University of California, Berkeley

School of Law
Public Law and Legal Theory Research Paper Series

Using Force

John C. Yoo
UC Berkeley, Boalt Hall

University of Chicago Law Review, Vol. 71, Summer 2004

This paper can be downloaded free of charge from the

Social Science Research Network at:
http://ssrn.com/abstract=530022
 Using Force
John Yoo∗

In the last five years, the United States has fought three wars against other sovereign
nations. In 1999, the United States and its NATO allies conducted an air war against
Serbia to end repression in the province of Kosovo. In response to the September 11,
2001 attacks on the World Trade Center and the Pentagon, the United States invaded
Afghanistan and deposed its ruling Taliban militia for harboring the al Qaeda terrorist
organization. And of course, in the spring of 2003, the United States and a small group of
allies—most prominently Great Britain—invaded Iraq and removed Saddam Hussein
from power. In all three of these conflicts, the United States or its allies have justified
their use of force under international law.

For the most part, however, international lawyers have been highly critical of the
United States’ intervention in Iraq, less so of those in Afghanistan and Kosovo. They see
in Iraq the application of a new doctrine of preventive self-defense at odds with
traditional international law doctrines restricting the use of force. Indeed, leading
international law professors view the war in Iraq as part of an effort to undermine
international law and institutions generally. According to Professor Thomas Franck, for
example, the United Nations (UN) Charter system for restraining the use of force “has
died again, and, this time, perhaps for good.”1 Iraq does not just represent a dispute over
the use of force, but “a much broader plan to disable all supranational institutions and the
constraints of international law on national sovereignty.”2 Even the editors of the
American Journal of International Law can barely contain their pessimism. For them, the
war in Iraq “is one of the few events of the UN Charter period holding the potential for
fundamental transformation, or possibly even destruction, of the system of law governing
the use of force that had evolved during the twentieth century.”3 All appear to agree that
the war in Iraq signaled the transformation of the international rules governing the use of
force, whether for good or ill.

This Article explores the international law governing self-defense. Developments

since the conclusion of World War II, such as the emergence of international terrorism
and rogue states and the easier availability of weapons of mass destruction, have placed
enormous strain on the bright line rules of the UN Charter system. I argue that a more
flexible standard should govern the use of force in self-defense, one that focuses less on
temporal imminence and more on the magnitude of the potential harm and the probability
of an attack. This Article further argues that the consensus academic view on self-
defense—that force is justified only as a necessary response to an imminent attack—
which was largely borrowed from the criminal law, makes little sense when transplanted
to the international context. It concludes by questioning whether self-defense, grounded
as it is in a vision of individual rights and liberties in relation to state action, is the proper
lens through which to view the use of force in international politics. Instead, an approach
that weighs costs and benefits to the stability of the international system, which could be

1
seen as an international public good currently provided by the United States and its allies,
might better explain recent conduct and provide a guide for future action.

This Article seeks to shift the focus of the debate over the use of force toward
instrumental considerations. Much of the work by international legal scholars concerning
the use of force centers on the UN Charter and, as a result, tends strongly toward the
doctrinal.4 Each war provokes a discussion driven towards either finding the armed
conflict illegal, or fitting it within existing doctrine.5 These scholars, perhaps best
represented by Louis Henkin and Thomas Franck, rarely question the central features of
the doctrine: that the use of force is illegal except when authorized by the Security
Council or when used in self-defense. Rather than cases, these scholars attempt to fold
armed conflicts into an evolving system of law that begins with the UN Charter but
attempts to incorporate new norms through the practice of states.

A second perspective, following the realist strain of American foreign policy most
closely associated with George Kennan and Hans Morgenthau, rejects the notion that
international law can govern the use of force because security is too dear an interest to
states.6 Kennan famously said, for example, that a “legalistic-moralistic approach to
international problems” could not work because of the “chaotic and dangerous
aspirations” of other nations.7 Legal scholars, such as Michael Glennon or Judge Robert
Bork, adopt this perspective in concluding that international law is only an obstacle to the
use of force for desirable American interests. Judge Bork has written, for example, that
“international law about the use of force is not even a piety; it is a net loss for Western
democracies.”8

A third body of work is that conducted or inspired by political philosophers. Political

philosophers such as Martha Nussbaum, John Rawls, and Michael Walzer have turned
their attention to the use of force as part of a general examination of the moral rules that
should govern in the international system.9 Through different approaches, they have all
accepted, in varying degrees, the idea of humanitarian intervention—that public morality
either compels or allows the use of force to prevent the systematic abuse of a
population’s human rights by its own state. Taken at face value, the UN Charter does not
permit humanitarian intervention, which leads legal scholars who accept such
intervention to argue that we should dispense with or seriously modify the Charter
system—to maintain the rules but allow enormous exceptions.10

Rather than pursuing these doctrinal or moral approaches, this Article addresses the
rules governing the use of force from an instrumental perspective. It asks what goals the
international system, and its most currently powerful actor—the United States—should
seek to achieve with the use of force, and whether the current rules permit their pursuit.
Part I reviews the UN Charter system’s regulation of the use of force and describes
challenges that have emerged during the postwar period. Part II criticizes current self-
defense doctrine and argues that it must take into account threats that go beyond the great
power conflicts that worried the creators of the UN Charter system. Working within the
existing legal structure, it develops an approach that expands the concept of imminence to
include the magnitude and probability of an attack. Part III considers a different

2
framework for the use of force that is external to the existing international regime. It
argues that rules derived from the criminal law are ill-suited for interactions between
nation-states in an international system characterized by anarchy. It concludes by
suggesting a different model for the use of force that does not borrow from the criminal
law that governs individuals, but rather uses a cost-benefit analysis that maximizes the
stability of the international system.

I.

A.
The end of the Cold War did not signal an end to international armed conflict, or to
American military interventions. In the last decade, the United States has sent troops
abroad into hostile environments in places ranging from Somalia, Haiti, and the former
Yugoslavia to Colombia, the Philippines, and Yemen. It has launched missiles in search
of terrorists in Sudan and Afghanistan. In the last five years, the United States has
launched major wars against sovereign nations, Serbia, Afghanistan and Iraq, with troops
remaining in all three locations and conflict continuing in the last two. This followed
other significant American military conflicts during the Cold War in places such as
Korea, Vietnam, Grenada, and Panama.11

While the pace of wars may not have changed, their purposes seem to have shifted.
During the Cold War, the United States used force as part of a strategy of containment to
prevent the spread of Soviet power.12 Wars occurred, sometimes through proxies, at
points where the United States believed the Soviet Union and its allies sought to expand
their sphere of influence, as in Korea and Vietnam, or to prevent destabilization within its
own sphere, as in Grenada, Panama, and the Persian Gulf. Since the Cold War, American
foreign policy seems to have moved its focus away from spheres of influence—which
ought not be surprising, given the disappearance of the Soviet Union—to new types of
international problems and threats. American intervention in Kosovo, for example,
appeared designed to stop a human rights disaster along the border of NATO. The war in
Afghanistan was not an effort to displace the ruling Taliban militia because Afghanistan
itself posed a direct threat to the United States, but rather because it had allowed its
territory to be used by the al Qaeda terrorist organization, which itself had carried out an
attack on the United States. In Iraq, the United States argued that it was enforcing United
Nations Security Council resolutions that ordered Saddam Hussein to destroy Iraq’s
weapons of mass destruction, which it argued posed a threat to the United States and
nations in the region.

The shifting objectives of these different interventions have also produced different
legal justifications. In Kosovo, the United States refused to provide any legal justification
for the attack on Serbia, although some NATO allies such as Great Britain claimed that
the operation fell within a right of humanitarian intervention.13 In Afghanistan, the United
States argued that a right to self-defense justified the intervention, although that right was
against the al Qaeda terrorist organization, not Afghanistan itself. Any right to use force
against Afghanistan derives from its fault in allowing its territory to be used as a safe
haven by al Qaeda. In Iraq, the United States claimed that its use of force was justified by

3
UN Security Council resolutions, some from as long ago as the 1991 Persian Gulf War,
although it had no explicit authorization contemporaneous with the March 2003 invasion
itself.14

American national security plans may result in even more vigorous and far-reaching
uses of force in the future. In The National Security Strategy of the United States of
America, released in September, 2002, the administration identified several sources of
future threats to US national security. Threats no longer arise from the competition of the
great powers for advantage and influence; the National Security Strategy in fact sees the
prospect of great power wars replaced by a common interest in fighting extremism.
Future threats to the United States come from international terrorism, rogue states,
regional conflicts, and the proliferation of weapons of mass destruction.

In addressing these threats, the administration relies heavily on the option of using
force. Unsurprisingly, the strategy identifies the ongoing war against international
terrorism as the primary challenge to national security. While not armed with the
destructive power of the Soviet Union, terrorist groups seek to acquire weapons of mass
destruction, are likely to have less reluctance to use them, and are motivated by extreme
religious or political beliefs that render them immune to diplomacy or deterrence. They
seek protection in statelessness and target innocent civilians. In order to combat
international terrorist groups, and their state sponsors, the United States has declared that
it will “identify[] and destroy[] the threat before it reaches our borders.”15 While
preferring to act with partners, the administration “will not hesitate to act alone, if
necessary, to exercise our right of self-defense by acting preemptively against such
terrorists.”16

Similar concerns arise from the emergence of “rogue nations.” The Bush
administration’s National Security Strategy defines rogue nations as regimes that
brutalize their citizens and exploit natural resources for the personal gains of their rulers,
that threaten their neighbors and disregard international law, that seek to develop or
possess weapons of mass destruction, that sponsor terrorism, and that “reject basic human
values and hate the United States and everything for which it stands.”17 According to the
administration, these nations seem willing to take more risks, are less amenable to
deterrence, and threaten to use weapons of mass destruction as a means of blackmailing
the United States and its allies. These facts, particularly the threat posed by weapons of
mass destruction, require that the United States have the option to use force, even before
an attack might be temporally imminent. “The greater the threat, the greater is the risk of
inaction—and the more compelling the case for taking anticipatory action to defend
ourselves, even if uncertainty remains as to the time and place of the enemy’s attack.”18
Again, the National Security Strategy considers this “preemptive” action.

The administration virtually admits that this approach is at odds with conventional
international legal notions of self-defense. It takes some comfort in the concept of
anticipatory self-defense, but also acknowledges that the doctrine “conditioned the
legitimacy of preemption on the existence of an imminent threat—most often visible
mobilization of armies, navies, and air forces preparing to attack.”19 The administration

4
argues that “[w]e must adapt the concept of imminent threat to the capabilities and
objectives of today’s adversaries.”20 The National Security Strategy, however, provides
no hints about how to modify imminence—a temporal concept—to address a future of
rogue nations, hostile international terrorist organizations, and the potential
destructiveness of weapons of mass destruction. It simply notes that the “United States
has long maintained the option of preemptive actions to counter a sufficient threat to our
national security.”21 It does not define when a threat might become “sufficient” to justify
the use of force.

The consensus view among most international legal scholars is that the recent
American interventions in Kosovo and Iraq, and the Bush administration’s announced
plans to use force preemptively against rogue nations and international terrorist
organizations, violate core principles of international law.22 They argue that international
rules on the use of force parallel those for individuals. Nations generally do not have a
right to use force against the political independence or territorial integrity of other
nations. Under the United Nations Charter, it is the prerogative of the government to
control the use of force. Without government sanction, force can be used only in self-
defense. While most international law scholars admit that the law includes the right to use
force in anticipation of a coming attack, they argue that this justification is available only
if an attack is imminent.

Under this approach, the last three major interventions waged by the United States
and its allies are of questionable legality. The use of force in Kosovo never received the
authorization of the United Nations Security Council and the United States never claimed
self-defense; thus it violated international law. While the war in Afghanistan did not
receive explicit UN authorization, most seem to agree that it fell within the bounds of
self-defense in response to the September 11 attacks. Some argue, however, that the use
of force in Afghanistan remains controversial because preventing the threat from the al
Qaeda terrorist network did not include the right to change Afghanistan’s regime. Most
international legal scholars believe or assume that the invasion of Iraq flatly violated the
UN Charter.23 They argue that the Security Council had not authorized the invasion and
that any threat to the United States posed by Iraq was speculative at best. They draw a
distinction between preemptive war in anticipation of an imminent attack, which might
be legal, and preventative war, which aims to strike at a nation whose growing
capabilities might pose a threat farther off into the future. As a harbinger of things to
come, these critics argue, the Iraq war and the administration’s national security strategy
demonstrate the use of American power un-tethered to any justification in international
law.

B.
In order to assess these claims, it is necessary to understand the current international
legal regime governing the use of force. Quite literally, the drafters of the UN Charter
designed their system to win the last war, not the next. Written in the wake of World War
II, the UN Charter sought to establish a regime to prevent the large inter-state conflicts
that had plagued the first half of the twentieth century. It attempts to eliminate war in two
ways. First, the Charter renders nation-states physically inviolate in their sovereignty.

5
Article 2(4) requires member states to refrain from the threat or use of force “against the
territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.”24 No exceptions were granted,
such as for preventing humanitarian disasters or rooting out terrorist organizations.25
Second, the Charter established a Security Council that can authorize the use of force “as
may be necessary to maintain or restore international peace and security.”26 The Council
is composed of five permanent members (the United States, Russia, China, Great Britain,
and France) that have an absolute veto on action, and a larger number of rotating
members. Initially, the Charter envisioned that member states would place military forces
at the disposal of a sort of UN armed force, which would enforce the dictates of the
Security Council. No nations ever contributed any forces.

The UN Charter adopted a law enforcement model toward the regulation of violence
between states. States were not to use force in their relations with each other. The law
sought to bring the level of interstate violence in the international system to zero. This
ideal, however, was just that, an ideal. As a safeguard against future international
violence, self-help would not be the order of the day, as it had been before the United
Nations. If a state posed a threat to another, collective self-defense would provide the
response. When authorized by the Security Council, states would respond to interstate
violence by beginning with non-violent sanctions leading up to armed force to restore
international peace and security. Nonetheless, the Charter recognizes that Security
Council action cannot immediately prevent aggression, and so it recognizes a nation’s
right to self-help in its self-defense. Article 51 affirms this “inherent” right:
Nothing 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, until the Security Council has taken measures necessary to maintain
international peace and security. Measures taken by Members in the exercise of the
right of self-defense shall be immediately reported to the Security Council and shall
not in any way affect the authority and responsibility of the Security Council under
the present Charter to take at any time such action as it deems necessary to maintain
or restore international peace and security.27

The UN Charter establishes a regime for the use of force that draws on obvious
domestic criminal law parallels. Generally, the use of force is prohibited as a choice of
conduct toward another state, just as domestically the criminal law forbids individuals
from violence toward one another. A monopoly on legal uses of force rests with a
supranational organization, the United Nations, not individual states, just as domestically
the government controls the legitimate use of force. The system recognizes, however, that
the “government” cannot defend its “citizens” in all circumstances, so it gives a nod to an
“inherent” right of self-defense. Article 51 thus copies the domestic system’s rule of self-
defense in cases in which the government cannot bring its power to bear to prevent illegal
violence. The UN Charter system classifies all uses of force into three categories: legal
use of force authorized by the Security Council; legal use of force in self-defense; and
illegal use of force, which includes everything else.

6
 Some have drawn from this pattern of rules the conclusion that a nation’s right to use
force in self-defense is even narrower in international affairs than it is domestically. They
read Article 51 as limiting the right of self-defense to permit only a response to an actual
“armed attack.”28 Prominent international legal authorities, such as Professor Ian
Brownlie, even argue that Article 51 limits the right to self-defense only after a
transborder attack has taken place.29 Article 51, after all, declares that the inherent right
of self-defense is triggered only “if an armed attack occurs,” suggesting that the attack
must either be in motion or have already taken place before force can be used. These
scholars argue that if the Charter’s restrictions on the use of force were loosened, it would
be impossible to determine whether states honestly had resorted to their right to self-
defense, or were merely invoking Article 51 to conceal their aggressive intentions toward
their neighbors.30 A more liberal approach to the use of force, these scholars argue, would
destabilize the international system by creating a loophole in the Charter’s prohibition on
war as a means for resolving disputes among nations.31

Such an interpretation, however, would mean that the UN Charter extinguished the
pre-existing right under customary international law to take reasonable anticipatory
action in self-defense. There is no indication that the drafters of the UN Charter intended
to limit the customary law in this way.32 In fact, the right to use force in self-defense has
often been thought of as one of the core rights of a nation that cannot be regulated by any
treaty and is subject only to that nation’s judgment. Secretary of State Frank Kellogg, for
example—the same Secretary of State who negotiated the Kellogg-Briand Pact’s effort to
outlaw war— also famously declared that the right of self-defense “is inherent in every
sovereign state and is implicit in every treaty. Every nation is free at all times and
regardless of treaty provisions to defend its territory from attack or invasion and it alone
is competent to decide whether circumstances require recourse to war in self-defense.”33
Scholars of different persuasions and attitudes toward international law have agreed that
Article 51 of the UN Charter must be read as recognizing, but not regulating, the right of
self-defense and that its meaning is to be derived from customary international law.34
This was also the approach of the International Court of Justice in the famous Nicaragua
case, which addressed the legality of American intervention in Nicaragua as a violation of
customary international law.35

Under customary international law, the right to use force in anticipation of an attack
that has not yet occurred has constituted an important aspect of the “inherent right” of
self-defense. Under international law every state has, in the words of then-Secretary of
State Elihu Root, “the right . . . to protect itself by preventing a condition of affairs in
which it will be too late to protect itself.”36 The classic formulation of the right of
anticipatory self-defense arose from the Caroline incident. In 1837, the steamer Caroline
had been supplying men and materials from the United States to armed insurgents against
British rule in Canada. A British force entered US territory, seized the Caroline, set the
ship on fire, and launched it down Niagara Falls, killing two US citizens in the process.
In response to British claims of self-defense, Secretary of State Daniel Webster
demanded that the British show that the:
necessity of self-defence [was] instant, overwhelming, leaving no choice of means,
and no moment for deliberation . . . even supposing the necessity of the moment

7
 authorized [British forces] to enter the territories of the United States at all, [they]
did nothing unreasonable or excessive; since the act, justified by the necessity of
self-defence, must be limited by that necessity, and kept clearly within it.37

Lord Ashburton, who had been sent by the British as a special minister to resolve the
dispute, implicitly accepted this test by justifying Britain’s actions in these terms.38
Secretary Webster argued that the burning of the ship was an unnecessary and
disproportionate response to the threat, but he agreed to accept Great Britain’s apology.39
Webster’s formulation was reaffirmed a century later by the International Military
Tribunal at Nuremberg when it ruled that the German invasion of Norway in 1940 was
not defensive because it was unnecessary to prevent an “imminent” Allied invasion.40
Most writers on international law consider the Caroline test the leading definition of the
use of force in anticipation of an attack.41 As Professor Christine Gray has observed, the
Caroline incident “has attained a mythical authority,” not just for its definition of
imminence, but also its requirement that the use of force be necessary and proportional to
a coming attack.42

Combining the UN Charter rules with the doctrine of anticipatory self-defense

produces the following international legal regime governing the use of force. In general,
all use of force against the political independence and territorial integrity of a nation is
prohibited. Only the United Nations Security Council may authorize the use of force
against a nation, and it can do so only if that nation poses a threat to international peace
and security. In the absence of explicit authorization, a nation may use force only in its
self-defense. Read most broadly, self-defense includes the right to use force in
anticipation of an attack, so long as that attack is imminent and the nature of the response
is proportional and necessary to defeat the attack.

C.
While relatively clear and simple, these rules on the use of force have never
effectively restrained the use of force between nations. If one were to look at the
experience of the United States alone, for example, during the Cold War it used force in
places like Korea, Cuba, the Dominican Republic, Vietnam, Grenada, Panama, Libya, the
Sudan, Lebanon, the Persian Gulf, and now Yugoslavia, Afghanistan, and Iraq. Only
Korea was authorized by the United Nations Security Council, and certainly many if not
most of these uses of force would not have amounted to self-defense under the Caroline
test. To be sure, since the end of the Cold War, the Security Council has authorized the
use of force against Iraq’s invasion of Kuwait, and to stop humanitarian crises in Haiti,
Somalia, Bosnia, and East Timor. Nonetheless, aside from the 1991 war in Iraq, the
United Nations has not played a significant role in preventing or ending interstate
conflicts, and its authorizations have been noticeably absent from the wars in Kosovo,
Afghanistan, and Iraq.

Several challenges to the international system developed in the postwar period that
may explain the UN Charter’s lack of success. First, the UN Charter procedures for
authorizing the use of force collapsed almost immediately upon their birth. Due to their
permanent seats on the Security Council, the Soviet Union and the United States could

8
threaten to veto any effort to authorize force that ran counter to their interests. Even when
the superpowers did not hold vital interests, the Security Council was unable to authorize
action where the three smaller “great” powers, Britain, France, and China, were involved.
While some international legal scholars praised the 1991 authorization of the Persian
Gulf War and subsequent Security Council-blessed uses of force as ushering in a new era
of relevance for the United Nations, those instances may very well have been the
anomaly, rather than the future practice. We appear to be returning to an era of Security
Council paralysis, as demonstrated by the threatened vetoes of authorizations for the
Kosovo intervention by Russia and the Iraq war by France and Russia. In the absence of
any meaningful role for the Security Council in controlling international violence,
national self-defense has become the only legal means for states to justify the use of
force. Not surprisingly, most nations customarily claim a right to self-defense whenever
they use force.

