whereby a state using force in self-defense must show its “necessity . . . [as] instant,
overwhelming, and leaving no choice of means, and no moment for deliberation,”
even subsequent revision of this criteria in response to the threat of weapons of mass
destruction, nonetheless leave a threatened state like the United States without much
room to respond defensively (preemptively) to terrorism. The US actions indicate that a
country will be compelled to take matters into its own hands if permission by the
international community is not forthcoming, i.e., if the Security Council is not willing to
bend the rules and accommodate unfamiliar forms of warfare in response to
unprecedented threats. In the war against terror, what does such a state have to lose by
bending the rules in order to fight this all-important enemy? Yet, we do not yet know if
the rules are shifting, leading us to a second point related to the status of collective
security and the laws of war.
Status of Law: Another issue regards the question of whether, given the (non)responses
of the states to US behavior, there is as firm a body of rules and norms as claimed by
scholars and practitioners who oppose on legal grounds US actions. If collective security
falls short of war on terror defense needs, then it might follow that other rules developed
to support reciprocal rights and duties will also be deemed deficient. What, in other
words, are the changing contemporary expectations when it comes to the use of force and
related humanitarian considerations?
The answer began to emerge from the relative tolerance by states of the US
invasion of Afghanistan and the absence of meaningful protest following the US action in
Iraq, combined with the vociferous international support of the broad goal of “fighting
terrorism mercilessly.”
The lines in the sand drawn by the Charter and other positive
law such as the Geneva Conventions become blurred, reflecting a possible (de)evolving
understanding and commitments by states, and not just the United States.
Looking back on the Security Council debates over Afghanistan, Iraq, and
terrorism generally, there does not appear to be a strong consensus regarding use of force
13
Steven Ratner, “Jus ad Bellum and Jus in Bello After September 11” 96 A.J.I.L. (October 2002).
14
Mr. Dominique de Villepin, Minister for Foreign Affairs of France, expressing his country’s disapproval
of impending US Action in Iraq, nonetheless emphasized allegiance with the broader US position: “We all
share the same priority: fighting terrorism mercilessly. That fight requires total determination; since the
tragedy of 11 September 2001, it has been one of the main responsibilities of our peoples. And France,
which has been struck hard several times by that terrible scourge, is wholly mobilized in this struggle.”
Records of the UN Security Council (14 February 2003), emphasis added.
10
Convention