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. Last Updated: 07/27/2016

Fighting by the Rules




By what authority did the United States use force recently in Afghanistan and Sudan? Is it simply up to each nation to decide when to launch an attack upon a perceived enemy located within the sovereign territory of another country? Or do rules exist to govern such decisions, by which the conduct of states may be judged if not controlled?


In theory, states aren't free to use force as they wish. The rules of the United Nations Charter bind them "to refrain from the threat or use of force against the territorial integrity orpolitical independence of any state." The charter was intended to overturn the notion that force could be used as an extension of diplomacy to advance a nation's interests. Force may still be used in self-defense.


The charter expressly provides that "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."


The United States has defended its use of force in Afghanistan and Sudan as consistent with these rules. But the U.S. interpretation of the rules differs from that of the International Court of Justice and most other states, and its unilateral uses of force have provoked frustration, because it is able to disregard views that contradict its position.


The United States did not use force in Afghanistan and Sudan to gain control over foreign territory or policies f only to defend its nationals and interests from terrorists. Nor did it threaten these countries' political independence f only their authority to allow terrorist groups on their lands to prepare attacks on U.S. interests with impunity.


The United States has consistently claimed that its basis for using force in these cases is its "inherent" right of self-defense. But international lawyers have read into the charter's recognition of this "inherent" power numerous "limitations," of which the most important for present purposes are: self-defense may only be exercised after an "armed attack" occurs; on the territory of a member; and undertaken by forces operating under the control of the state in the territory of which the armed response is undertaken. These limitations, which have no support in the pre-charter law of self-defense, would render the United States incapable of responding to the most realistic military threats it faces.


The United States therefore has consistently rejected these limiting concepts, claiming that:


?Self-defense allows a proportionate response to every use of force, not just "armed attacks";


?Armed attacks permitting self-defense can occur anywhere, not just on U.S. territory;


?Attacks need not be by regular or even irregular forces of the state in which military action is taken, because defensive measures may be taken in any state that cannot or will not prevent anyone in its territory from attacking the United States;


?Defensive measures may be taken to pre-empt attacks, as in Sudan, where necessary for deterrence.


Under these standards, U.S. President Bill Clinton's administration acted lawfully in attacking terrorist camps in Afghanistan, because the legal and de facto governments there are unable or unwilling to control Osama bin Laden's terrorist group responsible for attacks on U.S. embassies in Kenya and Tanzania, which has promised further attacks.


With regard to Sudan, the Clinton team claims the factory it bombed made a chemical to be supplied to bin Laden for use in weapons directed against U.S. targets. That no chemical-weapon attack has yet occurred is not itself proof of illegality, and, given Sudan's support of terrorist groups, it is reasonable to conclude that it was unwilling or unable to discharge its international responsibility to prevent the chemical from being produced. Furthermore, the action was carefully limited to the destruction of the specific building in which the chemical involved was purportedly made, and therefore a reasonable measure for deterring potentially catastrophic attacks on U.S. targets.


Washington acted on these standards, knowing it has the power as a permanent member of the Security Council to block adoption of any measure aimed at forcing it to abide by any standard whatever, or even the enforcement of any decision of the international court that concludes the United States has behaved illegally or attempts to impose any sanction on the United States concerning its use offorce. This power is an essential element of the security system to which the United States and all other nations agreed in the charter, and the country is perfectly justified in relying on its rights.


The United States must care, however, about the views of other states, especially with regard to the validity of U.S. claims. It has a substantial interest in enforcing the charter against states that use force aggressively, such as Iraq. It remains disturbing, therefore, that the defense secretary announced (on the basis of erroneous intelligence) that the factory in Sudan did not make pharmaceuticals, and that the Clinton administration has been unwilling to participate in a thorough evaluation of its factual premises concerning the plant.


The United States has properly refused to surrender any aspect of its inherent right of self-defense to those who would deny the capacity its power confers or who regard even defensive force as evil. This posture demands that Washington accept the consequences when it errs. If the bombing in Sudan was wrong, or if the nation is unprepared to disclose the evidence that supports its conduct, the United States must accept responsibility or otherwise deprive itself of the right to rely on the charter in attempting to control illegal uses of force by other states.


Abraham Sofaer is a former federal judge and U.S. State Department adviser and a fellow of the Hoover Institution on War, Revolution and Peace at Stanford University. He contributed this comment to Newsday.