A second development has undercut the notion that a nation must rely on the United
Nations to protect it from attack, or that it must wait for an armed attack to occur before
responding with force in its self-defense. Anticipatory self-defense may have been more
limited, and its use closer in time to the launching of an actual attack may have been
more effective, at a time like the nineteenth century, when the harm that a surprise attack
could achieve was limited. Modern warfare, however, has changed that calculus.
Innovations in technology, including weapons of mass destruction, air power, and
missiles allow for attacks that are more devastating and occur with less warning. As
Michael Walzer has pointed out, modern weaponry allows an opponent to acquire an
overwhelming and even decisive advantage if allowed to strike first.43 He argues that it
would be unreasonable and unrealistic to require a nation to await a potentially
catastrophic assault before beginning to take actions necessary to its defense. Nations
threatened by attack with modern weapons may not have the luxury of time to appeal to
the United Nations and instead may be forced to use force preemptively to prevent
another side from gaining a decisive military advantage.

A third challenge to the basic use-of-force rules has come from those in favor of
humanitarian intervention, which can be defined as the use of force in the internal affairs
of a country to prevent massive deprivation of human rights. The UN Charter generally
forbids the UN from “interven[tion] in matters which are essentially within the domestic
jurisdiction of any state.”44 It is also difficult to read Article 2(4) and Article 51 as
anything but a prohibition on the use of force by states for any reason other than self-
defense.45 Although arguably in tension with these provisions, the Security Council
occasionally has authorized various interventions, ranging from economic sanctions on
the apartheid regime in South Africa to armed attacks in Bosnia, to respond to
humanitarian crises on the basis that humanitarian crises can themselves present threats to
international peace and security. Henkin and others have accepted this approach by
essentially allowing any use of force, for whatever reason, if the Security Council has
approved. “[T]he law is, and ought to be, that unilateral intervention by military force by
a state or group of states is unlawful unless authorized by the Security Council.”46

9
 Nonetheless, nations also have intervened in the affairs of other countries for
humanitarian reasons without Security Council approval. NATO’s attacks on Serbia to
stop ethnic cleansing in Kosovo are only the most recent, notable example, of
intervention on humanitarian grounds. Other occasions include India’s 1971 intervention
in Bangladesh; Tanzania’s 1978 ouster of Idi Amin in Uganda; France’s 1979
intervention in the Central African Empire; American, British, and French use of force in
Northern Iraq to protect the Kurds in 1991; intervention by African states in Liberia and
Sierra Leone in the 1990s. No doubt some of these interventions also involved strategic
or security concerns, but some of them well might not have occurred but for the presence
of independent humanitarian goals. The practice of humanitarian intervention is
problematic, as such uses of force are neither taken in self-defense nor receive Security
Council authorization.

International legal scholars have struggled mightily to reconcile humanitarian

intervention with the plain text of the UN Charter. Some acknowledge that armed
intervention into the internal affairs of a state is illegal, but hope for retroactive “pardon”
for the action from the Security Council.47 Some argue that humanitarian intervention is
consistent with the overall purposes of the UN Charter, which they claim protects
universal human rights, or that the use of force in such circumstances does not seek to
infringe the political independence of the oppressing nation, because its intent is to stop a
humanitarian disaster, not conquest or a change in borders.48 Prominent American
academics have sought to identify a new norm of international law that permits a right to
pro-democratic interventions.49 Nonetheless, states generally have refused to adopt
humanitarian intervention as a legal justification for the use of force, as reflected most
notably in the United States’ refusal to cite it to defend the legality of its interventions in
Kosovo, Afghanistan, or Iraq. Some human rights disasters, most notably Rwanda, have
gone unstopped when a relatively minor intervention by the great powers might have
prevented them.

II.
Changes in the international system since 1945 suggest that modifications to the
current regime governing the use of force are in order. The legal system should respond
to the decline of warfare between the great powers and the rise of new types of challenges
for the international system. This Part develops an approach that more directly addresses
the threats of rogue nations, weapons of mass destruction, and international terrorism of
the kind witnessed in the September 11 attacks. This approach seeks to work within the
basic conceptual framework of imminence as articulated by Webster and as approved by
nations and scholars since. Part II.A explains that the UN Charter’s rules address the
wrong type of international armed conflict, and that warfare in the postwar world has
become more sporadic, less defined, and less formal than the great power wars of the first
half of the twentieth century. Part II.B develops an approach to the use of force, internal
to the traditional focus on imminence, which incorporates into the equation the
probability of attack, the magnitude of harm, and the reduced cost to civilians. Part II.C
argues that state practice supports this change in the rules of self-defense, and Part II.D
applies it to current cases on the use of force.

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A.
An important reason to alter the current approach to self-defense is that it is over-
inclusive. Drafted at the end of the most destructive war between nation-states in
recorded history, the UN Charter’s rules on the use of force seek to prevent aggressive
war by one nation against another, as Germany had invaded Poland and then France and
Russia, in the interests of territorial conquest. Those who have studied the legislative
history of the drafting of the Charter have found that as a result the “framers” of the
treaty sought to eliminate virtually all uses of force between states.50 War between
nation-states, however, has not been the problem threatening the stability of the
international system since the end of World War II. Rather, deaths and destruction in
international affairs have been caused by civil wars, humanitarian disasters, rogue states,
and the recent emergence of international terrorism. This mismatch between the current
threats to international peace and security and international legal rules underscores the
need to reformulate the regime governing the use of force.

International legal scholars generally have long felt pessimism about the ability of the
use of force rules to prevent international armed conflict. Professor Franck, for example
penned a well-known essay entitled Who Killed Article 2(4)?, arguing that many
nations—including the United States, the Soviet Union, Great Britain, France, and
India—had illegally used force in their international relations, and thus had shown that
the UN Charter-based system had failed.51 He wrote that speculative essay in 1970.
Inspired by the 1991 Persian Gulf War and the UN authorized interventions that
followed, however, Franck changed his tune and had even written a book seeking to
justify the NATO intervention in Kosovo as legitimate under, if not wholly consistent
with, international law.52 As we have seen, however, the Iraq war has caused him to
return to his earlier despair.53 Professor Richard Falk has strongly argued that
interventions in Kosovo and Iraq have represented a circumvention of the UN Charter
rules.54 Professor Michael Glennon seized on the Kosovo war to argue that the
prohibition on the use of force in international relations, without the Security Council’s
approval, had utterly collapsed—if, indeed, it had ever worked at all. According to
Glennon, the Kosovo war signaled the “death” of the Charter and the “grand attempt to
subject the use of force to the rule of law.”55 While Professor Henkin believes the United
States has regularly used force in violation of the UN Charter, he has at least drawn
comfort from the practice of the United States to claim publicly that it has acted
consistent with the Charter. He once said that at least “the United States did not preach
what it may have practiced; it did not seek to reinterpret the law of the Charter so as to
weaken its restraints.”56 It is fair to say that virtually all international legal scholars think
that the Kosovo, Afghanistan, or Iraq wars have left the UN Charter system in tatters,
while governments have devoted their efforts to developing creative, strained readings of
the Charter to find legal support for their actions.

Such discussions mistake the positive developments in the international system by

focusing narrowly on the wrong question. As is natural for international legal scholars,
they have focused on whether current state practice has complied with the UN Charter,
which they consider to be a constitutive document for the world legal order on a par with
the US Constitution in the domestic order. Such a perspective, naturally, will view most

11
uses of force by one sovereign nation against another as violations of international law.
But if they were to examine the function of the rules on force against the perspective of
the more immediate purpose of the UN Charter, that of reducing the death and
destruction from massive international armed conflict, they would be more optimistic.

On first glance, there seem to have been more classical international armed conflicts
during the post-World War II period than in previous historical periods. During the 1945-
1995 period there have been 38 interstate wars (that figure would be 41 now, after the
addition of Kosovo, Afghanistan, and Iraq), while the comparable figures are 36 from
1715-1814, 29 from 1815-1914, and 25 from 1918-1941. But this judges the success of
the UN Charter system in relation to its purpose of eliminating all uses of force, except in
self-defense. This may well be an unfair comparison, because it would be akin to saying
that the domestic self-defense rules have failed because 5.3 million violent crimes
occurred in the United States last year.57 If a different comparison is used, which controls
for the number of nation-states in the world, the post-1945 period appears to represent a
significant improvement. From 1715-1814, the number of interstate wars per state per
year is .019; from 1815-1914, it is .014; from 1918 to 1941, it is .036; from 1945 to 1995,
it is .005—a statistically significant difference.58

The overall number of deaths, both civilian and military, for all conflicts between
1945-2000, is estimated to be roughly 40 million people.59 (Note that this does not take
into account casualties from the Afghanistan and Iraq conflicts.) In comparison, the
number of deaths in World War I was between 13 and 15 million, and in World War II
between 50 and 60 million people.60 As students of armed conflict have observed,
however, most of these casualties occurred in internal conflicts, such as civil wars.
During the 1946-1999 period, the Correlates of War project, which maintains a database
of all armed conflicts, finds 261 armed conflicts, of which 180 were purely intrastate and
81 interstate in various ways.61 Another study finds that internal armed conflict within a
state composes 77 percent of the conflicts between 1945 and 1995.62 It appears that
during this period, roughly 80 percent of overall casualties from war resulted from
intrastate wars, and that 90 percent of those casualties were civilian.63

Armed conflict also appears to have become localized during the post war period.
Since 1945, there have been no international armed conflicts in Western Europe or North
America, and only one conflict—the Falklands war between Argentina and Great
Britain—in South America.64 Africa has experienced the highest incident of wars of all
kinds, both interstate and purely intrastate. Most importantly, perhaps, since 1945 there
have been no “great power” wars, if one is to consider the great powers to include the
permanent members of the Security Council, plus Japan, India, and Germany. This is not
to say that the great powers, which have been viewed by the international relations
literature as both the sources of war and the authors of international stability,65 have not
themselves been at war—the major conflicts in Kosovo, Afghanistan, and Iraq alone belie
that—but only that they have not been at war with each other.

One additional change in the nature of warfare during the post-World War II is
worthy of note. In addition to the disappearance of significant multistate wars,

12
characterized by total warfare between alliances of nations, the object of war has
changed. War in pursuit of territorial gain has diminished sharply since the end of World
War II.66 There may be many reasons that explain the decline in territorial conflicts, such
as the more intangible nature of a nation’s resources, the growth in international trade,
and the higher cost of occupying a resisting population. Nonetheless, a reduction in
large-scale conflict for territorial gain – which characterized both World Wars I and II –
is a core object of the UN Charter system.

A supporter of the UN Charter system might take solace from these numbers, in that
they might be read to suggest that the prohibition on the use of force between nations has
succeeded in producing the decline in interstate wars during the postwar period.
International legal scholars, however, have not demonstrated that the use-of-force rules
have had anything to do with this reduction. Only a case-by-case analysis of the manner
in which international legal rules had affected governmental decisionmaking could
determine whether such rules have had such an effect, and the few that exist to date do
not indicate that the international legal rules on self-defense, for example, have
constrained the United States.67 In fact, as noted, many if not most scholars believe that
the rules on the use force have been widely flouted. Instead, leading political scientists
and diplomatic historians attribute the reduced number of interstate wars and the stability
of the international system generally during the Cold War period to the bipolar balance of
power between the United States and the Soviet Union. Professor John Lewis Gaddis, for
example, argues that the 1945-1991 period should not be thought of as a cold war but as a
“long peace,” in which nuclear deterrence and American and Soviet studiousness in
avoiding direct conflict led to a period of general peace.68 Kenneth Waltz, the founder of
neorealism in international relations theory, argues that in an international system
characterized by anarchy and self-interested states, a bipolar distribution of power
between two superpowers will lead to greater international stability and relative peace.69 I
am not aware of any scholars who believe that the UN Charter rules on the use of force
are themselves responsible for the reduction in interstate wars between the great powers.

A second reason to modify the use-of-force rules is that they do not address the
recent changes in technology and political organization that pose threats to nations. The
easier availability of weapons technology, the emergence of rogue states, and the rise of
international terrorism have presented more immediate threats to national security than
that presented by attack by other nation-states. As articulated by the Bush
administration’s national security strategy, these different developments mean that an
attack can occur without warning, because its preparation has been covert and it can be
launched by terrorists hiding within the civilian population. This renders the imminence
standard virtually meaningless, because there is no ready means to detect whether a
terrorist attack is about to occur. Terrorist groups, which have no territory or population
to defend, may not be deterrable and may not be swayed by non-violent pressure to cease
hostile activities. Rogue nations pose similar problems. States that have withdrawn from
the international system, have few ties to the international economy, and which repress
their civilian populations to maintain dictatorships may also prove substantially
undeterrable through methods short of force. Both terrorists and rogue nations, moreover,
do not demonstrate much desire to follow international legal rules—indeed, by attacking

13
civilians, terrorist organizations violate the core principle of the laws of war—and hence
there is little reciprocal value for nations to obey the restraints on the use of force.
Nations would only be placing themselves at a permanent disadvantage in following the
limitations on the use of force against an enemy that itself refused to be bound by them.

At the same time, the possible magnitude of destruction that terrorists or rogue states
can inflict upon the United States has increased. While terrorism and rogue states have
existed in the past, the ability of terrorists to launch surprise attacks, or the hostile
intentions of isolated, paranoid regimes, might not have posed such a threat to national
security when they could mount only limited conventional attacks. This allowed nations
to address these problems through a variety of means short of armed attack. The
possibility, however, that terrorist groups might acquire weapons of mass destruction,
either on their own or from rogue states, places renewed pressure on the limitations
imposed on the use of force by the UN Charter system. Terrorists attack without warning,
and the possibility that they might acquire weapons of mass destruction increases the
harm that might occur from a sudden attack. This only decreases the time to respond and
reduces the effectiveness of non-violent measures, and encourages states to try to
intervene well before weapons of mass destruction are acquired. Developed in the age of
sailing ships and the Concert of Europe, the UN Charter and Caroline approach do not
seem likely to control non-state actors or states that disavow participation in the
international system, and hence also may not prove an obstacle to nations that feel
threatened by them.

B.
In responding to these threats, nations are limited under formal international law to
the right to self-defense. Attacks by terrorists or rogue nations may not leave time for
resort to the United Nations, and other great powers may have reason to veto resolutions
to address the dangers posed by rogue nations. Yet, the current approach to self-defense
under international law leaves nations ill-equipped to handle these new types of threats.
Waiting until an attack is in progress, or an attack is temporally imminent, may allow the
risk of a successful attack to become far too high, a risk that is compounded by the
potentially destructive effect of weapons of mass destruction. This part proposes that we
reconceptualize the imminence requirement of self-defense to take into account the
magnitude of the harm of a possible attack and the probability that it will occur, rather
than focusing myopically on temporal imminence.

International law does not supply a precise definition of when a threat is sufficiently
“imminent” to justify the use of force in self-defense. Even outside the use-of-force
context, although the term “imminent” is used in a variety of international agreements, it
is rarely defined. The dictionary definition of “imminent” focuses on the temporal,70 but
we can reconfigure the concept of imminence under international law to go beyond the
temporal proximity of the threat. Temporal imminence has the effect of setting the bar
too high on how probable an attack may be. Thus, under the Caroline test, a blow is
imminent when it is just about to land—the probability of the attack is virtually 100
percent. It ignores the magnitude of destruction of the attack, so that the minor, and
temporary border incursion that gave rise to the Webster-Ashburton correspondence

14
receives the same treatment as a possible nuclear attack. In either case, under doctrine
and conventional academic wisdom, a nation would be restricted from using force in self-
defense in both circumstances until just before the attack would occur. Imminence also
does not take into account windows of opportunity and the reduced harm that could be
caused by more limited attacks. Imminence doctrine would prevent a nation from using
force against an enemy, such as a terrorist operative, who comes into clear view at a time
when his attack is not temporally imminent, but who could then disappear or disguise his
future attack within a civilian population. Using force at an earlier time might reduce
civilian casualties and the costs of the attack.

It seems unrealistic to limit the cases that satisfy the imminence requirement to those
circumstances in which an attack is about to occur. One example that should allow the
right to use force, but is not temporally imminent, may arise when an attack is certain or
almost certain to occur even if it is still some time off. Even the International Court of
Justice (ICJ), for example, has attempted to expand the understanding of imminence, in
the context of determining whether sufficient necessity exists to relieve a state of its
international obligations. Some international law authorities would permit a state to
invoke necessity as a ground for failing to comply with an international obligation if “the
act was the only means of safeguarding an essential interest of the State against a grave
and imminent peril.”71

In 1997 the ICJ addressed whether Hungary was justified in suspending work on a
dam, which Hungary was required to construct by treaty with Slovakia, because of
Hungary’s fears regarding the environmental consequences of such work on the
Danube.72 The court considered whether Hungary’s suspension of work was justified by a
“state of necessity.”73 The ICJ declared that:
“Imminence” is synonymous with “immediacy” or “proximity” and goes far beyond
the concept of “possibility.” As the International Law Commission [has] emphasized
. . ., the “extremely grave and imminent” peril must “have been a threat to the
interest at the actual time.” That does not exclude, in the view of the Court, that a
“peril” appearing in the long term might be held to be “imminent” as soon as it is
established, at the relevant point in time, that the realization of that peril, however
far off it might be, is not thereby any less certain and inevitable.74

The court thereby acknowledged that evaluating imminence requires an analysis of

not just the timing, but also the probability of the threat. Although the ICJ also equated
the concept of imminence with immediacy, in international law, as in domestic law, legal
terms like “imminence” have different meanings in different contexts.

Focusing solely on temporal imminence requires states to apply exactly the same
policy to situations with widely different probabilities of harm. Under current
international law standards, neither situations in which a hostile nation appears 25 percent
likely to launch an attack nor situations in which it appears 85 percent likely to attack
satisfy the test for imminence sufficient to justify a preemptive attack. A more sensible
approach, it seems, would allow states greater flexibility to use force as the likelihood of
an attack increases, particularly in light of modern weapon technologies, such as missiles,

15
which may allow a potential adversary to move rapidly from a state of mere readiness for
hostilities to an attack. Probability also bears on responses to terrorist groups. A nation
may locate hostile terrorist operatives at a moment in time when their plans are not
sufficiently developed to qualify as temporally “imminent.” Nonetheless, it may be
impossible for the victim nation to be certain that it will be able to detect the terrorists
when they are about to attack, meaning that it will have a limited window of opportunity
to use force at all, and only to prevent a less probable attack.

While I will argue in Part III that international and individual rights of self-defense
need not parallel each other, a domestic analogy might serve as an additional illustration
of the pressure that is being placed on the concept of temporal imminence. Many states
require that, in order for force to be justified as self-defense, the threat of harm must be
“imminent.” That does not mean, however, that the victim must wait until the final
moment before a threatened harm materializes. If the harm cannot necessarily be avoided
by waiting for the last moment, force may be used as early as is required for the victim to
defend himself effectively. Some scholars use the example of a person who is chained to
a wall, and is told by his captor that he will be killed in a week. The use of force in self-
defense, even before that week ends and the attack is not temporally imminent, would
seem justified.75 A similar argument is made by those who favor a defense for battered
women. Battered women who have suffered severe and repeated physical abuse by their
spouses may have turned to the police with no effect, and the frequency and severity of
past attacks may lead them to predict that their abusive spouses will engage in future life-
threatening attacks.76 While debate over allowing battered women to claim self-defense
when they use force before an attack is temporally imminent has focused on whether the
reasonable person standard should be “objective” or “subjective,” another way to
understand the issue is that the battered woman’s defense seeks to redefine imminence.
Rather than temporal imminence, the battered woman’s defense seeks to use past
conduct—particularly escalating violence—to assess the probability that future harm is
likely to occur. While the appropriate scope of a battered woman’s defense is a complex
and difficult issue, at a minimum it shows that even domestic criminal law is considering
modifying the imminence requirement away from pure temporality.77

Another domestic analogy comes from free speech law, which allows regulation of
speech that poses a threat of imminent harm. In Justice Holmes’ terms, the government
may restrict speech that presents “a clear and present danger,” or threatens to incite
violence or harm such as by crying out “fire” in a crowded theater.78 As Judge Richard
Posner has argued, these cases analyze imminence according to a cost-benefit approach,79
much along the lines suggested here. “Holmes’s ‘clear and present danger’ test requires
that the probability be high (though not necessarily as high as in the fire case) and the
harm imminent; stated differently, the danger of harm must be great.”80 In other words,
“discount (multiply) the harm if it occurs by the probability of its occurrence. The greater
that probability, the greater is the expected harm and therefore the greater the justification
for preventing or punishing the speech that creates the danger.”81 To be sure, this
approach has not met with broad academic or judicial acceptance.82 This reluctance,
however, may be attributed in large part to a difficulty in evaluating the long-term
benefits of free expression and the costs of its restriction.83 Censors rarely are able to

16
estimate the value of speech, nor is it easy to determine whether, in the long run,
restrictions on speech will undermine political stability, market transactions, or scientific
research. This problem, however, may not exist with such acuteness concerning the use
of force in self-defense, nor does it undermine the argument in favor of expanding the
concept of imminence from one purely of temporal proximity to one of probability.

