within an accepted legal framework as they
engage in post-con¬‚ict reconstruction and work to strengthen the rule of
law. In most of the cases studied in this book, interveners have sought and
obtained clear Security Council authorization under Chapter VII of the UN
Charter to engage in a range of post-con¬‚ict rebuilding activities. In some
cases, as in Iraq, interveners have operated under the law of occupation,
supplemented by Security Council resolutions.104 Whether they seek Secu-
rity Council authorization, host state consent, or operate under principles of
occupation law, interveners will need to take seriously the question of legal
authority as they work to rebuild and even transform legal and political
institutions in post-con¬‚ict societies.105
Finally, interveners themselves must comport with international standards
of conduct or they will be soundly and justi¬ably criticized. The abusive mis-
conduct of some U.S. personnel in the Abu Ghraib prison in Iraq, for exam-
ple, shows the understandable outrage that will erupt when interveners fail
to abide by fundamental standards of international law. If interveners seek
to strengthen the rule of law domestically “ and encourage lawful behavior
by local authorities “ they must not undermine their own credibility by vio-
lating basic legal norms themselves.
104 For analysis, see David J. Scheffer, Beyond Occupation Law, 97 Am. J. Int™l L. 842 (2003);
Gregory H. Fox, The Occupation of Iraq, 36 Geo. J. Int™l L. 195 (2005).
105 See Bruce M. Oswald, Model Codes for Criminal Justice and Peace Operations: Some Legal
Issues, 9 J. Con¬‚ict & Security L. 253 (2004) (discussing legal authority based on Security
Council resolutions under Chapter VII, host country consent, and occupation law).
52 CAN MIGHT MAKE RIGHTS?

V. LOCAL PERCEPTIONS OF AN INTERVENTION™S LEGITIMACY

Local perceptions of an intervention™s legitimacy are, of course, critical in
building support for new or reformed institutions that aim to advance the
rule of law. In many cases, interveners ¬nd themselves climbing a steep wall
of local skepticism. Even if they are fairly seen as liberators from tyranny or a
bulwark against further civil war, there is no honor for domestic populations
in being the object of an intervention. Local gratitude can be quickly vitiated
by a sense of humiliation or disappointed expectations if foreign occupiers
fail to deliver an improved quality of life.
Though perhaps not of crucial interest to the local population, disputes
about an intervention™s legality can have a signi¬cant impact on an inter-
vention and its ultimate, long-term success. For one thing, other states that
might help rebuild a war-torn country may be less likely to contribute if the
intervention™s legality and legitimacy is contested. In the case of Iraq, this
was important to European and other governments, and the refusal of many
states to participate made the occupation primarily American, complicating
legitimacy within Iraq. Broad-based coalitions with clear international legal
authority can help to reassure skeptical domestic audiences about an inter-
vention™s purposes, giving domestic spoilers less latitude to opportunistically
undermine reconstruction efforts or to appeal to potential regional spoilers.
And regional actors themselves will face more uni¬ed international pressure
not to undermine post-con¬‚ict reconstruction.
The domestic legitimacy of an intervention will turn on many additional
factors, including the character of the previous regime or situation. Depend-
ing largely on what preceded it, international interventions will begin with
different baselines of legitimacy among the local population. In Afghanistan,
historic hostility toward outside intervention was mitigated by comparison
with the brutal Taliban regime and decades of bitter civil war, giving the
U.S.-led intervention a very strong base of domestic support.106 Likewise,
Kosovo™s majority Albanian population, subjected to long-standing discrimi-
nation, welcomed NATO™s intervention. But various groups within a country
will view an intervention differently depending on their interests. Kosovo™s
Serb population, for instance, has a very different view of NATO™s interven-
tion; likewise, in Iraq, the Kurdish population overwhelmingly supported the
U.S-led intervention in contrast to opposition by a majority of Iraq™s Sunni
population.107 Different domestic groups will usually be advantaged, or

106 In a January 2006 poll, 82 percent of Afghans surveyed said that “overthrowing the Tal-
iban government was a good thing for Afghanistan” and 83 percent expressed a favorable
view of “the US military forces in our country.” New WPO Poll: Afghan Public Over-
whelmingly Rejects al-Qaeda, Taliban, January 11, 2006, available at http://www.world-
publicopinion.org.
107 For public opinion surveys in Iraq, see the Brookings Iraq Index, January 17, 2006, at 38,
available at http://www.brookings.edu/fp/saban/iraq/index.pdf (citing October/November
53
INTERVENTIONS AND INTERNATIONAL LAW: LEGALITY AND LEGITIMACY


