Energized by War Fatigue
PDF Print Version Vol 3, Issue 2
Editorial board: Anne van Aaken, Jutta Brunnée, Jan Klabbers, André Nollkaemper (editor-in-chief)
Mary Ellen O’Connell
University of Notre Dame
Energized by War Fatigue
2014 is finally here. It is the year the United States will end its combat role in Afghanistan after 13 years. The end will come not because U.S. war aims will be met, but because the American people, their political leaders, and their allies have had enough. They are tired, fatigued. “War fatigue” is a common expression these days, signaling one of those moments in history for progress in law against war. In the past, war weary populations have accepted new restrictions on resort to armed force in times like these. Judging from this history, the world is overdue for a new effort. There has been no significant new restriction on resort to war since the United Nations Charter was adopted almost 70 years ago.
This reflection considers the reasons for the long period of stagnation, and what might be accomplished if we get past the obstacles. Here are just three areas ripe for progressive development of the law:
° Restricting intervention by invitation
° Extending the prohibition on resort to force to civil war
° Raising the necessity threshold
The rationale for expanding the law in these areas is generally self-evident. What is less clear is why we have not done so to date. Adjunct areas to the jus ad bellum, international humanitarian law (IHL) and arms control, have seen impressive development.
One possible explanation for the failure to grow the jus ad bellum may lie in the fact that supporters of restraint on force have had their hands full just trying to preserve current law. The UN Charter rules have been under pressure almost as long as they have been around. As early as 1951, Julius Stone was arguing that the Charter’s prohibition on resort to force in Article 2(4) should be interpreted as restricting force only when aimed against political independence and territorial integrity. Others followed with their own interpretations of Article 51on self-defense, UN Security Council authority in Article 39, and other provisions. Yet, by 2005, at the United Nations World Summit in New York the consensus decision was to retain the rules on the use of force as drafted in 1945. UN members committed to “strictly” comply with those rules. That was a victory of sorts, but no one suggested enhancing the rules against resort to force. If anything, the Security Council had its authority broadened to clearly include a right to authorize force in humanitarian crises.
The principal obstacle to new law appears to be an assumption by those seeking to dilute Charter restrictions that military force is an effective means for accomplishing a variety of desiderata from humanitarian causes to suppressing terrorism to arms control. Military force is viewed as a tool of change, not a method of last resort. War fatigue, however, is opening minds to the true nature of military force, which imposed heavy costs for few gains in the civil wars and interventions since the end of the Cold War.
Moments of clarity such as this have motivated action in the past toward expanding the restrictions on resort to force and creating alternatives for peaceful dispute settlement. The establishment of modern international law corresponded with the war fatigue at the end of Europe’s catastrophic Thirty Years’ War. When the bloody U.S. Civil War ended, large segments of the American population and both political parties turned to the promotion of arbitration as an alternative to war. Winning the Alabama Claims case against Great Britain fueled the enthusiasm.
Following the First World War, states committed to the Covenant of the League of Nations with its limits on resort to war and institutions to prevent future wars. In the midst of the carnage of the Second World War, President Roosevelt inserted a general prohibition on resort to force into the draft United Nations Charter. The final version of the Charter contains only two express exceptions to the prohibition for the Security Council and for self-defense.
The Cold War helped to preserve the Charter. Plenty of force was used but only rarely were claims made to dilute the restrictions. Soviet claims for the right to spread communism through force (the Brezhnev Doctrine) were rejected just as readily as U.S. claims to a right of pro-democratic intervention (the Reagan Doctrine). When the U.S. or the Soviet Union resorted to major force, they generally attempted to manufacture a situation that conformed to a Charter exception. When the U.S. became involved in the Vietnam War in 1959, for example, it characterized Vietnam as two states, so that intervening on the side of the South was in collective self-defense to aggression by the North. (In 1963, the CIA assassinated South Viet Nam’s President Diem who had issued the invitation to the U.S. to assist in defending the South.)
When the Cold War finally ended, the Charter rules on the use of force were largely intact. The U.S. and the Soviet Union voted together to condemn the Iraqi invasion of Kuwait in 1990 as a violation of Article 2(4). The Iraqi invasion was also a rare attempt to conquer and thereby extinguish a member of the United Nations. The Charter had indeed been successful in ending one of the most egregious forms of the use of force: conquest. The liberation of Kuwait ensured that success.
Then an odd thing happened in the history of international law. Despite the end of the Cold War and Superpower unanimity over Kuwait, world leaders did not take the opportunity to expand the law against resort to force. Instead, certain human rights advocates began to demand the use of military force to respond to human rights violations—they wanted “humanitarian intervention” (HI). It seems that the use of force to liberate Kuwait was so successful that those struggling to prevent crimes against humanity wanted military force applied to that problem as well. If Kuwait could be liberated, Bosnian Muslims could be protected.
The claim was understandable but based on a faulty assessment of how military force can be used effectively. From 1991 until today, untold resources have poured into the advocacy for the use of force in humanitarian crises. Traditional UN peacekeeping, indisputably successful in attaining its limited goals, was abandoned. No longer would peacekeepers only be sent when a real ceasefire was in place and all parties to a conflict agreed to the deployment. Even the ability to negotiate ceasefires and all-party agreements seemed lost. The great energy and creativity of international civil society exploded around concepts such as “Responsibility to Protect,” not the movement for creative non-violence.
In August 2013, the United Kingdom Parliament debated intervening in Syria. Past interventions were finally assessed for what they had gained and at what cost. Parliament voted no. That vote pressured President Obama to consult with the United States Congress, providing time to successfully negotiate an agreement to rid Syria of chemical weapons.