In addition to probability of attack, international law should take into account the
potential magnitude of harm. Over time, the advent of nuclear and other sophisticated
weapons has dramatically increased the degree of potential harm from an attack.
Weapons of mass destruction threaten devastating and indiscriminate long-term damage
to large segments of the civilian population and environment. As the ICJ recognized in a
1996 advisory opinion, nuclear weapons possess unique characteristics, “in particular
their destructive capacity, their capacity to cause untold human suffering, and their ability
to cause damage to generations to come.”84 In addition, the danger posed by the existence
of weapons of mass destruction is exacerbated by the possibility that the means of
delivery may be relatively unsophisticated—for example a “dirty bomb” driven into a
building by a suicide bomber, or the spread of a biological agent with an ordinary crop
duster. Development of advanced missile technology also has vastly improved the
capability for stealth, rendering the threat of the weapons they deliver more imminent
because there is less time to prevent their launch.

With these developments in offensive arms and their means of delivery, the calculus
of whether a threat is sufficiently imminent to render the use of force necessary should
evolve. As the magnitude of harm threatened by modern weapons has expanded and the
time necessary for their launch has decreased, the temporal restriction on self-defense
should diminish. The Caroline test of the Nineteenth Century, if applied literally to a
world of modern weapons, would be a suicide pact. As Professor Myres McDougal
argued in 1963, “the understanding is now widespread that a test formulated in the
previous century for a controversy between two friendly states is hardly relevant to
contemporary controversies, involving high expectations of violence, between nuclear-
armed protagonists.”85 As military lawyers have observed, Webster’s requirement of
immediacy is “too restrictive today, particularly given the nature and lethality of modern
weapons systems which may be employed with little, or no warning.”86 Modern
technology has pressed the boundaries of imminence because by the time a nation knows
that another country is about to launch an attack, the speed and destructive magnitude of
the attack may be too great to permit an effective counterattack.

Nor does the Caroline test take into account the modern realities of international
terrorism. International terrorist organizations do not deploy large military forces, whose
mobilization can be detected days if not weeks in advance by satellites. They do not seek
to achieve their military objectives by crossing national boundaries in force so as to seize
territory or coerce a foreign government. Rather, they seek to infiltrate covertly into a
country, camouflage themselves by blending into the peaceful domestic society, and then
launch their attacks—often on purely civilian targets—by stealth and surprise.
Imminence loses its meaning if there is no way for a nation to detect the onset or even the
preparations for an attack. The sign of a coming terrorist attack often will be only the

17
attack itself. The declining cost and growing availability of weapons of mass destruction
may only compound the difficulties presented by international terrorism. Groups such as
al Qaeda have the financial resources to acquire chemical, biological, or even radiological
weapons capable of killing thousands indiscriminately. Thus, imminence as a limiting
rule suffers not only because non-state enemies can launch attacks with greater speed and
surprise than nation-states, but because they also have at their disposal far more
destructive weapons than in the past.87

Whether a threat is sufficiently imminent to render the use of force in self-defense

necessary is not solely a question of time. Rather, imminence should take into account
several factors: (1) the probability of an attack; (2) the likelihood that the probability of
an attack will increase, given the practicality, or impracticality of diplomatic alternatives,
and therefore the need to take advantage of a window of opportunity; and (3) the
magnitude of the harm.88 This bears obvious similarities to the Learned Hand formula for
negligence in torts, whether the cost of preventing the accident outweighs the probability
of the accident multiplied by the magnitude of the potential injury.89 International law
should allow states to use force in their self-defense, rather than pursuing diplomatic
means or waiting for the UN to solve the problem, when the expected harm of a potential
attack reaches a certain level. Admittedly, the Hand formula does not inform us where
that line should be, but it does allow us to see that use of force should move away from
pure temporal imminence—which was just a proxy for a high level of probability—to
include probability and magnitude of harm.

Such an approach also accounts for the other significant element of the international
law of self-defense: proportionality. International legal scholars have failed to provide a
satisfactory account of proportionality in the decision to use force in self-defense (as
opposed to the work on proportionality in the use of force in tactical decisions). Under
this approach, proportionality in international law may be understood as similar to the
cost of preventing the harm that might arise from the attack. Proportionality asks whether
the costs of the preemptive use of force are outweighed by the probability of the attack
and its magnitude of harm. It may be the case, for example, that a nation can use less
force and harm fewer civilians by striking earlier at terrorist groups, such as before
terrorist groups can infiltrate a civilian population. If a nation can use force to prevent an
attack that is farther from fruition, it may well be able to use force more precisely or less
destructively.

Viewing the use of force in this manner raises several questions. For example, does
this approach justify attacking any country for any reason? Of course not, not every
nation in the world that has a military would be a justifiable target under this rule. Rather,
the probability of an attack would be a function of two factors: capability and intention.
Some nations may have the capability to launch a devastating attack on the United States,
but do not have any manifest intent. Thus, Great Britain and France have nuclear arsenals
and the means to deliver them, but their intentions toward the United States have been
friendly for almost a century. Does this approach to the use of force allow the United
States to attack any nation with a perceived hostile intent? Other nations might have the
hostile intent, such as, Iran, North Korea, or Iraq before the March 2003 invasion, but

18
may not have the ability to reach the United States and its forces with their militaries.
Taking into account the magnitude of potential harm restrains the use of force against
countries that, even if they could attack the United States, could not do so to much effect.
Cuba, for example, certainly bears strong hostility toward the United States, but does not
have military capacity to carry out a significant offensive attack against US territory. This
calculus explains why nineteenth century uses of force of the type in the Caroline case
would not justify a broad right of preemptive self-defense, as the harm from border
incursions in an age before mechanized warfare would not be that great.

A third question that arises is whether the expansion of the imminence doctrine to
include probability of attack and magnitude of harm is more likely to permit erroneous
uses of force. It might be the case that loosening the restrictions on the use of force will
produce preemptive attacks against nations that had no real intentions or abilities to
launch an attack. It might also be the case that the existing set of rules will yield errors in
the other direction, in failing to allow preemptive attacks that should have been
undertaken to prevent an aggressive assault. One way of thinking about this problem is to
conceive of the use of force regime as a choice between rules and standards, about which
a huge literature exists.90 A typical example of a rule is the speed limit, a prohibition on
driving more than 55 miles per hour. The speed limit could also be promulgated as a
standard: it is unlawful to drive unreasonably fast. Rules reduce decision costs because
they are clear and easy to apply, they create legal certainty because of greater
predictability, and they require less information to implement. Rules, however, do not
allow a careful application of law to all relevant facts, and so they are inevitably over-
inclusive or under-inclusive.91 Standards, which allow for consideration of more factors
and facts, increase decision costs, but reduce error costs. Consideration of a greater
variety of factors will reduce the under-inclusiveness or over-inclusiveness of the law,
but it will require more information to apply and lead to less predictability and more
uncertainty ex ante.

An additional difference between rules and standards is that they are better applied by
different decisionmakers at different times.92 Thus, rules may be superior to standards in
situations where mediocre decisionmakers do not have access to good information. A
rule, in essence, gives more authority to those who create the rule before the conduct
occurs by narrowing the discretion of future decisionmakers. A standard is usually
superior to a rule when the decisionmaker is of higher competence and has access to
superior information. Standards vest more authority in those who apply the law to a given
case, rather than those who wrote the law in the first place. Thus, choice of a rule should
occur when those who write the law have more information and competence than those
who apply it, and standards should be used when the law appliers have those advantages.
Rules and standards, in short, will outperform each other depending on the facets of the
particular legal problem.

Taking rules and standards into account, the conventional account of imminence in
self-defense is closer to a rule than a standard. It prohibits the use of force until an attack
is temporally imminent, and by setting the norm narrowly it reduces decision costs. A
national decisionmaker need only know whether an attack is about to happen, regardless

19
of the intentions behind the attack or the estimated magnitude of destruction. Temporal
imminence, however, increases error costs, if an error is defined as not permitting a
defending nation from using force so as to prevent an attack from occurring. Waiting
until the last moment may not give a defending nation sufficient time to identify and
launch a preemptive attack. To be sure, a defending nation will eventually use force when
an attack occurs, and in that sense perhaps the imminence rule will never be under-
inclusive. It would be a mistake to conceive of the rule in this way, however, because its
purpose is to allow the use of force before an attack occurs. Imminence, therefore, leads
to errors because it may allow aggressive attacks to hit home, when a preemptive use of
force might have prevented the attack in the first place. Finally, the imminence rule gives
more authority to those who developed the rule, because it reduces the discretion of the
decisionmaker in the here and now in favor of the decision at the time of the rule’s
development to limit the use of force only to temporally imminent attacks.

The modification proposed in this paper moves the law closer to a standard. It permits
more information to be brought to the decision through the analysis of probability and
magnitude of harm. This increases the decision costs, because—as we have seen with the
disputes over intelligence leading up to the Iraq war—it will require significant resources
to obtain reliable information to accurately judge the intentions and capabilities of
potential foreign opponents. Error costs, however, should be reduced by this approach,
because it will allow the preemptive use of force earlier, before an enemy attack becomes
unstoppable or more difficult to blunt, and it allows the consideration of more facts that
bear on the issue. Finally, taking into account the probability and magnitude of harm
transfers more decisionmaking authority to the nation using force, international
institutions, or the international community. If one believes that there are few real
institutional or legal checks on the actions of nations in international affairs, then the
decisionmaker at the time of application of the rule will be the nation that uses force. If
there is more real power in the hands of international institutions, such as the Security
Council, or other nations to sanction violators of the use of force standards, then they will
receive more decisionmaking authority when they apply law to the facts ex post.

Examining the choice between the conventional imminence rule and the
modifications offered here highlights some superiorities of a standards-based approach.
The error costs of the conventional rule can be extremely high—a successful attack by a
terrorist group or an enemy nation. In the past, the cost of the narrow rule throughout the
international system may not have been as great, because attacks were easier to detect
and conventional weaponry limited the harm that more covert attacks could inflict. To
launch a destructive conventional attack, nations used to require weeks to mobilize and
deploy their large, mechanized armed forces.93 Since the emergence of easily available
weapons of mass destruction and missile technology, and rogue nations and terrorist
groups, however, attacks may prove harder to detect and the harm that they can inflict has
been multiplied by orders of magnitude. As a result, the standards of probability and
magnitude should allow more attacks to be stopped earlier.

At the same time, decision costs under this standard-based system should increase,
but not in a way that is likely to outweigh the reduction in error costs. In order to make

20
reliable assessments of probability and magnitude of harm, before an attack occurs,
governments will require investments in gathering intelligence. In order to accurately
assess intentions and capabilities, a nation would need to have both technical intelligence
about the abilities and deployment of enemy forces, and also human or signals
intelligence about their intentions.94 Gathering such information would no doubt be more
costly than the simple border reconnaissance that would be necessary to detect a
temporally imminent attack. It is unlikely, however, that the costs of gathering such
intelligence and thwarting preventable attacks would outweigh the costs of a successful
attack in an age of terrorism and weapons of mass destruction..

One other type of cost should be noted. Because this approach relies on probabilities,
rather than temporal imminence, it is possible that a preemptive use of force could occur
when the opponent did not truly intend a hostile attack. If a defending nation waits longer
to launch a preemptive attack, it is likely to learn more about the intentions of the other
side, resulting in a higher level of certainty. On the other hand, acting at an earlier time
when the probability is lower, under the new imminence standard proposed here, would
require that the use of force be less destructive and more narrowly focused. This should
reduce the costs of mistaken uses of force, and ought to be balanced against the reduction
in error costs running the other way by the prevention of more attacks before they occur.
While the existing rule requires proportionality between the use of force and the threat,
this factor does not appear to have much bite.

C.
State practice indicates that the concept of imminence has quietly changed since the
development of nuclear weapons and sophisticated delivery systems. Such practice is
relevant because it is the primary, if not only, source of customary international law.95
Because the UN Charter permits the use of force in self-defense but leaves the term
undefined, customary international law, which represents how states themselves have
given meaning to the phrase in practice, may identify the limits of the use of force in the
international legal system. Some scholars even believe that a strong history of state
practice can give rise to customary international law that supercedes treaty provisions.
Apologists for the intervention in Kosovo, for example, have suggested that state practice
can amend the UN Charter procedures for authorizing the use of force for humanitarian
purposes.96 Finally, examining state practice is important because it shows that a more
flexible approach to imminence has greater explanatory power in describing how states
have applied the use-of-force rules in the past. This Part has selected well-known cases,
most of them involving the United States, because they have been the focus of analysis
by American international legal scholars in applying standard self-defense doctrine under
the UN Charter system.

Cuban Missile Crisis. During the Cuban Missile Crisis, the United States adopted a
more elastic concept of imminence and necessity than that articulated in the Caroline test.
The secret establishment of medium-range nuclear missile bases in Cuba by the Soviet
Union was no doubt a threat to American national security. Those missiles placed much
of the United States, for the first time, within range of Soviet nuclear missiles. In
response, the Kennedy administration imposed a blockade on the shipment of military

21
equipment to Cuba,97 a use of force that would usually constitute an act of war.98 The
presence of nuclear weapons in the Cuban Missile Crisis shows how the magnitude of
potential destruction changes the conception of the right to self-defense. The sudden and
secret preparation of the missile bases undoubtedly, in the words of President Kennedy,
“add[ed] to an already clear and present danger.”99 Nonetheless, their positioning in Cuba
constituted a less immediate temporal threat of armed attack on the United States than
that contemplated by previous applications of the Caroline test. There was no indication,
for example, that the Soviet Union was planning to use them either immediately, or even
in the near term. The United States did not claim, further, that the missiles had been
completed or that nuclear warheads had yet been married to the missiles.100 Certainly
there was no showing that the missiles were operational and ready for possible launch.
Nonetheless, President Kennedy justified the blockade on a more elastic concept of
imminence, due to the possible threat of nuclear weapons:
We no longer live in a world where only the actual firing of weapons represents a
sufficient challenge to a nation’s security to constitute maximum peril. Nuclear
weapons are so destructive and ballistic missiles are so swift, that any substantially
increased possibility of their use . . . may well be regarded as a definite threat to
peace.101

President Kennedy was using the more flexible approach to imminence outlined
here. As the magnitude of the possible harm from an attack increased, the needed
probability of an attack to justify an exercise of the right to anticipatory self-defense was
reduced.102

There has been substantial disagreement over the legality of the United States’
actions during the Cuban Missile Crisis. At the time of the blockade, the United States
claimed that it had authority to use force because of the authorization of the Organization
for American States. Under the UN Charter, however, a regional security organization
does not have any greater authority to use force than its individual members. While the
United States made a dramatic presentation before the Security Council about the Soviet
deployment, the Security Council itself did not authorize the blockade. Within the US
government, the Justice Department concluded that the United States could respond
militarily as an exercise of anticipatory self-defense, but this rationale was not made
public at the time.103 Nonetheless, it is difficult to understand the use of force against
Cuba as anything else but self-defense, justified by the presence of nuclear weapons. The
use of force would not have been seen as self-defense if it had come in response to
conventionally-armed bombers or cruise missiles, for example. The Cuban Missile Crisis
demonstrates that as early as 1962, nations were modifying their understanding of self-
defense to include consideration of the possible magnitude of harm that could be caused
by a nuclear attack.

Israel’s 1981 Attack on Iraq. The analysis becomes more complicated when the threat
of attack comes not from deployable nuclear weapons, but from facilities potentially
engaged in the production of weapons of mass destruction. An example is Israel’s 1981
air strike on the Osirak nuclear reactor in Iraq. Israel attacked the reactor, claiming that
the strike was justified as anticipatory self-defense because the reactor was intended to

22
manufacture nuclear weapons. The reactor was not yet complete, but it was close to
operational. In addition, Iraq had not recently attacked Israel, but it had maintained its
opposition to the existence of the Israeli state. Israel emphasized the limited window of
opportunity in which to strike—once the reactor became operational, an attack would
have been impossible because it could have exposed the inhabitants of Baghdad to lethal
radioactive fallout.104 The potential harm that would be caused by an Iraqi nuclear attack
was high, but the probability that it would have occurred was more remote than in the
Cuban Missile Crisis.

In response, the United Nations Security Council condemned the Israeli attack. Two
weeks after the raid, the Security Council unanimously adopted a resolution “strongly
condemn[ing]” the Israeli strike as a “clear violation of the Charter of the United Nations
and the norms of international conduct.”105 Several members of the Security Council
quoted the Caroline test and argued that the attack did not meet the requirement of
necessity, noting in particular that Israel had spent several months planning for the
attack.106 Disagreeing, the Israeli Ambassador claimed that “[t]o assert the applicability
of the Caroline principles to a State confronted with the threat of nuclear destruction
would be an emasculation of that State’s inherent and natural right of self-defence.”107
Acknowledging that Israel may have had a right to self-defense, the Reagan
administration nonetheless approved the resolution because of Israel’s failure to consider
other options.108 The United States stated that its vote was “based solely on the
conviction that Israel failed to exhaust peaceful means for the resolution of this
dispute.”109

Applying our reconceived imminence test to the Israeli air strike highlights the
relevance of important factors that may be uncertain at the time of an attack. In hindsight,
we may believe that the Israeli air strikes made sense in light of Saddam Hussein’s
subsequent use of chemical weapons against Iran and his own civilian population, his
invasion of Kuwait, his launching of missiles against Israel during the Gulf War, and the
evidence discovered during the 1991–98 UN inspections regime indicating that Iraq had
come close to secretly constructing a nuclear weapon. If the Israelis had not destroyed the
Osirak reactor, Iraq might have developed a nuclear weapon before its 1990 invasion of
Kuwait, making the 1991 effort to expel it from Kuwait impossible. In 1981, however,
Iraq appeared to be in compliance with international treaties governing civilian nuclear
technology and had not made any efforts, yet, to invade its neighbors. Despite its hostility
toward Israel, there was no indication at the time that Iraq planned to attack Israel in the
near future. The probability that an attack would occur, given that development of a
nuclear weapons would still have required several years, depended critically upon the
hostile intentions of Saddam Hussein.

US Attack on Libya. An example of the application of a new imminence test to state-

sponsored terrorism may be found in the United States attack on Libya in 1986. The
strikes were prompted in part by the terrorist bombing of the La Belle discotheque in
Berlin on April 5, which was frequented by US military personnel. The blast killed two
people, including an American soldier, and injured over two hundred others, fifty of
whom were Americans. President Reagan cited evidence that Libya had planned and

23
executed the Berlin bombing, which was only the most recent in a long line of terrorist
attacks supported and directed by Libya against US installations, diplomats, and
citizens.110 Several of these attacks had been planned to occur in the weeks immediately
preceding the La Belle bombing. In addition, the United States claimed that it had clear
evidence that Libya was planning a “multitude” of future attacks.111

The United States explained that the strikes on Libya were undertaken in anticipatory
self-defense and were fully consistent with Article 51.112 President Reagan argued that
the primary objective of the strikes was to forestall future terrorist attacks. “This
necessary and appropriate action was a preemptive strike, directed against the Libyan
terrorist infrastructure and designed to deter acts of terrorism by Libya, such as the
Libyan-ordered bombing of a discotheque in West Berlin on April 5 [1986].”113 In
addition to the threat of future Libyan-sponsored terrorist attacks, the United States
pointed to the exhaustion of nonmilitary remedies as meeting the customary international
law standard of necessity.114 Moreover, President Reagan emphasized that the strikes
were proportional–the targets “were carefully chosen, both for their direct linkage to
Libyan support of terrorist activities and for the purpose of minimizing collateral damage
and injury to innocent civilians.”115 Although several countries criticized the US strikes
and supported a UN Security Council resolution condemning the attack as a violation of
the UN Charter, Australia, Denmark, France and Britain joined the United States in
vetoing the resolution.116

Retaliation against Libya for a previous act of terrorism against the United States
would not fall within the right to self-defense. Libya’s previous attacks, however, had
established the high probability of future attacks by demonstrating Libya’s overt hostility
and its capability to carry off assaults on Americans abroad. Intelligence about future
plans for attack is important in judging the legality of the United States’ attacks. Because
the magnitude of Libya’s attacks did not involve a direct attack on the United States or
the potential for large casualties, the probability that attacks would occur would have to
rise fairly high before the United States could use force legally. The United States did not
engage in broad based air strikes, but instead narrowly struck specific targets in Libya’s
command-and-control structure. Acting before an attack may have been temporally
imminent required that the use of force be lower in proportion to the reduced certainty of
an attack.