disadvantaged, by an intervention, and a persistent or widening gap between
“winners” and “losers” can seriously undermine the prospects for ultimate
success.
The legitimacy of an intervention in local eyes will also depend on the
goals that interveners pursue and their effectiveness in meeting local needs.
Are interveners able to establish basic security quickly and deal credibly and
robustly with violent obstructionists? Can interveners address concrete needs
for food, water, electricity, health care, and so forth? As we discuss in later
chapters, interveners have a window of opportunity to demonstrate that con-
ditions are changing for the better “ an opportunity to build momentum and
domestic support for reform. But this window closes quickly. Moreover, the
¬rst impressions made by interveners can be critical in building public con¬-
dence and enlisting domestic support for longer-term reform. Furthermore,
how interveners conduct themselves “ including whether they abide by basic
standards of human rights and human decency “ will shape local perceptions
of legitimacy and can leave a lasting imprint on domestic populations.
Just as interveners must do their best to adhere to international standards
of conduct and avoid undercutting their rule of law message, they must also
understand and show respect for local culture if they hope to gain the support
and con¬dence of domestic audiences. A “cultural dilemma” can arise, how-
ever, presenting interveners with dif¬cult choices. Local cultural mores and
traditions that enjoy strong popular legitimacy may at times be in tension
with international human rights principles and objectives. This raises hard
questions: how much transformative change can realistically be “imprinted”
upon a post-con¬‚ict society by outsiders? And where gaps do appear “ espe-
cially in the areas surrounding the rule of law (e.g., governance, minority
protections, women™s rights) “ how can the seeds of reform be planted and
sustained so that when change does occur it will enjoy domestic legitimacy?
Ways in which international and local leaders, as well as international organi-
zations, have grappled with these dif¬cult challenges are examined in various
places thoughout this book.


CONCLUSION

In each of the post“Cold War military interventions that we address, the
question of legal authority to intervene has been an important one. The
UN Security Council expressly authorized some of these interventions and
articulated agreed objectives. Other interventions were undertaken in self-
defense, with strong international support. Even in cases where the legal basis
for action was sharply contested, as in the 2003 Iraq War and NATO™s 1999

2005 Time“ABC News Poll, in which 80 percent of those surveyed in the Kurdish area said
the United States “was right to invade Iraq,” in contrast to 16 percent in the Sunni area and
58 percent in the Shi™ite area).
54 CAN MIGHT MAKE RIGHTS?


intervention in Kosovo, the intervening states argued that their decision to
use force was consistent with Security Council resolutions and objectives. In
contrast to much earlier historical periods, in which states were largely free
to use force to further their own territorial and political ambitions, and to
conduct interventions however they saw ¬t, states using force in the post“
Cold War era have sought to defend the lawfulness and legitimacy of their
interventions in relation to fundamental international legal norms, including
not only the UN Charter but also fundamental principles of international
human rights law.
Indeed, despite international discord over some recent military interven-
tions, the UN Charter remains the agreed international legal framework
under which states seek to defend and evaluate decisions to use force.108
If anything, the need to explain and justify one™s actions in relation to the
Charter™s norms governing force is becoming more important in building
effective coalitions with democratic allies whose domestic publics take these
norms seriously “ as the United States found in working with Britain and
other allies in Iraq. The issue of justi¬cation may become increasingly more
important in an information age in which publics are exposed to broader
arrays of critical information and are more easily mobilized.
The widespread acceptance of the Charter framework “ and the fact that
states using force seek to explain and justify their actions within that frame-
work “ does not preclude strong disagreements about what the Charter per-
mits or prohibits. An intervention™s legality, moreover, is only one of many
factors “ most fundamentally, national security interests and political prior-
ities “ that bear on state decisions to use force or to assist in post-con¬‚ict
reconstruction. Governments need to be convinced that participation serves
their national interests and values and that the effort itself has some reason-
able prospect of success. But the Charter™s norms are such a fundamental part
of the architecture of international law that intervening states ignore them at
their peril, particularly if those states want other countries to assist in inter-
ventions and in subsequent post-con¬‚ict rebuilding. The terrorist threats of
the post-9/11 era “ demanding as they are “ have not fundamentally changed
this reality.109

108 Although the inability to forge common ground on the UN Security Council over Iraq and
over Kosovo before intervention were low moments for the UN system, it is exaggerated
and premature to claim that the UN Charter is “dead,” as some commentators have done.
See Michael J. Glennon, Why the Security Council Failed, 82 Foreign Affairs 16“18, 24
(May/June 2003). For a critique of Glennon™s argument, see Stromseth, Law and Force after
Iraq, supra note 79, at 632“634.
109 Thwarting terrorist networks bent on acquiring weapons of mass destruction will require
the active cooperation and assistance of many allies. So ¬nding common ground on the
legitimate scope of military action in self-defense and the appropriate role of law enforcement
will be important to effectively countering this threat. See Stromseth, Law and Force after
Iraq, supra note 79, at 637“640.
55
INTERVENTIONS AND INTERNATIONAL LAW: LEGALITY AND LEGITIMACY


International law “ particularly human rights law and principles of self-
determination “ also in¬‚uences the goals that interveners can legitimately
pursue as they work to rebuild war-torn countries. The demands of post-
con¬‚ict reconstruction, and the speci¬c challenges of building the rule of
law after intervention, are enormous. Not only tremendous patience, per-
sistence, and considerable resources but also the support and contributions
of many states and organizations will generally be vital to success. Acting
consistently with fundamental norms of international law may not guaran-
tee international support or assure domestic legitimacy, but violating agreed
principles of international law can certainly undercut both. Moreover, pre-
cisely because building the rule of law after intervention depends on strength-
ening cultural commitments to “ and public con¬dence in “ the very idea of
law, the perceived legitimacy of the interveners™ own conduct inevitably will
in¬‚uence the effectiveness of their efforts.
In the chapters that follow we explore the many complex challenges “
social, political, normative, institutional “ confronting interveners and
domestic reformers who seek to strengthen the rule of law in post-con¬‚ict

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