Military leaders had cautioned against relying on the armed forces to do a diplomat’s job. General Sir Michael Rose, commander of UN forces in Bosnia, was one of the first to do so in response to HI advocacy. In January 2014, General Martin Dempsey, Chairman of the U.S. Joint Chiefs of Staff, similarly pointed to a deep lack of understanding of the military’s role.
Nevertheless, there is a danger post-Syria that rather than complying with international law on the use of force and even moving beyond current law, the next development will simply be toward using less expensive force—think drone attacks and Stuxnet worms. To oppose this insidious slide to new uses of military force that could crystalize into accepted new interpretations of the Charter, a counter-point movement for greater restrictions is needed. Such a movement would do more than restate support for existing rules; it would seek new restrictions, seizing the initiative. Consider the following:
The right to intervene by invitation could be restricted. Such invitations are not mentioned in the Charter, which only indicates a right to intervene in collective self-defense. In pre-Charter days a government in effective control could invite outside assistance until insurgents reached the strength of belligerency. At that point any outside state wishing to retain neutral rights had to withdraw. Following the adoption of the Charter, the practice of intervening in civil war has continued but with declining compliance with pre-Charter restrictions. In a 1985 article, Louise Doswald-Beck reviewed the state practice of the time showing that many states protested against such interventions as interfering with self-determination. The example of France’s two-dozen military interventions in its former African colonies since 1962 demonstrates the issue. Not only do these interventions raise neo-colonial concerns, it is difficult to find any good outweighing harm, certainly over time. The interventions are associated with escalation in fighting, the perpetuation of weak governments, and the inculcation of the culture of violence. Intervention by invitation could be restricted to assisting governments only to the point of fighting reaches the level of civil war.
The prohibition on resort to force could be extended to civil war. International human rights and humanitarian law provide restrictions on resort to killing, but these restrictions can be bolstered by extending Article 2(4) to resort to force within nations by governments and their opponents. Civil war likely evaded restriction in the Charter because it was viewed as internal matters beyond the Charter’s scope. That understanding, however, predates the human rights revolution. Many matters once thought to be part of domestic jurisdiction are no longer. Conceptually, there is no reason the jus ad bellum cannot extend to resort to civil war.
Raise the necessity threshold. In the jus ad bellum, the principle of necessity currently mandates that force be used only as a last resort and only when there is a reasonable chance of military success. In peacetime, resort to lethal force is further restricted by the necessity to save lives immediately. The same restriction could be added to jus ad bellum. International humanitarian law is already moving in this direction. A higher necessity threshold would be consistent with other restrictions on resort to force, such as the requirement that an armed attack triggering self-defense be a significant use of force. A higher threshold would reinforce the existing restrictions on using major force, as in the context of terrorist attacks or arms control.
Reinforcement is needed because thanks to new technology, we are at risk of believing that the force prohibited in the Charter means “boots on the ground”, as President Obama phrases it. We risk regularizing the view that if drone-launched missiles are acceptable for law enforcement problems such as terrorism, why not use attack drones for other police matters? China recently considered using a drone to kill a criminal suspect in Burma. A uniform necessity rule in war and peace was proposed at the end of the Cold War; now is the time to revive it.
In conclusion, war fatigue provides an opening to these and other initiatives in the law against war, and can raise our related consciousness about the proper role of military force in forging a world where human rights and the natural environment flourish. If, however, we fail to move progressively, the results may be worse than in the prior decades of stagnation. New technology may lull us into accepting new uses of military force as the norm. We may be especially vulnerable to this quiet revolution given our war weariness. Yet, fatigue is no excuse for inattention or inaction; it can also generate energy for peace.
 Stone cites 1951 for his first public criticism of the standard interpretation of Article 2(4) as a general prohibition on resort to force. See, Julius Stone, Force and the Charter in the Seventies, 2 Syr. J. L. & Com. 1, 6 (1974).
 2005 World Summit Outcome, UN GAOR, 60th Sess., at 22-23, U.N. Doc. A/60/L.1. ¶¶ (Sept. 15, 2005).
 See Int’l Comm’n on Intervention and State Sovereignty, The Responsibility to Protect (2001).
 See Gen. Sir Michael Rose, The Meaning of War, in What is War? An Investigation in the Wake of 9/11, 167 (M.E. O’Connell, ed. 2012).
 Gen. Dempsey’s Remarks at the National Defense University, Jan. 14, 2014, http://www.jcs.mil/speech.aspx?id=1798.
 Louise Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the Government 56 BYIL189 (1989).
 For the definition of armed conflict in international law, see, International Law Association, Final Report of the Use of Force Committee, The Meaning of Armed Conflict in International Law (August 2010), available online at http://www.ila-hq.org/en/committees/index.cfm/cid/1022. See also, the ICRC’s determination that fighting in Syria reached the level of civil war in July 2012. Syria in Civil War, Red Cross Says, BBC, July 15, 2012, http://www.bbc.co.uk/news/world-middle-east-18849362.
 Olivier Corten will address this subject in his course, Rebellion and International Law, at The Hague Academy, 7-11 July 2014.
 International Committee of the Red Cross, Interpretative Guidance on Direct Participation in Hostilities 2009, http://www.icrc.org/eng/resources/documents/article/review/review-872-p991.htm.
 Edward Wong, Hacking U.S. Secrets, China Pushes for Drones, N.Y. Times (Sept. 20, 2013), http://www.nytimes.com/2013/09/21/world/asia/hacking-us-secrets-china-pushes-for-drones.html?_r=0.
 See, e.g., Francisco Forrest Martin, Using International Human Rights Law for Establishing a Unified Use of Force Rule in the Law of Armed Conflict, 64 Sask. L. Rev. 347 (2001);Theodor Meron & Allan Rosas, Current Development: A Declaration of Minimum Humanitarian Standards, 85 AJIL 375 (1991).