Panama Invasion. The United States claimed self-defense in response to an imminent

threat to US lives when it took military action in Panama in December 1989. Shortly
before the US military action, Panama’s National Assembly of Representatives had
declared that a state of war existed between Panama and the United States, and General
Noriega had delivered an inflammatory anti-American speech. A few days earlier,
Panamanian armed forces had killed an unarmed US Marine officer, beat an unarmed US
Naval officer, and physically abused and threatened the Navy officer’s wife. The
combination of “General Noriega’s reckless threats and attacks upon Americans in
Panama [had] created an imminent danger to the 35,000 American citizens in
Panama.”117 As President Bush explained: “The deployment of U.S. Forces is an exercise
of the right of self-defense recognized in Article 51 of the United Nations Charter and

24
was necessary to protect American lives in imminent danger.”118 According to the State
Department spokesperson, the “right of self-defense entitles the United States to take
necessary measures to defend U.S. military personnel, U.S. nationals, and U.S.
installations.”119 The United States noted that it had “exhausted every available
diplomatic means to resolve peacefully disputes with Mr. Noriega, who has rejected all
such efforts.”120 The United States assured the Security Council that the use of force
would be proportionate, and President Bush chose removing Noriega from power as the
only way to protect US citizens in Panama.121 In the midst of the fighting, the Security
Council considered a draft resolution that would have labeled the invasion as “a flagrant
violation of international law,” but Great Britain and France joined the United States in
vetoing the resolution.122

Panama again demonstrates how considerations of probability and magnitude of harm

can be taken into account in determining the legality of the use of force. Panama’s
actions, particularly its murder of an American serviceman, signaled a hostile intention
toward the large base of American troops and civilians in Panama. Noriega’s hostile
activities may have signaled the intention to launch further attacks. On the other hand, the
magnitude of any harm would not have been great, and Panama did not have the military
resources to carry out an effective assault on the United States armed forces located there.
It is difficult to conclude that Panama was a legitimate exercise of self-defense, even
under the reformulated approach to imminence developed here. Reasons rooted more in
the stability of the international system may explain the use of force in Panama, a
consideration we will discuss in more detail in Part III.

Post–Gulf War Iraq. The United States’ use of force against Iraq during the 1991–
2003 period also demonstrates that the concept of imminence has declined as a limitation
on the use of force. The United States justified the June 1993 strike on Iraqi intelligence
service headquarters, which was undertaken in response to “compelling evidence” that
Iraq had attempted to assassinate President George H.W. Bush two months earlier, as an
exercise of the inherent right of self-defense as recognized in Article 51 of the United
Nations Charter.123 President Clinton explained the necessity for US action:
The evidence of the Government of Iraq’s violence and terrorism demonstrates that
Iraq poses a continuing threat to United States nationals and shows utter disregard
for the will of the international community as expressed in Security Council
Resolutions and the United Nations Charter. Based on the Government of Iraq’s
pattern of disregard for international law, I concluded that there was no reasonable
prospect that new diplomatic initiatives or economic measures could influence the
current Government of Iraq to cease planning future attacks against the United
States.124

The objective of the strikes was to diminish Iraq’s capability to support violence
against the United States and others, and to deter Saddam Hussein from supporting such
outlaw behavior in the future.125 President Clinton described the strikes as “limited and
proportionate.” The reaction of the Security Council was largely favorable, and its
members rejected the plea of the Iraqi ambassador that the Council condemn the US
action as an act of aggression against Iraq.126

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 Sudan and Afghanistan. Attacks in response to attacks by the al Qaeda terrorist
network indicate how a reformulated test for imminence might apply to non-state terrorist
organizations. On August 7, 1998, terrorists bombed the US embassies in Kenya and
Tanzania, killing over 250 people, including twelve Americans. Two weeks later, based
on “convincing information from a variety of reliable sources” that the Osama bin Laden
organization was responsible for these bombings, the United States launched cruise
missile attacks against terrorist training camps and installations in Afghanistan used by
that organization and against a facility in Sudan being used to produce materials for
chemical weapons. President Clinton explained the international law justification for the
strikes:
The United States acted in exercise of our inherent right of self-defense consistent
with Article 51 of the United Nations Charter. These strikes were a necessary and
proportionate response to the imminent threat of further terrorist attacks against U.S.
personnel and facilities. These strikes were intended to prevent and deter additional
attacks by a clearly identified terrorist threat.127

Professor Ruth Wedgwood has argued with regard to these strikes that “[e]ven by the
demanding test of the Caroline . . . the danger of renewed assault [by bin Laden’s
network] justified immediate action.”128 In its report to the Security Council after the
strikes, the United States emphasized that the attacks were undertaken only after repeated
warnings to Afghanistan and Sudan that they must stop harboring and supporting terrorist
groups.129 The response of the international community to the attacks was mixed, but the
Security Council took no formal action.130

In sum, recent practice demonstrates that the United States has used force in
response to a threat of aggression that is less imminent in the temporal sense than
described by Secretary Webster over 150 years ago. Rapid advances in weapons
technology have changed the calculus, in large part because a state cannot defend itself if
it waits until such weapons are launched. The new threat of nuclear weapons apparently
is not, however, sufficient to erase completely any requirement of temporality. For
example, the international community did not consider the threat posed by an Iraqi
nuclear reactor before it had become operational to be sufficient to justify its destruction
by Israel in 1981. Nonetheless, the backdrop against which the threat to Israel was
evaluated has changed significantly in the past twenty years. Even at the time of the
Osirak attack, if Israel’s argument that it acted in the last window of opportunity were
true and its assessment of Hussein’s motives held up, the attack might have qualified as
lawful self-defense, even if the materialization of the threat—the development of a
nuclear bomb by Iraq—were as much as five years away.

The rise of international terrorism, characterized by unpredictable, sporadic, quick

strikes against civilians, similarly has expanded the elasticity of the imminence
requirement. Advances in transportation and communications, and the proliferation of
weapons technology, have allowed terrorists to wield destructive power that was once
only in the hands of nation-states. Terrorists are also difficult to locate and track. They
seek to escape detection by concealing themselves and their activities among an innocent
civilian population. If a state waits until a terrorist attack is on the verge of being

26
launched, it likely will be unable to protect the civilians who are being targeted,
especially in light of the mentality of suicide bombers, who are immune to traditional
methods of deterrence. As terrorists burrow more deeply into this population, defensive
options may become more limited. Due to these considerations, a state may need to act
when it has a window of opportunity to prevent a terrorist attack and simultaneously
minimize civilian casualties.131 Thus, the United States acted in self-defense to prevent
future terrorist strikes in 1986, 1993, and 1998, even though the attacks it sought to
prevent were in the planning rather than the implementation stage. As Secretary of State
Shultz explained in the context of the conflict with Libya in the mid-1980s:
A nation attacked by terrorists is permitted to use force to prevent or preempt future
attacks . . . . The law requires that such actions be necessary and proportionate. But
this nation has consistently affirmed the rights of states to use force in exercise of
their right of individual or collective self-defense. The UN Charter is not a suicide
pact.132

D.
The advantages of viewing self-defense in the manner proposed here may become
clearer when current and possibly future cases are considered. Considering the
probability and magnitude of harm provides a means of analysis that allows us to more
accurately judge when nations should use force in their self-defense. It will also become
apparent that such an approach provides a superior framework for using force against
terrorist organizations or hostile nations seeking to develop weapons of mass destruction.

It seems apparent that even under our modified approach to imminence, the war in
Kosovo could not have been justified as self-defense. Serbia posed no threat to the United
States; it had neither the capability to attack the United States or its forces, nor the
manifest hostility to do so. The probability of an attack on the United States was almost
non-existent, and the magnitude of an attack would have been small. Nonetheless, the
United States and its NATO allies attacked Serbia, without a UN Security Council
resolution, to halt its ethnic cleansing campaign in Kosovo, and have occupied the
breakaway province since. Any legal explanation for the Kosovo conflict must derive
from a system outside the self-defense rules, a topic we will take up in Part III.

Afghanistan, on the other hand, provides an example of the benefits of a modified

self-defense doctrine. The September 11 attacks on the World Trade Center and the
Pentagon dramatically demonstrated the magnitude of harm that could be caused by
Afghanistan’s harboring of the al Qaeda terrorist network. Before September 11, al
Qaeda had succeeded in bombing American embassies in Africa and damaging a US
warship in a foreign port, but had not been able to carry out such a devastating attack
within the continental United States. While no further attack may have been temporally
imminent in September 2001, the probability that al Qaeda would launch attacks in the
future remained high, given its past history and the public fatwa against the United States.
Current self-defense law would have required the United States to wait until another al
Qaeda attack, launched from Afghanistan, was just about to occur before invading
Afghanistan and forcing the terrorist organization from its bases.

27
 Iraq presents a case that is closer to the line between the justifiable use of force and
the obligation to resort to non-violent or diplomatic measures. As expressed in Security
Council Resolution 1441, enacted unanimously on November 8, 2002, the United States
and members of the UN Security Council believed that Iraq was continuing to develop, if
not stockpile, weapons of mass destruction and that it was concealing these efforts.133
Iraq also maintained links to international terrorist groups. It had continued a policy of
hostility toward the United States ever since the 1991 Gulf War, and was in material
breach of the cease-fire that had suspended those hostilities by continuing its weapon of
mass destruction programs. Resolution 1441, for example addressed “the threat Iraq’s
non-compliance with Council resolutions and proliferation of weapons of mass
destruction and long-range missiles poses to international peace and security,” and
warned that “serious consequences” would result if Iraq did not fulfill its disarmament
obligations.134 Under the modified self-defense analysis, Iraq’s continuing development
of a weapons of mass destruction program threatened a high magnitude of potential harm
to the United States. Iraq sits close to the line, however, because of difficulties in judging
the probability of an attack. Iraq certainly had sufficient hostile designs, but its ballistic
missiles had no ability to reach the United States. Any determination of probability would
have to rest on the prospect that Iraq was likely to transfer weapons of mass destruction
to terrorists or other nations hostile to the United States and willing to use such weapons.
Such information would be gathered by intelligence agencies and there is currently no
way—outside of those in government—to judge the amount and credibility of such
information due to its sensitivity.

The virtues of a more flexible standard in the use of force become clearer in the
context of terrorism. Groups such as the al Qaeda terrorist organization have a
demonstrated hostility toward the United States and have shown their ability to launch
devastating attacks on American targets both at home and abroad. Further, as shown by
the case of Jose Padilla, the group seeks to use weapons of mass destruction against
American domestic targets.135 Given the clear intention and the magnitude of potential
harm, the primary factor governing the use of force against al Qaeda terrorists will be
how close to completion their attacks are. If their efforts are less well developed, then
surgical, less destructive attacks would be permissible; if they are further along, more
force might be used. A defending state could use force to specifically target known
terrorist leaders who are planning attacks, even if the exact nature of those attacks are
unknown, so long as the strikes are limited. This could come close violating the
presidential ban on assassination, but as Abraham Sofaer and Hays Parks have explained,
assassination only prohibits murder and not killings undertaken in legitimate self-defense
from attack.136

Contrast this result to the one that would obtain under a traditional imminence
approach. States could not use force until just before a terrorist attack was about to land,
regardless of whether the attack was a conventional bombing of a bank or an effort to use
a radioactive dirty bomb. States could not take advantage of a window of opportunity, in
which they locate a terrorist operative who is engaged in terrorism but whose attack is not
temporally imminent. They might be forced to wait in the hopes that the terrorist will re-
appear closer to the time of attack, even though he might be surrounded by civilians. The

28
more flexible approach would allow states to target terrorists when (and wherever) they
appear, even if their attack might be days, weeks, or months off. Given that terrorists
operate by receding into the civilian population and launching an attack by surprise, an
earlier sighting may be the only window in which a state could use force preemptively.
Under this approach, unlike the current view, the potential terrorist use of weapons of
mass destructive would allow force to be used earlier and with greater destructiveness.

To summarize, it is possible to reconceptualize current doctrine governing the use of

force to take into account technological and political developments that have made
attacks swifter, harder to detect, and more deadly. The use of force in anticipatory self-
defense must be necessary and proportional to an imminent attack. As state practice
suggests, however, the emergence of weapons of mass destruction, swift modern
weapons, and international terrorism demand that a more nuanced test than Webster’s
nineteenth-century formulation for determining whether a threat is sufficiently
“imminent” to justify the use of force. The factors to be considered include: (1) the
probability of an attack; (2) the likelihood that this probability will increase, given the
practicality or impracticality of diplomatic alternatives, and therefore the need to take
advantage of a window of opportunity; and (3) the magnitude of the harm that could
result from the threat. If a state instead were obligated to wait until a threat was
temporally imminent, it could miss a limited window of opportunity to prevent the attack
and to avoid harm to civilians.

III.
Part II argued that the international legal system could adapt to the new threats of
modern technology and the rise of terrorism by substantially modifying the current
doctrine of self-defense. Exercise of self-defense by nations, however, may not result in
the optimal use of force in international affairs. This Part argues that the legal regime
governing the use of force in international affairs does not, and ought not, mimic the
criminal law. Once freed of the notion that nations are subject to the same self-defense
rules that apply to individuals, we can begin consider what rules ought to regulate the use
of force by nations and by the United States.

This Part then seeks to develop a framework for applying force in international
relations, one that focuses on the maintenance of international stability rather than rules
that derive from notions of individual right and criminal law-based norms of liability. It
argues that the rules governing individuals under the criminal law have no obvious
application to nation-states interacting in a system of anarchy. It becomes important then
to focus not just on self-defensive uses of force, but on how to align the incentives of the
great powers to address threats to the international system the costs of which may not be
fully internalized by most nations.

A.
Difficulty with applying the current doctrine of self-defense to international affairs
arises from its reliance upon a criminal law-based approach to liability. There are many
reasons to think that rules created to curb violence between individuals within the same
domestic community would not apply to relations between nations in an international

29
system characterized by anarchy. This Part examines several differences between the
international system and domestic societies that suggest that the analogy between the two
should be broken. Once we cease thinking about the international regime concerning the
use of force within the intellectual framework of the individual right to self-defense, we
can begin to consider an alternative approach.

There are obvious parallels between the doctrines of self-defense in criminal and
international law, as they are conventionally conceived. In criminal law, self-defense is a
defense against a charge of murder or assault that can provide a full acquittal. Many
scholars agree that self-defense serves as a justification, rather than an excuse, because
the use of force itself is not wrongful even though the elements of the offense of murder
might be satisfied.137 While there are differences across jurisdictions, the justification of
self-defense appears to have three common elements: imminence, necessity, and
proportionality.138 Imminence is temporal: force can be used only when it cannot wait
any longer, it does not occur after the fact, and it is based on the visible manifestation of
an attack that makes clear that the use of force is “neither too soon nor too late.”139
Although the Model Penal Code describes imminence slightly differently, as whether the
defender “believes that such force is immediately necessary for the purpose of protecting
himself,”140 Professor Fletcher argues that the Model Penal Code provision and
imminence express the same standard. If the attacker is sleeping or looking for a weapon,
the use of force is neither immediately necessary nor is an attack imminent.141

Necessity demands that the use of force be the only option left to prevent the attack.
If a victim can undertake a less harmful action that would achieve the same result as
deadly force, then deadly force is not necessary. Many believe that necessity imposes a
duty to retreat, if possible, to seek protection from the police from an attacker, or both. If
resort to police protection is feasible, then the use of force in self-defense is not necessary
because the government may bring force to bear to protect the potential victim.
Proportionality asks that the use of force in resistance not be excessive or
disproportionate to the harm threatened by the attack. It requires the balancing of the
interests of the defender against those of the aggressor.142

Self-defense in international law is conceptualized in virtually the same manner—in

terms of imminence, necessity, and proportionality. The analogy between self-defense in
criminal and international law has taken such hold that domestic criminal law scholars
sometimes illustrate the doctrine with examples from international law. Fletcher, for
example, explains imminence by distinguishing self-defense from a preemptive strike, in
which “the defender calculates that the enemy is planning an attack or surely is likely to
attack in the future, and therefore it is wiser to strike first than to wait until the actual
aggression.”143 Such preemptive strikes, Fletcher observes, are illegal under international
law because “they are not based on a visible manifestation of aggression; they are
grounded in a prediction of how the feared enemy is likely to behave in the future.”144
Scholars have traced the origins of self-defense doctrine in international law to the efforts
of international legal writers to apply the law of self-defense in criminal law to world
affairs.145 There are several reasons, however, to question whether the analogy between
criminal and international law makes sense.

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 First, it should be observed that analogizing states to people may be an example of
what Cass Sunstein calls a “moral heuristic.”146 It is probably a common, but mistaken,
heuristic to think of nations as individuals. Henry Kissinger’s quip that “nations do not
have friends, only interests” sought to puncture this easy way of thinking. Yet, the origins
of the heuristic may be understandable. At the time of the birth of the modern
international system with the Peace of Westphalia in 1648, and its establishment of the
nation-state as the basic actor in world affairs, modern international law was just
beginning. Grotius, the father of modern international law, clearly borrowed notions of
self-defense from criminal law concepts. In The Law of War and Peace, Grotius
discusses individual self-defense and national self-defense in the same chapter. He argues
that the right to kill an aggressor in self-defense “derives its origin from the principle of
self-preservation, which nature has given to every living creature, and not from the
injustice or misconduct of the aggressor.”147 He then observes that “[w]hat has already
been said of the right of defending our persons and property, though regarding chiefly
private war [between persons], may nevertheless be applied to public hostilities, allowing
for the difference of circumstances.”148 Vattel had the same view: “every nation, as well
as every man, has, therefore, a right to prevent other nations from obstructing her
preservation, her perfection, and happiness,—that is, to preserve herself from all
injuries.”149 This borrowing from the criminal law came at a time when the sovereign
government of nations was often a person, in the form of a king or queen. Nation-states
could be thought of as having rights in international affairs that are analogous to
individual rights, because national sovereigns were individuals. As Vattel wrote, “the
sovereign is he to whom the nation has entrusted the empire and the care of the
government: she has invested him with her rights.”150

As the basic governing structure of almost all nations has since abandoned monarchy,
this view of states no longer makes sense, if it ever did. Thinking of the rights of states as
naturally paralleling those of individuals should fall by the wayside as well. One might
argue that even if modern nation-states no longer have hereditary monarchs who possess
the state as personal property, nations still have a right of self-defense that represents the
collective aggregation of their citizens’ individual rights to self-defense. As David Luban
argues, “[w]ars are not fought by states, but by men and women.”151 Under this
conception, an independent right of the state to self-defense would not exist, only that of
individuals to defend themselves and others. The right of a soldier to use force is no
different than that of an individual to defend himself, and war is simply a contest between
hostile persons. The state and its armed forces merely represent the collective rights of
self-defense held by all of the individuals in a society.

This individual rights-based conception of the right to self-defense in international

law cannot explain contemporary understandings of armed conflict, especially its
distinction between jus in bello and jus ad bellum. Under the laws of war, for example,
those who fight on either side of a conflict, regardless of which nation started it, receive
combat immunity and may legally attack and kill members of the opposing military. If
national self-defense were based on the individual rights of soldiers, soldiers who fight on
behalf of a nation that illegally began a conflict would have no right to use force against
the soldiers of the defending nation. Just as an individual who seeks to murder a victim

31
has no legal right to use force, the aggressive use of force by soldiers in an invading army
would be identically illegal. Under the laws of war, however, once a conflict has begun—
and regardless of the reasons for its commencement—the soldiers on either side do not
commit a crime when they kill the enemy.152

This point receives further support when more particularized uses of force within war
are considered. Under the laws of war, for example, soldiers may target not just enemy
soldiers on the battlefield, but also supporting units, such as supply lines and
reinforcements, noncombatant members of the armed force, such as clerks and cooks, and
other members of the armed forces that are not currently fighting on the battlefield.
Soldiers may attack targets well behind the front lines, including bases, munitions
factories, and command-and-control facilities. A defending army may even pursue and
destroy a broken and retreating invading force, as occurred when the United States and its
allies attacked retreating elements of the Iraqi military in the 1991 Persian Gulf War.
These examples illustrate that soldiers may target members of the enemy military during
wartime even when they pose no immediate threat to their lives.153

An individual rights approach to self-defense also fails to take account of the

contemporary laws and practice of war as they relate to the purposes and objectives of
war. Under the criminal law, for example, necessity continues as a requirement for the
use of force throughout an encounter. Thus, if in responding to an attack a defender
disables the attacker, in such a way that he can no longer injure the defender, then his
right to use deadly force ends. That is not the case in international affairs. A defending
nation does not have an obligation to cease hostilities once it ejects an invader from its
territory, but rather can continue on to attack and occupy the territory of the invader.
Thus, in the Second World War, the United States, Great Britain, and the Soviet Union
not only repelled Axis invasions, but also demanded the unconditional surrender of
Germany and Japan, invaded their homelands, and occupied both nations for years. While
the possibility of renewed, future aggression cannot serve as a ground for the use of force
in criminal law, it can provide a valid reason for continued hostilities under international
law, as the case of World War II suggests.154 A related point involves the use of force in
self-defense in response to a crossing of a border or the seizure of territory that does not
involve the loss of life. Even if the border is a poorly drawn one, the United Nations
Charter recognizes that nations may use force to resist aggression that crosses a border or
that seizes territory, even if it is uninhabited.155 Such aggression would not seem to
trigger an individual right to self-defense, as no lives would be in danger, unless we were
to give a broad reading to the “castle” right to self-defense in one’s home to include an
entire nation’s territory.

A third, and most directly important, difference between the criminal law and
international law comes from the differences between the domestic and international
systems. Under domestic law, necessity requires withdrawal if possible without the use of
deadly force. If the police and the criminal justice system can provide subsequent
protection from an attacker, then the use of force is not necessary. The twentieth century
explanation for the duty to retreat, which traces its origins to Blackstone, is that “the
private use of force is tolerated only because the state fails in its task of providing

32
protection against aggression.”156 The ability to use force, therefore, depends upon the
effectiveness of government in preventing harmful attacks. According to Fletcher, under
this view:
[i]f the privilege of necessary defense is derivative of the state’s monopoly of force,
then the regulation of the defense invariably reflects the interests of both of the
aggressor and the defender. If the latter can save the life of the former by retreating
from the conflict, the greater social good requires him to withdraw.157

In the international system, by contrast, there is no central, supranational government

that effectively can protect nations from attack. While the United Nations has the legal
authority to intervene against threats to international peace and security, primarily
military aggression, the United Nations itself has no military forces with which to
implement this sweeping authority. At best, it can authorize member states to come to the
aid of a victim nation—a request for third-party assistance in self-defense—and it has a
poor track record of even doing that. Between the Korean and Persian Gulf Wars, the
United Nations Security Council issued no authorizations to use force, and since the 1991
conflict resolutions authorizing military intervention have still been rare. Self-defense
may require that nations seek non-violent means to solve disputes, such as diplomatic
pressure or even economic sanctions, but it is difficult to see how necessity could require
nations to defer to a central government for protection when supranational authority in
the security area remains so weak. While the criminal law seeks the “legal outlawry of
the arena of self-help in the settlement of potentially fatal personal conflicts,”158 self-help
is the prevailing rule in international affairs.

Fourth, and finally, there is a significant difference between the criminal justice and
international systems with regard to the desired level of violence. In the domestic sphere,
the rules of self-defense are so strict because society seeks to achieve a zero level of
homicide. The use of force is only legitimate when an attack is imminent, when it has
openly manifested itself, to ensure that use of force that results in a loss of life was not
pretextual. Such an approach limits the use of force almost entirely to those cases where,
even without the use of force in self-defense, death or serious bodily harm will occur
anyway. Strict self-defense rules, in other words, do not allow conduct that would add to
the overall use of force that would have occurred.

International legal scholars commonly make similar arguments with regard to the
doctrine of self-defense in international law. They argue that without strict standards to
govern the use of force in self-defense, states will use the doctrine as a pretext to resort to
force whenever they seek to advance their own self-interests. As Professor Franck argues,
“a general relaxation of Article 51’s prohibitions on unilateral war-making to permit
unilateral recourse to force whenever a state feels potentially threatened could lead to a[]
reductio ad absurdum.”159 International law, according to Franck, must require more than
serious threats before self-defense may be triggered. “The law cannot have intended to
leave every state free to resort to military force whenever it perceived itself grievously
endangered by actions of another, for that would negate any role for law.”160

33
 It is not obvious, however, that the desirable level of force, apart from examples of
self-defense, in the international system is in fact zero. States have used force to achieve
goals that have benefited the international system, whether it be ending the slave trade or
stopping the spread of fascism or communism, which arguably went beyond pure self-
defense. In the last two decades, for example, the arguments and cases in favor of
humanitarian intervention have increased. Unfortunately, the post World War II period
contains many examples of humanitarian disasters, including those caused by the
intentional repression of citizens by their own government, those caused by the collapse
of centralized government authority, and those that are the product of religious, ethnic, or
nationalistic fighting between different groups within a society. Although the Charter
forbids infringement on the territorial sovereignty and political independence of member
nations, the United Nations Security Council has responded to the problem of
humanitarian crises, in part, by authorizing limited interventions in places such as
Somalia, Haiti, Bosnia, and East Timor. A healthy academic debate continues over
whether the Security Council may authorize the use of force against governments that
repress their own people, but the practice seems to have become firmly established.

Humanitarian disasters may not be the only example where the optimal amount of
force in international affairs is more than zero. There may be certain types of regimes
whose spread, either through conquest or through coercive establishment of a political or
economic governing system, could be seen as harmful not just to the United States, but to
the stability of the international system or to the world’s peoples. Fascism might serve as
an obvious instance in which nations might wish to use force not just to stop
humanitarian abuses against ethnic minorities such as Jews, but also to remove an evil
regime possessed of expansionist goals and an ideology that threatens to destabilize the
international system. Or take, for example, the rivalry between the United States and the
Soviet Union during the Cold War. While international stability might have been served
by respecting the Soviet Union’s gains in Eastern Europe and China, it also may have
benefited global welfare to prevent the spread of totalitarian communism to new
countries. Thus, we may want the United States to assist South Korea against invasion by
North Korea, or to prevent the spread of Soviet influence immediately after World War II
in places like Italy, Greece, and Germany.161 A combination of the preceding two
characteristics—human rights abuses and dangerous ideological regimes—define what
the United States calls “rogue” nations such as North Korea and the former regime of
Saddam Hussein in Iraq.

A third instance where the use of force beyond self-defense may be desirable is
presented by cases in which centralized authority has collapsed, or where it has been
hijacked by violent non-state actors. States without an effective central government may
provide terrorist organizations or others a safe haven where they can recruit and instruct
fighters, organize their weapons and finances, or serve as trans-shipment points for illegal
money, weapons, or people. Somalia, for example, not only gave rise to warlords who
abused the human rights of the inhabitants, but also became a haven for terrorists who
then attacked other African nations. States such as Afghanistan allowed al Qaeda to
operate terrorist training camps and to organize attacks against various American and
other western targets, and generally served as a base where the organization could operate

34
freely. Without an effective central government, these states cannot respond to demands
from others that they apprehend terrorists or stop harmful activities by those operating
within their borders. The activities that occur within those borders may present a threat to
the international system, as they may constitute a central operating position from which a
terrorist network may project power into multiple nations, which may in turn destabilize
the governments and societies of those nations. The international system may benefit
from allowing the use of force in such circumstances not only because of the restoration
of order in a state with a weak or non-existent government, but because of the elimination
of a base that supports destabilizing terrorist attacks in several nations.

B.
If international law need not impose the same rules for use of force on states that the
criminal law imposes on individuals, then we should ask what goals the international
legal order should be seeking to advance. In the fields of international politics and
economics, scholarship has turned recently to the study of international public goods.162
When markets function, the uncoordinated actions of self-interested actors will result in
the optimal production of goods and services. Public goods, however, are goods that
benefit society but because of market failures are not produced at the optimal rate.163
Public goods have two salient characteristics: they are non-rivalrous, in that one actor’s
consumption of a public good does not leave less for other consumers, and they are non-
exclusive, in that it is not feasible to prevent people who have not paid from consuming
the good, so that the costs of excluding nonpaying beneficiaries are so high that private
firms will not supply the good.164 In the domestic arena, some examples of public goods
would include clean air and national defense, which benefit all members of a community,
regardless of whether they pay for it or not. In addition to providing public goods,
collective government action may also produce similar results by counter-acting other
types of market failures, such as negative externalities or undefined property rights.
Domestic examples would include restrictions on industrial air pollution and the
management of fisheries stocks. Students of international affairs have applied analysis of
collective action problems for the production of public goods to areas such as financial
stability, environmental pollution, health, biodiversity, and trade.165

Public goods and collective action problems are familiar concepts to domestic legal
scholars.166 International legal academics have also employed the tools of political
science and economics to understand international regimes that supply international
public goods or reduce market failures.167 Much of this work has focused on the
environment or public health. International legal scholars, however, have mostly ignored
the very example of a public good most often cited by theorists: national security.168

Transplanted to the international area, national security’s analogue would be

international stability or security.169 We can view international stability as a public good
because its provision benefits all nations in the international system, but at the same time
it is non-exclusive and non-rivalrous. If one nation or a group of nations maintains
international peace, then all nations–regardless of whether they have contributed to
stabilization efforts–will benefit. Stability reduces the need for defensive military
expenditures, reduces the costs incurred by mass refugee migrations, enables easier trade

35
and cross-border investment, and provides certainty for global markets. Enforcing peace
in different regions of the world will produce these benefits regardless of whether nations
in the region financially contribute or not. Indeed, one of the early theorists of public
goods and collective action problems, Mancur Olson, applied this approach to the
question of national alliances such as NATO and argued that defensive security alliances
could produce just such an international public good.170 Recently, political scientist
Joseph Nye also has recognized that international stability is a global public good and, as
a result, has argued in favor of using American power to maintain regional balances of
power.171 In fact, one would think that international stability would be the public good
that precedes all others in importance, for without relative global peace the international
system is unlikely to achieve much progress in solving collective action problems
involving the environment, monetary policy, or public health.

As a nonrivalrous and non-exclusive public good, international stability will be

under-produced by rational nation-states pursuing their own national interest. If anything,
therefore, the international legal system should promote conduct that encourages
stability-enhancing uses of force, rather than seeking to reach a zero level of violence, as
current rules do. To be sure, the benefits of stability will not accrue to all nations in the
same proportion,172 but then nations will have different capabilities in promoting stability
as well. Thus, for example, it is often observed that the British navy in the nineteenth
century used force to protect the freedom of the seas.173 That freedom certainly benefited
Great Britain, with its island geography, large navy and maritime fleet, and extensive but
dispersed global empire, more than most. Freedom of the seas, however, also benefited
other seafaring nations, most notably the United States, which was shielded from other
European powers during the nineteenth century while its economy developed and its
territory expanded. Given the benefits of stability on the high seas, which allowed
maritime transportation and commerce to flourish in the nineteenth century (and which
the British navy unilaterally used to end the slave trade), the international legal regime
should allow the use of force in such situations, even though the benefits and costs of
maintaining that stability are asymmetric.

No doubt these values are impossible to measure with any precision, in part because
of the number of variables and in part because of the difficulty in measuring them.
Nonetheless, there may be cases that are clearer than others, and I will attempt to show
below why the Kosovo, Afghanistan, and Iraq wars can be justified on these terms. In
each of these cases, it could be argued, the threat of attack on the United States—as
measured by the probability of a future attack times the magnitude of harm—might have
been low in comparison to the costs of the war. Yet, the use of force ended a harm to the
international system, either because intervention prevented a humanitarian disaster or it
brought an end to a situation that was destabilizing the international system by
threatening multiple nations. Rather than control the use of force with a criminal law
model that places a high bar on initiating armed conflict, these situations might be better
addressed through a cost-benefit analysis that takes into account the benefits of
maintaining international stability, and of preserving lives, balanced against the predicted
costs of a war to both the attacked nation and the attacker.

36
 An additional cost should also be considered. The use of force might itself have a
destabilizing effect to the international system. Such effects might arise simply from
excessive use of force by the great powers, which could cause uncertainty and opposition
from weaker nations worried about their own political independence and territorial
integrity. Such costs also might accrue from the wider impact of an intervention in a
nation that would fiercely and effectively resist an attack. Thus, human rights abuses and
cross-border tensions in India and Pakistan no doubt add to the instability in Central and
South Asia, but any military intervention by the great powers would create only more
loss of life and instability given the military strength of the contending states.
Intervention to prevent human rights abuses might save many lives, but it also might
breed instability by causing nations to fear whether the great powers will intrude into
their internal affairs, and cause them to build up their forces and engage in hostile
military conduct.

Another way of viewing this cost is to understand it as a principal-agent problem. In

domestic affairs, nations turn to institutions and the state to foster cooperation that
overcomes collective action problems. Nonetheless, public goods may still be
imperfectly provided due to self-interested actions by government officials, capture of
bureaucracies, or gridlock due to political competition between interest groups.174
Agents, in other words, may misuse the power delegated to them by their principals. At
the international level, similar problems may arise if nations (the principals) fear that the
United States (the agent) will use its power for rent-seeking, rather than to provide the
global public good of stability. Seeking to restore international stability and then
removing its forces, rather than maintaining a permanent imperialist presence, might
demonstrate that the United States or other great power remains faithful to the goals of
the system.

This concern may also affect the decision whether to adopt a rule or standard, as
discussed in Part II. The greater the distrust of the great powers, the more the legal
approach to the use of force should resemble a rule. Recall that a rule will place more
decisionmaking power in the hands of those who, ex ante, draft the rule. An anarchical
international system only compounds the problems of abuse of delegated powers because
those who use force will often also be the interpreter and applier of the norm. If there is
less concern over abuse by the powerful nations, or the problem to be cured through the
provision of the public good is serious enough, then a standard may be more appropriate,
because it shifts authority to the ex post decisionmaker, which can more effectively tailor
the use of force to the precise situation. In light of the decline in vast interstate wars for
territorial gain, and the rise in the costs to the international system from rogue nations,
intrastate conflicts, terrorism, and the proliferation of weapons of mass destruction, gains
in international stability through the use of force seem to outweigh potential principal-
agent costs. This calculus could change, however, if the identity and goals of the
stabilizing great power or powers were to change.

Approaching the use of force in this manner may provide a more convincing
explanation of why, despite the criticisms of the international legal academy, these recent
uses of force have not been condemned or rejected by the other nations in the system.

37
Kosovo, for example, is difficult to understand as self-defense, even under the more
flexible standard of imminence outlined in Part II. Although some nations protested, most
notably Russia and China,175 after the conflict ended the Russians participated in the
occupation of Kosovo and the Security Council enacted a resolution authorizing the entry
of NATO troops and the withdrawal of Serbian forces from Kosovo.176 While some
international lawyers have struggled to argue that the intervention was “legitimate” but
not “legal,” it seems that the major actors in the international system have acquiesced in
the intervention. While ex post authorization for the reconstruction of Kosovo is not the
same as ex ante approval to use force, the Security Council’s cooperation with NATO
after the war suggests that the other major players in the international system were
willing to accept this use of force.

The perspective developed in this part may explain why nations have not challenged
the legality of the conflict in Kosovo. Although the treatment of the ethnic Albanian
minority in Kosovo had been an internal matter of the former Yugoslavia, it threatened to
become regional in effect. In reaction to military operations by the Serbian military in
1998 and 1999, roughly 600,000 Kosovars had fled to neighboring states and an
additional 850,000—out of a total population of 2 million—had been displaced
internally. When NATO air strikes began in March 1999, Serbian troops immediately
implemented a plan to force the rest of the Kosovars out of the country. The outflow of
the population had a destabilizing effect on the nations around them, by forcing them to
bear the large economic costs of housing refugees and by potentially serving as havens
for rebels interested in attacking Serbia. While the immediate recipients of refugees were
the other former provinces of Yugoslavia, the flow continued into adjoining nations as
well, including Italy, Austria, Hungary, and Greece. The Balkans had been the tinderbox
for one European wide war, and NATO leaders were concerned that instability there
might draw into the conflict Russia, which had been Serbia’s defender in the United
Nations, and NATO. Intervening in Kosovo not only ended a humanitarian crisis, but it
restored stability in an important region of the world. While ending the Kosovo conflict
and terminating the wider fighting within the former Yugoslavia no doubt primarily
benefited the United States and its European allies, the end of war in that region also
benefited the international system as a whole by reducing the chance of a wider conflict.

Afghanistan provides another example of a system-stabilizing use of force. To be

sure, the United States had a self-defense interest in attacking the al Qaeda terrorist
organization that had based itself there. Although the September 11 attacks were not
strictly launched from Afghanistan, they were planned and financed from within the
country by al Qaeda. It is less clear, however, whether the proportional use of force
included removing the Taliban militia and replacing it with a friendly regime.
International legal scholars maintain that whether force can be used against a state that
harbors terrorists remains “controversial.”177 After September 11, the Security Council
condemned the terrorist attacks as “a threat to international peace and security” and
“recognize[ed] the inherent right of individual or collective self-defense in accordance
with the Charter,” but did not authorize the use of force against Afghanistan.178
Nonetheless, after the end of the Afghanistan conflict, in which several European and
Asian nations participated, the United Nations gave its ex post approval to the

38
arrangements for the reconstruction of Afghanistan—a sign, perhaps, that most nations
seemed to accept the outcome.

As with Kosovo, the intervention in Afghanistan may have benefited the United
States more so than other nations, but it also provided a public good of international
stability that benefited others. Afghanistan had become a lawless zone where terrorists
groups could operate without being pursued by national police or military forces. This
safe haven gave al Qaeda a secure location at which to gather and train its forces, base its
infrastructure and support structure, and from which to send out cells of terrorists to
launch attacks. In addition to hitting American targets, al Qaeda aimed to destabilize
different regimes in the Middle East and Asia, such as Saudi Arabia and Indonesia, and
operated a terrorist network that reached into Europe and Africa. As non-state actors,
terrorist groups are difficult to deter and perhaps impossible to negotiate with, and
therefore are freer in their use of force against their enemies. Further, in al Qaeda, we saw
the emergence of an international non-state terrorist organization that had the resources to
engage in a level of destruction that, in the past, could only have been produced by
nation-states. Preventing the use of Afghanistan as a free base of operations eliminated
the negative external costs imposed on the nations that al Qaeda threatened to attack.

Our last example is Iraq. Arguments continue over whether Iraq constituted a direct
threat of attack on the United States. Whether Iraq had weapons of mass destruction bears
directly on the question of whether the United States could use force in its self-defense.
Saddam Hussein certainly had the hostile intent to attack the United States and its forces,
and Bush Administration claims about Iraqi links to terrorism were arguments that
Hussein could effectively attack the United States by transferring weapons to groups
hostile to the United States. While this may have seemed highly unlikely before,
September 11 demonstrated that a hostile state could project power, of an unconventional
kind, to US shores without possessing the normal methods of missiles, fleets, or aircraft.
Nonetheless, self-defense as a justification proved extremely controversial, and as a result
the United States argued that it was primarily enforcing previous Security Council
resolutions designed to contain Saddam Hussein. Several nations, included three of the
five permanent members of the Security Council, opposed this justification and argued
that an invasion of Iraq would be illegal. While the dispute over the war’s legality
continues, with almost the entire international legal academy against it, after the conflict
the Security Council has enacted three resolutions recognizing the occupation of Iraq.179

Assuming that Iraq did not present a case of direct attack on the United States, the
international stability argument provides the grounds for a legal rule that might find the
invasion justified, depending on the facts. Iraq had been a continuing destabilizing factor
in the Middle East region. It had sought to construct a nuclear weapon, it had invaded
Iran in a bloody eight-year conflict, and it had invaded Kuwait in a war of conquest. It
had attacked Israel during the Gulf War in an effort to spark an Israeli-Arab conflict. It
had repressed its own population and had used chemical weapons against both its own
people and Iran. It had supported terrorist groups in the past. The United States and its
allies had spent billions annually since the end of the Gulf war to contain Iraq and prevent
it from restoring its weapons of mass destruction programs. Iraq had imposed significant

39
costs on the international system, and stability in the region was maintained only by the
continuing use of countervailing force. Whether Iraq posed an even greater danger to
international stability depends, in part, on whether its weapons of mass destruction
research and production was ongoing. Another factor that will determine whether the war
was justified is whether the conflict itself produces its own destabilizing effects, either by
undermining the steadiness of nearby regimes or ushering in the prospect of a continuing
conflict that produces more violence.180

Several questions will arise about this approach to the use of force. First, it is worth
asking whether a legal regime that allowed the use of force to prevent system
destabilizing conduct still will produce the optimal amount of force. Because there is no
effective central government with a monopoly on force in the international system, few if
any nations will fully internalize the costs and benefits of using force in situations that go
beyond self-defense. Nations have shown great reluctance to use force to stop purely
humanitarian disasters, as occurred with the hundreds of thousands killed in Rwanda,
even when the commitment of troops required is relatively low. Even when the United
States sent troops to Somalia in 1993 to solve a humanitarian crisis, the deaths of
eighteen soldiers in a firefight led it to remove its forces. In addition, it may not rest
within the capabilities of any individual nation to use force in all of the situations that
might be required. If only powerful nations can stop destabilizing international problems,
they soon might experience exhaustion of resources and political will. Unlike the 1991
Persian Gulf War, other nations may prove unwilling to contribute to the cost of military
action. The surprising thing, then, about the wars in Kosovo or Iraq is that they happened
at all, because it is not clear whether the United States itself captured sufficient benefits
in terms of international stability to justify the costs of intervention. If one believes that
the use of force in Kosovo and Iraq benefited global welfare, the grounds for pessimism
are that the international system has no mechanism in place for compensating nations to
engage in such conflicts. As with the British navy in the nineteenth century, we can
expect to see interventions only where the benefits from international stability will accrue
in a greater proportion to the United States or other great powers that undertake them, and
that these individually—captured benefits outweigh the costs of intervention.

The analysis on this point draws upon hegemonic stability theory. As developed by
some international economics and international relations scholars, the theory maintains
that international public goods will be provided by a single great power or small group of
powers – the hegemon – which can overcome the collective action problem presented by
large numbers of states in an anarchical international system.181 From a utility
maximizing standpoint, the benefits and control that accrue to the hegemon are justified
because the provision of the public good itself would not occur without the hegemon due
to free riding problems. A hegemonic power, however, will not provide the public goods
unless it is able to capture benefits that either approximate or exceed the costs of
maintaining the international regime that provides those goods. International relations
theorists have questioned whether the existence of a hegemon is a necessary pre-
condition for the maintenance of international rules and stability,182 or whether nations
can overcome collective action problems through institutions and regimes that do not
need a single power nation to enforce them. For purposes of this Article, it is not critical

40
whether an international regime supported by weaker powers can supply an international
public goods in place of a hegemon. Rather, all that is needed from the theory is the
conclusion that a hegemonic power could supply international peace and stability, if it
chooses to do so and under what conditions that is likely to happen. Given that non-
hegemonic powers and alliances have proven unable to directly address the problems
posed by Kosovo, Afghanistan, or Iraq, international legal rules may be better re-
conceived to encourage hegemonic powers to intervene to maintain international peace
and security, rather than to discourage them.

A second question that arises is about the place of purely humanitarian intervention.
While the wars in Kosovo, Afghanistan, and Iraq no doubt ended terrible oppression, it
does not appear that the United States and its allies engaged in any of these conflicts
solely for that reason. Somalia and Rwanda demonstrated that the great powers were
willing to risk little, if anything, to stop humanitarian abuses that also did not benefit
international stability or other strategic goals. Whether the international legal system
ultimately will accept humanitarian intervention, under the analysis suggested here, will
depend on several factors. One is whether gross human rights violations create a negative
externality that itself imposes harms on others.183 A second factor is whether intervention
to stop human rights abuses, if widely used, would prove destabilizing to the international
system because of the fears of nation-states that they would no longer control their
internal affairs. A third consideration would be the additional systemic benefits of ending
regimes that oppress their citizens. It may be the case that nations that systematically
abuse their own citizens also engage in other destabilizing activities that threaten the
international system, such as Iraq, Afghanistan, and the former Yugoslavia. It also might
be the case that nations where systematic human rights abuses occur because of a loss of
a central authority also will prove fertile ground for the operation of international terrorist
organizations. Somalia provides a good example of this last linkage. Nonetheless, there is
clear tension between a framework that allows the use of force to stabilize the
international system, founded as it is on nation-state sovereignty, and the needs of
humanitarian intervention. This paper does not seek to resolve that tension, but instead
makes the more modest claim that, putting humanitarian intervention to one side,
international law should still permit the use force to address threats that destabilize the
international order.

A third question that could arise concerns the nations that are on the receiving end of
the use of force. If the United States or other great powers use military coercion to end a
threat to international stability, a nation likely would resist on the basis of self-defense.
Serbia, for example, opposed NATO’s intervention in Kosovo, and Iraq of course
mounted a resistance to the United States’ invasion in 2003. If the international system
operated according to the current doctrine on use of force, both Serbia and Iraq would be
justified in using force in their self-defense. This would mean that both sides in the
conflict would be acting lawfully, which seems paradoxical. It is even possible that the
state producing the initial instability would have the superior claim. If we moved to a
legal order, however, that sought to stabilize the international system, states should not
have a right of self-defense to resist—especially to protect conduct such as illicitly
producing weapons of mass destruction, driving local populations into nearby nations, or

41
threatening neighboring countries, that undermine the international order. Allowing a
right to self-defense would only increase the costs of maintaining international stability.
Although if a nation is sufficiently powerful to successfully resist intervention, it would
be a sign that international stability would not be enhanced by the use of force.
Intervening to stop hostilities between India and Pakistan, for example, would likely not
be militarily successful, and the intervention itself might increase instability in the region
by expanding a conflict, increasing its destructiveness, or drawing in new powers.
Comparing the costs of military intervention and its secondary destabilizing effects,
however, is the better way to judge the legality of use of force, rather than analyzing
temporal imminence and competing, and conflicting, claims of self-defense.

CONCLUSION

Regardless of the international law rules of self-defense, nations well may continue
to act as they see fit. Because of the lack of any enforcement mechanism, international
law can place no restraint on the United States or other countries that make decisions
concerning the use of force. Constraints, if any, come only from the costs of undertaking
military action and the countervailing power of other nations. This has long been the
realist view of American foreign policy, as articulated famously by George Kennan and
Hans Morgenthau after the end of World War II.

Nonetheless, there are at least three reasons to think that the international rules
governing the use of force are more than just talk. First, the rules are embedded in the
United Nations Charter, and as a result are provisions of a treaty that has been approved
by the Senate and made by the President. They are federal law under the Supremacy
Clause, and as such may well fall within the President’s constitutional obligation to see
that the laws are faithfully executed. If that is the case, then presidential actions that
violate the UN Charter’s rules on self-defense amount to a violation of the law, a
suspension of the Charter, or are tantamount to a declaration that the Charter is a non-
binding political obligation. Based on this line of reasoning, scholars have argued in the
past that the use of force by the United States in places where no obvious self-defense
rationale existed violated both the UN Charter and the Constitution.184 The United States,
it seems, would want to avoid either outcome, and it is therefore important to develop a
doctrine for the use of force that can claim some consistency with international law and
the UN Charter.

A second constraint may arise from the decisions of private actors and the
international marketplace. Non-state organizations, such as corporations or international
institutions, that do business with the United States and whose participation in armed
conflicts may benefit the United States, could be less willing to cooperate if they are
uncertain about the legal authority of the use of force. Iraq may provide a case in point.
Private corporations are critical to the reconstruction of Iraq; they are rebuilding roads
and infrastructure, operating oil fields, selling needed products, and buying oil. Oil
companies may be reluctant to purchase Iraqi oil while uncertainty remains over the
legality of the war in Iraq and the subsequent occupation by the United States and the

42
United Kingdom. If the war were illegal under international law, then Iraqi oil exported
by the coalition provisional authority might be of dubious title. Similarly, companies may
be slow to participate in rebuilding Iraq, if their actions were too closely coordinated with
the wartime activities of the United States and its allies and could potentially subject
them to lawsuits. This is not to say that international law would be able to wholly
prevent oil sales or contracting work in Iraq, but it could cause the United States to have
to pay a premium, incurring an additional cost on the use of force.

This raises another, related point about compliance with international law, over
which there has been much debate in the international law literature.185 If a nation
violates what are seen as the international rules on the use of force, it might cause it a
reputational harm, independent of any more direct military, economic, or diplomatic
sanctions.186 Such reputational harm may decrease the ability of a nation to credibly
enter into international agreements in the future, as other nations may view a nation’s
willingness to violate international law as a signal of its untrustworthiness. Nations that
violate international law may not be as reliable treaty partners as nations that rarely
violate international law. Of course, the value of this reputation is difficult to measure,
and may well be outweighed by the potential harm of threats to a nation’s security or to
international peace and stability.

Third, the international legal system is beginning to develop its own enforcement
mechanisms. Although the Security Council has not shown itself to be much of an ex ante
restraint on the use of force by the great powers, a new international institution, the
International Criminal Court (ICC), has recently appeared to prosecute violations of the
laws of war. It can currently try individuals for violations of the jus in bello rules, such as
the Geneva Conventions, and in a few years it will add the jus ad bellum crime of
“aggression.” Some argue that the Statute of Rome will allow the ICC, which is not
subject to the veto of the five permanent members of the Security Council, to effectively
judge ex post whether an armed conflict has violated international law rules on the use of
force.187 As Madeline Morris has observed, “[i]n ICC cases in which a state’s national is
prosecuted for an official act that the state maintains was lawful or that the state
maintains did not occur, the lawfulness or the occurrence of that official state act . . .
would form the very subject matter of the dispute.”188 Because of these concerns, the
United States not only has withdrawn its signature from the Statute of Rome, but it has
launched an aggressive diplomatic campaign to immunize its officials and men and
women in the Armed Forces from the Statute’s reach. Nonetheless, some argue that the
ICC can exercise jurisdiction over the nationals of non-state-parties to the agreement who
come within the jurisdiction of a state party. This would allow the ICC to exercise
jurisdiction over American leaders who allegedly launch an illegal war, as well as
members of the armed services who commit alleged crimes during the conduct of the
war.

Even if one continued to believe that international law had little, if any, impact on
the outcome of the decisions of the great powers, it still would make sense to develop a
new doctrine concerning the use of force. In the wake of the wars in Kosovo,
Afghanistan, and Iraq, other nations may fear that the United States has embarked on a

43
campaign to increase its hegemonic power in the world. It seems clear that recent
American uses of force do not fall cleanly within the conventional rules governing the
use of force, dependent as they are on the approval of the UN Security Council. If the
United States has no viable intellectual framework with which to modify or replace the
old rules, nations may fear that it only intends to expend force purely for its own gain.
Developing a new approach to the use of force may help alleviate concerns about the
unrestricted exercise of power. An approach such as the one developed in this Article
could signal that the use of force still would be limited to self-defense, modified to take
into account developments in weapons and the rise of terrorism and rogue nations, or to
stabilize the existing international order.

∗
Professor of Law, University of California at Berkeley (Boalt Hall) School of Law;
Visiting Scholar, American Enterprise Institute. I thank David Caron, Mary Anne Case,
Robert Delahunty, Andrew Guzman, James Ho, Sandy Kadish, John Manning, Tracey
Meares, Eric Posner, Kal Raustiala, Lior Strahilevitz, Cass Sunstein, and Adrian
Vermeule for valuable discussions and comments. Participants in work-in-progress
workshops at the University of Chicago Law School and Stanford Law School helped
improve and sharpen the ideas in the paper.
1
Thomas M. Franck, What Happens Now? The United Nations After Iraq, 97 Am J
Intl L 607, 610 (2003).
2
Id. While this may be true or not, I think Franck goes too far in attributing the US
position to a desire to carry out revenge on the United Nations for its alleged hostility
toward Israel and the United States. According to Franck, “At the cutting edge of U.S.
policymaking today are persons who have never forgiven the United Nations for the
General Assembly’s 1975 resolution equating Zionism with racism and who, despite its
subsequent repeal, see the Organization as the implacable foe of Israel and the United
States.” Id.
3
Lori Fisler Damrosch and Bernard H. Oxman, Editors’ Introduction, Agora: Future
Implications of the Iraq Conflict, 97 Am J Intl L 553, 553 (2003).
4
See, for example, Thomas M. Franck, Recourse to Force: State Action against
Threats and Armed Attacks (Cambridge 2002); Christine Gray, International Law and the
Use of Force (Oxford 2000); Stanimir A. Alexandrov, Self-Defense against the Use of
Force in International Law (Kluwer 1996); Louis Henkin, The Use of Force: Law and US
Policy, in Louis Henkin, et al, Right v Might: International Law and the Use of Force 37
(Council on Foreign Relations 2d ed 1991); Ian Brownlie, International Law and the Use
of Force by States (Oxford 1963); D.W. Bowett, Self-Defence in International Law
(Manchester 1958).
5
This is exemplified by the American Journal of International Law’s practice of
soliciting comments from leading scholars almost every time the United States has
recently used force. See, for example, Agora: Future Implications of the Iraq Conflict, 97

44
Am J Intl L 553 (2003); Editorial Comments: NATO’s Kosovo Intervention, 93 Am J Intl
L 824 (1999); Agora: The Gulf Crisis in International and Foreign Relations Law, 85 Am
J Intl L 63 (1991); Agora: US Forces in Panama: Defenders, Aggressors or Human
Rights Activists?, 84 Am J Intl L 494 (1990).
6
See generally George Kennan, American Diplomacy (Chicago 1984) [SNC: recalled
1.13]; Hans J. Morgenthau, Politics among Nations: The Struggle for Power and Peace
(Knopf 1948); Edward Hallett Carr, The Twenty Years’ Crisis: 1919-1939: An
Introduction to the Study of International Relations (MacMillan 2d ed 1962). For more
recent elaborations of realism, see Kenneth Waltz, A Theory of International Politics
(Addison-Wesley 1979) [SNC: recalled 1.13] [PUB: please propose pin and parenthetical
if possible. Thanks, Bill]; John J. Mearsheimer, The Tragedy of Great Power Politics 48–
51 (Norton 2001) (arguing that what appears to be peace is little more than an unintended
byproduct of states pursuing their self-interest and is, as such, unstable).
7
Kennan, American Diplomacy at 95 (cited in note 6) [SNC: recalled 1.13].
8
Robert H. Bork, The Limits of “International Law”, Natl Interest 3, 10 (Winter
1989/90).
9
See Martha C. Nussbaum, [TITLE OF ESSAY], in Joshua Cohen, ed, For Love of
Country: Debating the Limits of Patriotism [START PAGE] (Beacon 1996); John Rawls,
The Law of Peoples (Harvard 1999) [SNC: search initiated 1.14]; Michael Walzer, Just
and Unjust Wars: A Moral Argument with Historical Illustrations (Basic 1977). See also
Thomas W. Pogge, An Egalitarian Law of Peoples, 23 Phil & Pub Aff 195 (1994) [PUB:
please propose parenthetical for Pogge. Thanks, Bill].
10
See, for example, Fernando R. Teson, Humanitarian Intervention: An Inquiry into
Law and Morality 149 (Transnational 2d ed 1997) (arguing that the ordinary tools of
treaty interpretation, including an examination of the text and state practice, are
ambiguous, but the UN Charter should be interpreted to allow humanitarian intervention
in light of moral-political values); Sean D. Murphy, Humanitarian Intervention: The
United Nations in an Evolving World Order 389-91 (Penn 1996) (asserting that the UN
Charter fails to specifically permit the use of force for humanitarian purposes) .
11
See generally John C. Yoo, Kosovo, War Powers, and the Multilateral Future, 148
U Pa L Rev 1673 (2000).
12
See generally John L. Gaddis, Strategies of Containment: A Critical Appraisal of
Postwar American National Security Policy (Oxford 1982) [SNC: recalled 1.13]; John
Lewis Gaddis, We Now Know: Rethinking Cold War History (Oxford 1997).
13
UN SCOR, 3989th mtg, UN Doc S/PV.3989 6 (1999) (remarks of the British
representative to the United Nations).
14
See William H. Taft IV and Todd F. Buchwald, Preemption, Iraq, and International
Law, 97 Am J Intl L 557, 562-63 (2003) (arguing that the latest Iraqi conflict should be
seen as part of a protracted conflict dating back more than a decade and that US action
was lawful).
15
The National Security Strategy of the United States of America 6 (September
2002), online at http://www.whitehouse.gov/nsc/nss.pdf (visited Jan 13, 2004).
16
Id (emphasis added).
17
Id at 13-14.

45
 18
Id at 15.
19
Id.
20
Id.
21
Id.
22
See generally 97 Am J Intl L 553 (cited in note 5) (addressing legal issues
pertaining to the use of force in Iraq); 93 Am J Intl L 824 (cited in note 5) (addressing
legal issues pertaining to the use of force in Kosovo).
23
See, for example, Franck, 97 Am J Intl L 607, 610-14 (cited in note 1) (arguing that
the Iraqi invasion is not legal under the UN Charter and can only be thought of as
revising or undermining the Charter); Richard A. Falk, What Future for the UN Charter
System of War Prevention?, 97 Am J Intl L 590, 593 (2003) (calling US action a
circumvention of the Charter system); Tom J. Farer, The Prospect for International Law
and Order in the Wake of Iraq, 97 Am J Intl L 621, 626 (2003) (noting an American
attitude of open defiance for the UN rather than a strong desire to make the international
legal regime work); Jane E. Stromseth, Law and Force after Iraq: A Transitional Moment,
97 Am J Intl L 628, 629-31 (2003) (asserting that the legal authority for the Iraq invasion
is a close case in light of Resolution 1441); Michael J. Glennon, Why the Security
Council Failed, 82 Foreign Aff 16, 24 (May/June 2003) (observing that in the wake of
Kosovo, the US no longer felt obligated to receive prior Security Council authorization
for the use of force and that it no longer felt bound by the Charter’s terms of what uses of
force were lawful and unlawful); Anthony Clark Arend, International Law and the
Preemptive Use of Military Force, 26 Wash Q 89, 101 (Spring 2003) (pointing out that
the language of the 2002 National Security Strategy is in violation of international law’s
imminence requirement as it is conventionally understood). But see Ruth Wedgwood,
The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-Defense,
97 Am J Intl L 576, 578-82 (2003) (arguing that the US action in Iraq was legal under the
resolutions of the UN).
24
UN Charter Art 2(4).
25
Some have argued about the exact breadth of Article 2(4). Some see it as a
complete prohibition on the use of force against a state except to prevent aggression.
Others believe it should be narrowly construed to allow for uses of force, so long as
nations did not engage in territorial conquest or regime change and promoted the
principles of the UN. See, for example, Bowett, Self-Defence in International Law at 152
(cited in note 4) (arguing that the plain meaning of Article 2(4) does not prohibit the
“invasion of territory necessitated by the imminence of an attack from that territory”);
Brownlie, International Law and the Use of Force by States at 265-68 (cited in note 4)
(rejecting a plain meaning approach to interpretation of Article 2(4)).
26
UN Charter Art 42.
27
UN Charter Art 51.
28
See, for example, Yoram Dinstein, War, Aggression, and Self-Defence 167-68
(Cambridge 3d ed 2001).
29
See Brownlie, International Law and the Use of Force by States at 275-80 (cited in
note 4) (reading Article 51 to require a trespass).

46
 30
See, for example, Antonio Cassese, Return to Westphalia? Considerations on the
Gradual Erosion of the Charter System, in Antonio Cassese, ed, The Current Legal
Regulation of the Use of Force 505, 515-16 (Nijhoff 1986) (concluding that Article 51
permits anticipatory self-defense, but arguing for strict scrutiny of such claims because of
the risk of pretext).
31
See, for example, Brownlie, International Law and the Use of Force by States at
272-75 (cited in note 4) (arguing that Article 51 fully displaces the pre-Charter
international system with its more expansive grounds for the use of force).
32
See Myres S. McDougal, The Soviet-Cuban Quarantine and Self-Defense, 57 Am J
Intl L 597, 599 (1963) (“There is not the slightest evidence that the framers of the United
Nations Charter, by inserting one provision which expressly reserves a right of self-
defense, had the intent of imposing by this provision new limitations on the traditional
right of states.”). See also Abraham D. Sofaer, International Law and Kosovo, 36 Stan J
Intl L 1, 16 (2000) (advocating the abandonment of rigid and often dishonest rule based
evaluations of use of force decisions in favor a more flexible standard that might elicit
honest reason-giving by international actors); Bowett, Self-Defence in International Law
at 182 (cited in note 4) (asserting that Article 51 is a mere explicit codification of the pre-
Charter, unimpaired right of self-defense).
33
Frank B. Kellogg, Address before the American Society of International Law, 22
Proc Am Socy Intl L 141, 143 (Apr 28 1928). See also Michael J. Glennon, The Fog of
Law: Self-defense, Inherence, and Incoherence in Article 51 of the United Nations
Charter, 25 Harv J L & Pub Pol 539, 558 (2002) (noting that states will come to their own
conclusions, irrespective of the UN Charter, as to the use of force for self-defense
because “defense is necessary for survival and survival is intrinsic in the very fact of
statehood”).
34
See, for example, Oscar Schachter, The Right of States to Use Armed Force, 82
Mich L Rev 1620, 1634 (1984) (“In my view it is not clear article 51 was intended to
eliminate the customary law right of self-defense and it should not be given that effect.
But we should avoid interpreting the customary law as if it broadly authorized
preemptive strikes and anticipatory defense in response to threats.”). See also Sofaer, 36
Stan J Intl L at 16 (cited in note 32).
35
Case Concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v United States), 1986 ICJ 14 (finding US action in breach of international
customary law).
36
Memorandum for the Attorney General, from Norbert A. Schlei, Assistant Attorney
General, Office of Legal Counsel, Re: Legality under International Law of Remedial
Action against Use of Cuba as a Missile Base by the Soviet Union 2 (Aug 30, 1962),
reprinted in 6 Green Bag 2d 195, 196 (2003).
37
Letter from Daniel Webster, US Secretary of State, to Henry Fox, British Minister
in Washington (Apr 24, 1841), reprinted in Kenneth Bourne, ed, 1 Brit Documents on
Foreign Aff: Reports and Papers from the Foreign Office Confidential Print, Part I, Series
C 153, 159 (University 1986)
38
See Letter from Lord Ashburton to Daniel Webster, US Secretary of State (July 28,
1842), reprinted in Bourne, ed, 1 Brit Documents on Foreign Aff 332 (cited in note 37).

47
 39
See Letter from Daniel Webster, US Secretary of State, to Lord Ashburton (Aug 6,
1842), reprinted in Bourne, ed, 1 Brit Documents on Foreign Aff 346 (cited in note 37).
40
See International Military Tribunal (Nuremberg), 41 Am J Intl L 172, 205 (1947),
quoting John Bassett Moore, 2 International Law Digest § 2.17, at 412 (GPO 1906)
(“[P]reventive action in foreign territory is justified only in case of ‘an instant and
overwhelming necessity for self-defense, leaving no choice of means, and no moment for
deliberation.’”).
41
See, for example, Bowett, Self-Defence in International Law at 58 (cited in note 4)
(calling the case the locus classicus); Dinstein, War, Aggression, and Self-Defence at
218-19 (cited in note 28) (observing that Webster’s formulation has transcended “the
specific legal contours of extra-territorial law enforcement, and has markedly influenced
the general material of self-defence”).
42
Gray, International Law and the Use of Force at 105 (cited in note 4).
43
Walzer, Just and Unjust Wars (cited in note 9).
44
UN Charter Art 2(7).
45
See Franck, Recourse to Force at 136 (cited in note 4) (suggesting that because even
egregious human rights violations by a government against its own citizens do not rise to
the level of an armed attack upon the putative intervening nation, Articles 2(4) and 51
prohibit the use of force in humanitarian interventions).
46
Louis Henkin, Kosovo and the Law of “Humanitarian Intervention”, 93 Am J Intl L
824, 826 (1999).
47
See, for example, Oscar Schachter, International Law in Theory and Practice 126
(1991) [SNC: Ill request 1.14].
48
See, for example, Teson, Humanitarian Intervention 119-20 (cited in note 10)
(arguing that, insofar as states are without autonomous rights and a state’s right to self-
defense is merely derivative of its citizens’ human rights, any state may use force to
defend the human rights of any individuals); Michael Reisman, Humanitarian
Intervention to Protect the Ibos, in Richard B. Lillich, ed, Humanitarian Intervention and
the United Nations 167, 177 (Virginia 1973) (arguing that the protection of human rights
is a purpose of the United Nations, and thus the use of force in humanitarian interventions
is not prohibited by Article 2(4)).
49
See, for example, Brad R. Roth, Governmental Illegitimacy in International Law
(Oxford 1999) [SNC: search initiated 1.14]; W. Michael Reisman, Sovereignty and
Human Rights in Contemporary International Law, 84 Am J Intl L 866, 869-70 (1990)
(arguing for a conceptual shift from an international legal system that protects the
sovereign’s sovereignty to one that protects the people’s sovereignty); Anthony
D’Amato, The Invasion of Panama Was a Lawful Response to Tyranny, 84 Am J Intl L
516, 516-19 (1990) (arguing that such a conceptual shift would not only legally justify,
but morally require the US intervention in Panama to address Noriega’s tyranny against
the Panamanian people); Thomas M. Franck, The Emerging Right to Democratic
Governance, 86 Am J Intl L 46, 90-91 (1992) (suggesting that democracy is on its way to
becoming a global entitlement and that the international system of law must adjust in
such a way as to ensure that right to all).

48
 50
See, for example, Brownlie, International Law and the Use of Force by States at
264-80 (cited in note 4).
51
Thomas M. Franck, Who Killed Article 2(4)?: Or: Changing Norms Governing the
Use of Force by States, 64 Am J Intl L 809, 836 (1970).
52
See Franck, Recourse to Force at 174-91 (cited in note 4) (arguing that the
legitimacy of international law is itself undermined where it produces absurd results that
do not comport with moral intuitions).
53
See Franck, 97 Am J Intl L 607, 610 (cited in note 1) (observing that the UN
Charter system for restraining the use of force “has died again, and, this time, perhaps for
good”).
54
Falk, 97 Am J Intl L at 593 (cited in note 23); Richard A. Falk, Kosovo, World
Order, and the Future of International Law, 93 Am J Intl L 847, 854-856 (1999).
55
Glennon, 82 Foreign Aff at 24 (cited in note 23) (“As Powell said on October 20,
‘the president believes he now has the authority [to intervene in Iraq] . . . just as we did in
Kosovo.’ There was, of course, no Security Council authorization for the use of force by
NATO against Yugoslavia. That action blatantly violated the UN Charter[.]”) (emphasis
in original); Michael Glennon, Limits of Law, Prerogatives of Power (2001) [SNC].
56
Henkin, Use of Force: Law and US Policy at 53 (cited in note 4).
57
58
K.J. Holsti, The State, War, and the State of War 24 (Cambridge 1996). Interstate
wars include armed intervention involving significant loss of life, but exclude imperial
wars, war among or against non-members of the central state system, and wars of
national liberation.
59
Milton Leitenberg, Deaths in Wars and Conflicts between 1945 and 2000, Working
Paper 9 (July 2003), online at
http://www.puaf.umd.edu/CISSM/People/milton_files/deaths%20wars%20conflicts.pdf
(visited Jan 18, 2004).
60
Id.
61
Nils Petter Gleditsch, et al, Armed Conflict 1946-99: A New Dataset (unpublished
ms, May 2001).
62
Holsti, The State, War, and the State of War at 21 (cited in note 58) (defining
internal as armed conflict not with another state, but between armed factions within the
same state).
63
Leitenberg, Working Paper at (cited in note 59).
64
Holsti, The State, War, and the State of War at 23 (cited in note 58).
65
See, for example, Waltz, A Theory of International Politics (cited in note 6) [SNC:
recalled 1.13]; Hedley Bull, The Anarchical Society 199-221 (Columbia 2d ed 1995)
(suggesting that the United States and the Soviet Union promoted international order by
preserving the balance of power, avoiding or containing conflict between one another,
controlling their own sphere of influence and respecting that of the other’s, and engaging
in order enhancing joint actions).
66
See John A. Vasquez, What Do We Know About War (Rowman 2000); John A.
Vasquez, The War Puzzle (Cambridge 1993).

49
 67
The Cuban Missile Crisis serves as a good example. See generally Abram Chayes,
The Cuban Missile Crisis: International Crisis and the Role of Law (Oxford 1974)
(discussing the interaction between the UN/OAS and actions taken by the Kennedy
administration during the Cuban Missile Crisis); Memorandum for the Attorney General,
reprinted in 6 Green Bag 2d 195 (cited in note 36) (analyzing international law to
conclude that it permits the Kennedy administration to take relatively extreme measures
in response to the installation of missile bases in Cuba).
68
John Lewis Gaddis, The Long Peace: Inquiries into the History of the Cold War
219-37 (Oxford 1987) (crediting both structural and behavioral factors for the stability of
the Cold War international regime).
69
Waltz, A Theory of International Politics (cited in note 6) [SNC: recalled 1.13].
This was not the view, however, of an earlier realist, Hans Morgenthau, who believed
that a multipolar distribution of power more akin to the Concert of Europe in the
Nineteenth Century would create international stability. See Morgenthau, Politics among
Nations at 440 (cited in note 6) (contending that “[t]he two-bloc system . . . is more
unsafe from the point of view of peace than any other”).
70
See Webster’s Third New International Dictionary: Unabridged 1130 (Meriam-
Webster 1986) (defining “imminent” as “ready to take place: near at hand: IMPENDING
<our ~ departure>; usu: hanging threateningly over one’s head: menacingly near”).
71
International Law Commission, Draft Articles on the International Responsibility of
States Art 33.
72
Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), 1997 ICJ
7, ¶¶ 15-22.
73
Id at ¶ 52.
74
Id at ¶ 54 (internal citations omitted). The ICJ found that, because the dangers cited
by Hungary were uncertain, the alleged peril was not “imminent.” Id at ¶¶ 55-56.
75
See Paul H. Robinson, 2 Criminal Law Defenses § 131(c)(1) (West 1984).
76
See sources collected in Clare Dalton and Elizabeth M. Schneider, Battered Women
and the Law 716-93 (Foundation 2001).
77
The criminal law of self-defense, for example, has changed its conception of
necessity from using force to defend one’s honor to self-defense as a mechanistic,
unwilling response to attack. See Dan M. Kahan and Martha C. Nussbaum, Two
Conceptions of Emotion in Criminal Law, 96 Colum L Rev 269, 327-32 (1996)
(suggesting that the mechanistic, fear-of-death driven view of self-defense is incomplete
and must be supplemented by an understanding that the law occasionally acknowledges
the validity of other emotional states such as indignation); Dan M. Kahan, The Secret
Ambition of Deterrence, 113 Harv L Rev 413, 431-35 (1999) (discussing Justice
Holmes’s reconceptualization of the “true man” doctrine from one in which the law
condoned the use of force to protect an interest in honor to one in which the use of force
was thought of as a reflexive act of necessity).
Criminal law has also changed its conception of what can be defended with deadly
force. In New York, an individual could use deadly force not just for self-preservation,
but also to prevent kidnapping, forcible rape, forcible sodomy or robbery. NY Penal Law
§ 35.15 (McKinney 1998); People v Goetz, 68 NY2d 96, 497 NE2d 41 (1986). This is

50
consistent with John Locke, who also believed that force could be used to kill thieves as
well as to engage in self-preservation. Locke believed that allowing a thief to steal
property was akin to allowing him to place a person within his total control, and that this
deprivation of freedom was enough to trigger a right of self-defense. See John Locke,
Two Treatises of Government §§ 16-18 (1690) [SNC: recalled 1.13]; see also the helpful
discussion in Jeremy Waldron, Self-Defense: Agent-Neutral and Agent-Relative
Accounts, 88 Cal L Rev 711, 733-45 (2000) (exploring Locke’s position on self-defense).
78
See Schenck v United States, 249 US 47, 52 (1919) (Holmes); Abrams v United
States, (Holmes dissenting). The modern test for incitement, set forth in Brandenburg v
Ohio, 395 US 444 (1969), permits government regulation of speech that is directed at
inciting or producing imminent lawless action and is likely to succeed.
79
Richard A. Posner, Frontiers of Legal Theory 62-71 (Harvard 2001) (taking an
instrumental view of the First Amendment in which free speech is valued only insofar as
it leads to other valued outcomes). See also Daniel A. Farber, Free Speech without
Romance: Public Choice and the First Amendment, 105 Harv L Rev 554 (1991) (taking
an economic approach to First Amendment issues).
80
Posner, Frontiers of Legal Theory at 64 (cited in note 79) (emphasis in original).
81
Id at 64–65.
82
Compare Jed Rubenfeld, The First Amendment’s Purpose, 53 Stan L Rev 767, 829
(2001) (arguing that the Brandenburg test does not allow speech to be banned based on
its high probability of leading to a harmful act, but rather requires such proximity
between the speech and the harmful act that they are in fact indistinguishable), with
Richard A. Posner, Pragmatism versus Purposivism in First Amendment Analysis, 54
Stan L Rev 737 (2002) (providing a pragmatic criticism of Rubenfeld’s position).
83
Posner recognizes this problem. See Posner, Frontiers of Legal Theory at 73-76
(cited in note 79) (suggesting that part of the difficulty can be overcome by assigning
individual speech acts to pre-set speech categories rather than attempting case-by-case
cost-benefit analysis).
84
Legality of the Threat or Use of Nuclear Weapons in Armed Conflict, 1996 ICJ
226, 244 at ¶ 36 (advisory opinion) (applying UN Charter law to the question “Is the
threat or use of nuclear weapons in any circumstances permitted under international
law?”).
85
McDougal, 57 Am J Intl L at 598 (cited in note 32). See also W.T. Mallison, Jr.,
Limited Naval Blockade or Quarantine-Interdiction: National and Collective Defense
Claims Valid Under International Law, 31 Geo Wash L Rev 335, 348 (1962-63) (“In the
contemporary era of nuclear and thermo-nuclear weapons and rapid missile delivery
techniques, Secretary Webster’s formulation could result in suicide if it actually were
applied.”).
86
US Department of the Navy, The Commander’s Handbook on the Law of Naval
Operations (NWP 1-14M), 4-13, ¶ 4.3.2.1, n 32 (Oct 1995).
87
See Gregory M. Travalio, Terrorism, International Law, and the Use of Military
Force, 18 Wis Intl LJ 145, 155 (2000) (suggesting that some terrorist organizations are
capable of posing a much greater threat than the militaries of many nations).

51
 88
But see Myres S. McDougal and Florentino P. Feliciano, Law and Minimum World
Public Order: The Legal Regulation of International Coercion 231 (1960) (stating that the
degree of imminence must be “so high . . . as to preclude effective resort by the intended
victim to non-violent modalities of response”) [SNC: search initiated 1.14]; Bowett, Self-
Defence in International Law at 53 (cited in note 4) (arguing that force may be used in
self-defense only when no alternate means of protection are available).
89
See United States v Carroll Towing Co, 159 F2d 169, 173 (2d Cir 1947).
90
See, for example, Adrian Vermeule, Interpretive Choice, 75 NYU L Rev 74, 91 n
68 (2000) (collecting sources); Cass R. Sunstein, Problems with Rules, 83 Cal L Rev 953
(1995); Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke LJ 557
(1992); Richard A. Epstein, Simple Rules for a Complex World 30-36 (Harvard 1995).
91
Vermeule, 75 NYU L Rev at 91 (cited in note 90) (considering whether courts
should adopt rules or standards in their approach to statutory interpretation).
92
See generally id at 92–93 (considering the scope of the rule and the trustworthiness
of the decision applier, in addition to the comparative competence of the decisionmaker,
as factors in deciding who should have the decisionmaking authority).
93
See Barbara W. Tuchman, The Guns of August 17-68 (MacMillan 1962) (providing
a vivid historical account of the timetables for mobilizing the large armies that began the
First World War).
94
American intelligence agencies collect and analyze both human intelligence
(HUMINT) and technical intelligence (TECHINT) about foreign threats and
opportunities. See Loch K. Johnson, Secret Agencies: US Intelligence in a Hostile World
31-36 (Yale 1996) (observing an increasing emphasis on TECHINT vis-à-vis HUMINT
over the course of the last half century); H. Bradford Westerfield, ed, Inside CIA’s
Private World: Declassified Articles from the Agency’s Internal Journal, 1955-1992 29-
96 (Yale 1995) (detailed exposition on various sources of HUMINT).
95
For discussion and criticism of this point, see Jack Goldsmith and Eric Posner, A
Theory of Customary International Law, 66 U Chi L Rev 1113 (1999).
96
Franck, Recourse to Force at 5–9, 171–72 (cited in note 4) (discussing how the
Kosovo intervention might be a precursor to a reinterpretation of the UN Charter).
97
See John F. Kennedy, Proclamation 3504: Interdiction of the Delivery of Offensive
Weapons to Cuba (DATE), reprinted in Public Papers of the Presidents of the United
States: President John F. Kennedy: Containing the Public Messages, Speeches, and
Statements of the President: January 1 to December 31, 1962 809, 810 (GPO 1963)
(ordering US Armed Forces to interdict offensive weapons and associated materiel en
route to Cuba “to defend the security of the United States”); John F. Kennedy, White
House Statement on Soviet Proposals Relating to International Security (DATE),
reprinted in id at 813 (describing threat as “immediate”).
98
Compare McDougal, Soviet-Cuban Quarantine, 57 Am J Intl L at 601–03 (cited at
note 32) (concluding that the President’s actions were in accord with notions of self-
defense), with The Legal Case for US Action on Cuba, 47 Dept State Bull 763, 764–65
(Nov 19, 1962) (“The quarantine action was designed to deal with an imminent threat to
our security. But the President . . . did not invoke article 51 or the right of self-defense.”).
[ILL] [SNC]

52
 99
John F. Kennedy, Radio and Television Report to the American People on the
Soviet Arms Buildup in Cuba (Date), in Public Papers of President Kennedy 806, 806–07
(cited in note 97) (discussing how the nuclear missiles in Cuba upset the balance of
power).
100
Some argue that in 1962 a direct Soviet attack would have been “inconceivable”
because the nuclear balance of power so highly favored the United States. See Stanimir
A. Alexandrov, Self-Defense Against the Use of Force in International Law 158–59
(Kluwer 1996).
101
Kennedy, Report to the American People at 807 (cited in note 99).
102
For a discussion of the legality of the US blockade, compare McDougal, Soviet-
Cuban Quarantine, 57 Am J Intl L at 603 (arguing that the quarantine was justified as
self-defense), with Quincy Wright, The Cuban Quarantine, 57 Am J Intl L 546, 563–64
(1963) (arguing that the quarantine was not a lawful act of self defense due to lack of an
armed attack).
103
Memorandum for the Attorney General, reprinted in 6 Green Bag 2d at 195–96
(cited in note 36) (concluding that the United States would be justified in taking measures
against the establishment of missile bases in Cuba).
104
See Timothy L.H. McCormack, Self-Defense in International Law: The Israeli
Raid on the Iraqi Nuclear Reactor 297–302 (St. Martin’s 1996) (concluding that the
Israeli attack was justified as anticipatory self-defense); Anthony D’Amato, Israel’s Air
Strike Against the Osiraq Reactor: A Retrospective, 10 Temple Intl & Comp L J 259,
262–63 (1996) (arguing that the attack was justified because Israel was acting as a proxy
for the international community); Mallison and Mallison, The Israeli Aerial Attack of
June 7, 1981, upon the Iraqi Nuclear Reactor: Aggression or Self-Defense?, 15 Vand J
Transnatl L 417, 431–33, 444 (1982).
105
SC Res 487, UN Doc S/RES/487 (1981) (italics omitted).
106
See Martin A. Rogoff and Edward Collins, Jr., The Caroline Incident and the
Development of International Law, 16 Brooklyn J Intl L 493, 508–09 (1990).
107
UN SCOR, 36th Sess, 2288th mtg, at para 80, UN Doc S/PV.2288 (1981).
108
See Ronald Reagan, The President’s News Conference (DATE), in Public Papers
of the Presidents of the United States: Ronald Reagan: 1981 519, 520 (GPO 1982);
Statement and Remarks by the Department of State Spokesman (Fischer) at the Daily
Press Briefing, June 8, 1981, 1:09 p.m. (Extracts), in Department of State, American
Foreign Policy Current Documents 1981 684, 684 (GPO 1984).
109
Statement by the Representative at the United Nations (Kirkpatrick) Before the UN
Security Council, June 19, 1981, in American Foreign Policy Current Documents 1981
689, 690 (GPO 1984).
110
One of these attacks involved the firing by Libya of surface-to-air missiles at US
aircraft flying over international waters in the Gulf of Sidra. US Armed Forces responded
by taking “limited measures of self-defense necessary to protect themselves from
continued attack.” Ronald Reagan, Letter to the Speaker of the House of Representatives
and the President Pro Tempore of the Senate on the Gulf of Sidra Incident (DATE), in 1
Public Papers of the Presidents of the United States: Ronald Reagan: 1986 406 (GPO

53
1988). See also Ronald Reagan, Address to the Nation on the United States Air Strike
Against Libya (Date), in id 468, 468–69.
111
UN Doc S/PV.2674 at 17 (Apr 15, 1986) (statement of US Permanent
Representative to the United Nations). [ILL] [SNC]
112
See Ronald Reagan, Address on Air Strike Against Libya at 469 (cited in note 110)
(“Self-defense is not only our right, it is our duty.”); Ronald Reagan, Letter to the
Speaker of the House of Representatives and the President Pro Tempore of the Senate on
the United States Air Strike Against Libya (DATE), in 1 Public Papers of President
Reagan: 1986 478 (cited in note 110) (“These strikes were conducted in the exercise of
our right to self-defense under Article 51 of the United Nations Charter.”). See also UN
Doc S/17990 (Apr 14, 1986) (statement of ---) (“The Libyan policy of threats and use of
force is in clear violation of Article 2, paragraph 4, of the Charter. It has given rise to the
entirely justifiable response by the United States.”) [ILL] [SNC]. The United States also
justified the strikes as a response to what amounted to an armed attack by Libya on US
citizens. See Ronald Reagan, Address on the Air Strike Against Libya at 469. Even
before the La Belle bombing, President Reagan had argued that Libya’s provision of
material support to terrorist groups that attack US citizens amounted to armed aggression
under established principles of international law. Ronald Reagan, The Present’s News
Conference (DATE), in 1 Public Papers of President Reagan: 1986 17 (cited in note 110)
(discussing Libyan support of terrorist groups). See also Low-Intensity Warfare: the
Challenge of Ambiguity, 86 Dept State Bull 15, 17 (Mar 1986). [ILL] [SNC] For a
discussion of the legality of the strikes, compare Abraham D. Sofaer, Terrorism, the Law
and the National Defense, 126 Mil L Rev 89, 104–05 (1989) (justifying the strikes as
self-defense); Wallace F. Warriner, The Unilateral Use of Coercion Under International
Law: A Legal Analysis of the United States Raid on Libya on April 14, 1986, 37 Naval L
Rev 49, 90–95 (1988) (same); Gregory F. Intoccia, American Bombing of Libya: An
International Legal Analysis, 19 Case W Res J Intl L 177, 212–13 (1987) (same), with
Major Michael Lacey, Self-defense or Self-denial: the Proliferation of Weapons of Mass
Destruction, 10 Ind Intl & Comp L Rev 293 (2000) (attacks not justified as self-defense)
[SNC]; Christopher Greenwood, International Law and the United States Air Operation
Against Libya, 89 W Va L Rev 933, 946–48 (1986-87) (attacks probably not justified as
self-defense).
113
Ronald Reagan, Letter on the United States Air Strike Against Libya at 478 (cited
in note 112).
114
See Ronald Reagan, Address on Air Strike against Libya at 469 (cited in note 110)
(indicating “peaceful avenues” were sought before the air strike).
115
Ronald Reagan, Letter on the United States Air Strike against Libya at 478 (cited
in note 112).
116
U.N. Doc. S/PV 2682 (1986).
117
George Bush, Address to the Nation Announcing United States Military Action in
Panama (DATE), in 2 Public Papers of the Presidents of the United States: George Bush:
1989 1722, 1723 (GPO 1990).

54
 118
George Bush, Letter to the Speaker of the House of Representatives and the
President Pro Tempore of the Senate on United States Military Action in Panama
(DATE), in 2 Public Papers of President Bush: 1989 1734, 1734 (cited in note 117).
119
Marian Nash Leich, Contemporary Practice of the United States Relating to
International Law: Use of Force, 84 Am J Int’l L 545, 548 (1990). The United States also
justified its actions as self-defense resulting from the armed attacks against US citizens.
See Letter from the Permanent Representative of the United States of America to the
United Nations Addressed to the President of the Security Council, UN Doc S/21035
(Dec 20, 1989) (“1989 UN Letter”) [ILL] [SNC]. In addition to protecting US citizens,
the invasion had three other objectives: (1) helping to restore democracy in Panama, (2)
protecting the integrity of the Panama Canal Treaties, and (3) bringing Noriega to justice.
See Ved P. Nanda, The Validity of United States Intervention in Panama Under
International Law, 84 Am J Intl L 494, 494 (1990) (quoting a statement by President
Bush on January 3, 1990).
120
Letter to the Speaker of the House of Representatives and the President Pro
Tempore of the Senate on United States Military Action in Panama, 2 Pub Papers of
George Bush 1734 (1989)
121
Compare Abraham D. Sofaer, The Legality of the United States Action in Panama,
29 Colum J Transnatl L 281, 290 (1991).
122
For a discussion of the legality of the US military action, see Louis Henkin, The
Invasion of Panama Under International Law: A Gross Violation, 29 Colum J Transnatl L
293, 295 (1991) (arguing that the Panama intervention violated international law); Nanda,
84 Am J Intl L at 496–97 (cited in note 119) (arguing that the US intervention in Panama
violated international law because it failed to show necessity); Tom J. Farer, Panama:
Beyond the Charter Paradigm, 84 Am J Intl L 503, 514 (1990) (concluding that Noriega
was not Panama’s legitimate leader, and that US invasion was probably justified); Sofaer,
29 Colum J Transnatl L at 291 (cited in note 121) (concluding that the invasion was
justified and valid under international law).
123
See William J. Clinton, Letter to Congressional Leaders on the Strike on Iraqi
Intelligence Headquarters (DATE), in 1 Public Papers of the Presidents of the United
States: William J. Clinton: 1993 940 (GPO 1994).
124
Id. The strikes were also justified as a response to an attack against the United
States. See William J. Clinton, Address to Nation on the Strike on Iraqi Intelligence
Headquarters (DATE), in 1 Public Papers of President Clinton: 1993 938 (cited in note
123) (“[T]he Iraqi attack against President Bush was an attack against our country and
against all Americans.”).
125
Id (indicating the cruise missile attack would deter future malfeasance). Similarly,
the January 17, 1993 strike on a nuclear facility in Baghdad, while primarily designed to
encourage Iraq to comply with its obligations, was undertaken in part to prevent the
facility from being used again to support Iraq’s nuclear weapons program. See George
Bush, Letter to Congressional Leaders Reporting on Iraq’s Compliance with United
Nations Security Council Resolutions (DATE), in 2 Public Papers of the Presidents of the
United States: George Bush: 1992–93 2269, 2269–70 (GPO 1993) (stating that the strike
was designed to advance the goals of several UN resolutions).

55
 126
For a discussion of the legality of the US strikes, see Robert F. Teplitz, Taking
Assassination Attempts Seriously: Did the United States Violate International Law in
Forcefully Responding to the Iraqi Plot to Kill George Bush?, 28 Cornell Intl L J 569,
606–07 (1995) (stating that the UN accepted the US explanation and evidence for the
attack without condemnation); Ryan C. Hendrickson, Article 51 and the Clinton
Presidency: Military Strikes and the U.N. Charter, 19 BU Intl L J 207, 214 (2001)
(arguing that the 1993 strikes did not satisfy requirements of anticipatory self-defense);
John Quigley, Missiles with a Message: The Legality of the United States Raid on Iraq’s
Intelligence Headquarters, 17 Hastings Intl & Comp L Rev 241, 260–61 (1994) (same);
Dino Kritsiotis, The Legality of the 1993 US Missile Strikes on Iraq and the Right of
Self-Defence in International Law, 45 Intl & Comp L Q 162, 174–77 (1996) (stating that
it was impossible to determine the legality of the strikes).
127
William J. Clinton, Letter to Congressional Leaders Reporting on Military Action
Against Terrorist Sites in Afghanistan and Sudan, in 2 Public Papers of the Presidents of
the United States: William J. Clinton: 1998 1464 (GPO 2000). See also William J.
Clinton, Remarks in Martha’s Vineyard, Massachusetts, on Military Action Against
Terrorist Sites in Afghanistan and Sudan (DATE), in id 1460 (noting the existence of
“compelling information” that additional terrorist attacks against US citizens were being
planned, and that the groups affiliated with bin Laden were seeking to acquire chemical
and other dangerous weapons).
128
Ruth Wedgwood, Responding to Terrorism: the Strikes against Bin Laden, 24 Yale
J Intl L 559, 565 (1999).
129
See Letter from the Permanent Representative of the United States of America to
the United Nations Addressed to the President of the Security Council, UN Doc
S/1998/780 (Aug 20, 1998) [ILL] [SNC]. The United States also justified the strikes as a
response in self-defense to the embassy attacks. See id. [SNC]
130
For a discussion of the legality of the US strikes, compare Wedgwood, 24 Yale J
Intl L at 564 (cited in note 128) (concluding that the attacks were justified), with Jules
Lobel, The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and
Afghanistan, 24 Yale J Intl L 537, 557 (1999) (concluding that the attacks “represent the
assertion of imperial might and arrogance in opposition to international law”).
131
See Michael N. Schmitt, State-Sponsored Assassination in International and
Domestic Law, 17 Yale J Intl L 609, 648 (1992) (noting that a state that fails to act
against a terrorist may lose the chance to act at all).
132
Low-Intensity Warfare: the Challenge of Ambiguity, 86 Dept State Bull at 17
(cited in note 112). [ILL] [SNC]
133
For a description of the political and legal events leading up to the Iraq war, see
John Yoo, International Law and the War in Iraq, 97 Am J Intl L 563, 564–71 (2003)
(describing the political and legal events preceding the Iraq war).
134
SC Res 1441, UN Doc S/Res/1441 1, para 13 (2002).
135
See Padilla v Bush, 233 F Supp 2d 564, 572–73 (SDNY 2002).
136
See Sofaer, 126 Milit L Rev at 116–21 (cited in note 112) (discussing the limits of
the term “assassination”); W. Hays Parks, Memorandum of Law: Executive Order 12333
and Assassination, Army Lawyer 4, 7–8 (Dec 1989) (discussing various protective

56
military operations which should not be understood as attempted assassinations). The ban
on assassination was first established by President Ford in Executive Order 11905 and
continues today under Executive Order 12333. Sofaer, 126 Milit L Rev at 116. According
to Sofaer and Parks, the assassination ban applies only to murder and not to killings for
which there is a legal justification, such as self-defense, or which take place in wartime.
See id at 119 (suggesting that the term ‘assassination’ should be limited to “illegal
killings”); Parks, Army Lawyer at 1–2.
137
An excuse, by contrast, concedes that the act was wrongful but that it is not
morally attributable to the actor. George P. Fletcher, Rethinking Criminal Law 811
(Oxford 2000).
138
George P. Fletcher, Basic Concepts of Criminal Law 133 (Oxford 1998)
(discussing the common characteristics of self-defense across jurisdictions); George
Fletcher, A Crime of Self-Defense: Bernhard Goetz and the Law on Trial 19 (Free Press
1988). [RECALL] [SNC]
139
Fletcher, Basic Concepts at 134 (cited in note 138).
140
Model Penal Code § 3.04 (ALI 1985).
141
Fletcher, Basic Concepts at 134 (cited in note 138).
142
Id at 135 (discussing the requirement of “proportionality”).
143
Id at 134.
144
Id.
145
See, for example, Dinstein, War, Aggression, and Self-Defence at 160 (cited in
note 28) (discussing the application of criminal law concepts of self-defense to
international law by early writers); M.A. Weightman, Self-Defense in International Law,
37 Va L Rev 1095, 1099–102 (1951) (discussing early conceptions of war and self-
defense). See also David Rodin, War and Self-Defense 118 (Oxford 2002) (describing
similarities of the two doctrines) [RECALLED] [SNC]. International legal rules
concerning self-defense can also trace some of their origins to the Just War theory as
developed by the Romans and Christian thinkers, who heavily influenced the seventeenth
and eighteenth century writers on international law. See Id at 104.
146
Cass Sunstein, Moral Heuristics, 180 John M. Olin Law & Economics Working
Paper (2d series) 2 (2003), online at http://www.law.uchicago.edu/Lawecon/index.html.
147
Hugo Grotius, Law of War and Peace, book II, ch I, para III. [SNC]
148
Id para. XVI. [SNC]
149
Emmerich de Vattel, Law of Nations, book II, ch. IV. [SNC]
150
Id. [SNC]
151
David Luban, Just War and Human Rights, 9 Phil & Pub Aff 160, 166 (1980). See
also Thomas Nagel, Mortal Questions 64 (Cambridge 1979) (noting that “war, conflict,
and aggression are relations between persons”).
152
See generally Ingrid Detter, The Law of War (Cambridge 2d ed 2000) (discussing
difference between jus in bello and jus ad bellum rules); L.C. Green, The Contemporary
Law of Armed Conflict (Manchester 2d ed. 2000) (same).
153
See generally Detter, Laws of War (cited in note ).

57
 154
David Rodin, War and Self-Defense at 112 (cited in note 145) [RECALL] [SNC].
See also Walzer, Just and Unjust Wars at 111-17 (cited in note 9) (discussing reasons for
the demand of unconditional surrender in World War II).
155
Compare Walzer, Just and Unjust Wars at 55-58, 62 (cited in note 9) (suggesting
that it is justifiable under the Charter to defend poorly drawn borders even if they contain
thinly inhabited land).
156
Fletcher, Rethinking Criminal Law at 867 (cited in note 138).
157
Id.
158
United States v Peterson, 483 F2d 1222, 1229 (DC Cir 1973).
159
Thomas Franck, Recourse to Force at 98 (cited in note 4).
160
Id. Franck and others assume, however, that there is a correlation between the
strictness of a legal rule and the ability of nations to use the rule as a pretext to conceal
the true motives for a use of force. Nations have often claimed self-defense to justify
attacks, both before and after the UN Charter, and there is no indication that the rate of
these claims has declined as a result of a more restrictive set of rules. Cassese, Return to
Westphalia? at 515–16 (cited in 30). Similarly, there may well be no correlation between
a more flexible rule in the future and whether states will continue to claim pretextual
justifications. It may be true as a matter of domestic law that using a formal rule, as in
statutory interpretation, may reduce the amount of pretextual action by judges, but there
is no evidence that this occurs in the use of force area in international law, in part perhaps
because judges are subject to thicker institutional constraints, including appellate review
and override by Congress, that do not restrain nations.
161
Michael Walzer’s view, however, is that nations should not intervene in civil wars
unless another outside power has done so first. He argues that intervention in civil wars
interferes with the right of a people to choose their own form of government. See Michael
Walzer, The Moral Standing of States: A Response to Four Critics, 9 Phil & Pub Aff 209,
217 (1980) (claiming that foreign governments must treat tyrannical governments as if
they were legitimate). He has been criticized for ignoring the harm to human rights by
allowing a tyrannical regime to remain in place. See, for example, Charles Beitz,
Bounded Morality: Justice and the State in World Politics, 33 Intl Org 405 [ILL] [SNC];
Gerald Doppelt, Walzer’s Theory of Morality in International Relations, 8 Phil & Pub
Aff 1, 6–8 (1978); Luban, Just War and Human Rights, 9 Phil & Pub Aff at 168–70
(discussing Walzer’s “confusion” with respect to justified war; Richard Wasserstrom,
Book Review, Just and Unjust Wars, 92 Harv L Rev 536 (1978). John Rawls argues that
liberal societies have a right to intervene to prevent “egregious” human rights violations,
which presumably would include civil wars against oppressive regimes. John Rawls, Law
of Peoples at 93-94 n 6 (cited in note 9).
162
See generally Joseph S. Nye, The Paradox of American Power 137–71 (Oxford
2002) [SNC]; Inge Kaul, et al, eds, Global Public Goods: International Cooperation in the
21st Century (Oxford 1999) [SNC]; Todd Sandler, Global Challenges: An Approach to
Environmental, Political, and Economic Problems (Cambridge 1997); Charles P.
Kindleberger, International Public Goods without International Government, 76 Am
Econ Rev 1 (1986); Robert O. Keohane, After Hegemony: Cooperation and Discord in
the World Political Economy 49–64, 107–08 (Princeton 1984).

58
 163
A classic explanation can be found in Mancur Olson, The Logic of Collective
Action (Harvard 1965). [SNC]
164
See Robert Cooter and Thomas Ulen, Law and Economics 42 (Addison Wesley 3d
ed 2000) (defining “public goods”).
165
See Sandler, Global Challenges at 84-141 (cited in note 162) (surveying different
areas that suffer from international collective action problems).
166
See, for example, Daniel A. Farber and Philip P. Frickey, Law and Public Choice:
A Critical Introduction 23–24 (Chicago 1991) (discussing collective action problems);
Cooter and Ulen, Law and Economics at 42 (cited in note 164) (discussing public goods
and free riders).
167
See, for example, Kal Raustiala, The Architecture of International Cooperation:
Transgovernmental Networks and the Future of International Law, 43 Va J Intl L 1, 27
(2002) (discussing causes of the concentration of regulatory power); David P. Fidler, A
Globalized Theory of Public Health, 30 J L Med & Ethics 150, 156 (2002) (discussing
public health); Jonathan B. Weiner, Something Borrowed for Something Blue: Legal
Transplants and the Evolution of Global Environmental Law, 27 Ecol L Q 1295, 1298
(2001) (concluding that careful imports of other legal concepts into international law
“will be crucial to the future success of global environmental law”); Jonathan Baert
Weiner, On the Political Economy of Global Environmental Regulation, 87 Georgetown
L J 749, 763 (1999) (discussing the difficulty of unilateral regulation of a globalized
economy).
168
See, for example, Farber and Frickey, Public Choice at 23 (cited in note 166)
(illustrating the problem of collective action in the context of national security); Cooter
and Ulen, Law and Economics at 42 (cited in note 164) (using national defense as an
example of a public good).
169
Stability as used here can be defined as a lower probability of war or conflict. See,
e.g., Robert Powell, Stability and the Distribution of Power, 48 World Politics 239
(1996); Mearsheimer, Tragedy of Great Power Politics (cited in note ).
170
See Mancur Olson, Jr. and Richard Zeckhauser, An Economic Theory of Alliances,
48 Rev of Econ & Stats 266, 278 (1966) (describing NATO as a collective good).
171
See Joseph S. Nye, Jr., The American National Interest and Global Public Goods,
78 Intl Aff 233, 243 (2002).
172
Compare Olson and Zeckhauser, Alliances at 269 (cited in note 170) (illustrating a
defense expenditure equilibrium between two countries who place differing values on
security). Olson and Zeckhauser’s theory suggests that expenditures on defense will be
shared disproportionately even after accounting for differences in benefits. Id.
173
See, for example, Nye, 78 Intl Aff at 241 (cited in note 171).
174
Olson, Logic of Collective Action (cited in note ); Cooter, Strategic Constitution
(cited in note ).
175
The Russian ambassador to the United Nations, for example, argued that
[a]ttempts to justify the NATO strikes with arguments about preventing a
humanitarian catastrophe in Kosovo are completely untenable. Not only are these
attempts in no way based on the Charter or other generally recognized rules of

59
 international law, but the unilateral use of force will lead precisely to a situation with
truly devastating humanitarian consequences.
Franck, Recourse to Force at 167–68 (cited at note 4) (quoting Ambassador).
176
SC Res 1244, UN Doc S/Res/1244 at para 7 (June 10, 1999).
177
Franck, Recourse to Force at 54 (cited at note 4).
178
U.N. Security Council Resolution 1368, S/RES/1368 (Sept. 12, 2001).
179
U.N. Security Council Resolution 1483 (2003) (recognizing authority under
international law of occupation of United States and the United Kingdom); United
Nations Security Council Resolution 1500 (2003) (establishing United Nations
Assistance Mission for Iraq); United Nations Security Council Resolution 1511 (2003)
(recognizing authority of Iraqi Governing Council).
180
Determining the long-term effects for the region of the invasion of Iraq will prove
difficult in the near future. Some positive effects include the withdrawal of the large
American military presence in Saudi Arabia, an apparent reduction in tensions with Syria,
Libya’s recent decision to give up its weapons of mass destruction programs, and perhaps
Iran’s recent willingness to submit to international inspections of its nuclear activities.
Negative effects could include an increase in terrorist activities in Iraq and the region and
a flare up in the Israeli-Palestinian problems.
181
See Charles P. Kindleberger, The World in Depression, 1929-1939, at 11, 289
(Berkeley revd ed. 1986); Charles P. Kindleberger, Dominance and Leadership in the
International Economy: Exploitation, Public Goods, and Free Rides, 25 Int' l Stud. Q. 242
(1981); see also Robert Gilpin, War and Change in World Politics (Cambridge 1983).
182
See, e.g., Keohane, After Hegemony, 31-46 (cited in note ); Duncan Snidal, The
Limits of Hegemonic Stability Theory, 39 Intl Org 579 (1985).
183
See Pogge, 23 Phil & Pub Aff at 223 (cited in note 9) (suggesting that those in
developed nations do care about the victims of tragedy in developing countries); Amartya
Sen, Humanity and Citizenship, in Cohen, ed, For Love of Country 111, 117 (cited in
note 9) (suggesting that harming someone for whom one has affection is equivalent to
harming the person who holds that affection); Charles Jones, Patriotism, Morality, and
Global Justice, in Shapiro and Brilmayer, eds, Nomos XLI: Global Justice 125, 142
(NYU 1999) (suggesting that there is a “duty to concern [one]self with the safety and
rights of [] victims, even when those victims were noncompatriots”).
184
See, for example, Jules Lobel, The Limits of Constitutional Power: Conflicts
Between Foreign Policy and International Law, 71 Va L Rev 1071, 1075, 1179–80
(1985) (asserting that it is unconstitutional for the President and Congress to supercede
customary international law). See also Agora: May the President Violate Customary
International Law, 80 Am J Intl L 913–37 (1986), which includes the following articles:
Jonathan I. Charney, The Power of the Executive Branch of the United States
Government to Violate Customary International Law, 80 Am J Intl L 913, 921 (1986)
(suggesting that the President has the power to violate international law); Michael J.
Glennon, Can the President Do No Wrong?, 80 Am J Intl L 923, 923 (1986) (suggesting
violations require Congressional approval); Louis Henkin, The President and
International Law, 80 Am J Intl L 930, 936 (1986) (“The President cannot disregard
international law.”).

60
 185
See, e.g., Oona Hathaway, Do Human Rights Treaties Make a Difference?, 111
Yale LJ 1935 (2002); Andrew Guzman, A Compliance Based Theory of International
Law, 90 Cal L Rev 1823, 1846 (2002); Goldsmith & Posner, A Theory of Customary
International Law, 66 U Chi L Rev 1113 (1999); Abram Chayes & Antonia Handler
Chayes, The New Sovereignty: Compliance with International Regulatory Agreements
(Harvard 1995).
186
See, e.g., Andrew Guzman, A Compliance Based Theory of International Law, 90
Cal L Rev 1823, 1846 (2002); Robert O. Keohane, International Relations and
International Law: Two Optics, 38 Harv J Int’l L 487, 496-99 (1997).
187
Jack L. Goldsmith, The Self-Defeating International Criminal Court, 70 U Chi L
Rev 89, 91 (2003) (noting that the ICC will have “decisionmaking power over many of
the same peace and security issues typically governed by the Security Council alone”).
188
Madeline Morris, High Crimes and Misconceptions: The ICC and Non-Party
States, 64 L & Contemp Probs 13, 21 (2001) (quotation mark omitted).

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