Illegal War, or Legal Capture?

In the wake of September 11, many people are asking about alternatives to the use of military force, the legality of the United States employing military force and what can and should be done under international law. Here are some principles that should guide the United States, and some concrete actions the U.S. can and should take that are short of using force.

We will not here describe in detail the policy reasons as to why the use of military force is inadvisable. Others have addressed this issue at length. Suffice it to say that military force 1) kills civilians; 2) has the potential to destabilize countries such as Pakistan; 3) widens the divide between the United States and Islamic nations; 4) sews the seeds of future terrorism; and 5) will not make us or anyone in the world safer.

We also understand that the proposal set forth below does not address crimes committed by the United States government and some, therefore, might see it as one-sided. As lawyers who have spent our professional lives trying to make the U.S. accountable for its crimes, we will continue to do so. However, we believe that at this point it is crucial to prevent a unilateral and disproportionate response by the United States. Reliance upon the U.N. has the potential to do that; it will also provide a forum for the trials of those suspected of terrorism and crimes against humanity.

We recognize that our suggestions are not long-term solutions. Those will only come when the government of the United States and others recognize that they must change their polices and make a more just world.

Key Principles

1. The U.N. Charter prohibits the use of force except in matters of self-defense. Article 2(4) and Article 51.

A country is not permitted to use military force for purposes of retaliation, vengeance or punishment. In other words, unless a future attack on the United States is imminent, it cannot use military force. This means that even if the United States furnishes evidence as to the authors of the September 11 attack, it cannot use military force against them. To this extent the congressional resolution authorizing the President to use force against the perpetrators of the attack on September 11 is a violation of international law. Instead, the U.S. must employ other means, including extradition and resolutions of the Security Council, which could eventually authorize the use of force to effectuate the arrest of suspects.

The United States will argue that the attack on September 11 was an armed attack on the United States and that it has the right to use self-defense against that attack. Even though the attack is over, it presumably would claim that those who initiated the attack were responsible for prior attacks and are planning such attacks in the future. At the same time, President Bush has stated that the "war" on terrorism would be lengthy, implying that it would go on for years.

In order to rely on this self-defense claim the U.S. would need to present evidence to the Security Council not only as to the perpetrators of the September 11 attack, but evidence that future attacks are planned and imminent. They have not yet done so. Even if the U.S. can put forth a legitimate self-defense claim, it is still to the U.N. Security Council where they ought to turn. Even in cases of self-defense, and particularly when there is sufficient time -- two weeks have passed since the attack and President Bush says we are in for a "lengthy" battle -- turning to the Security Council may be required. It is certainly better policy and more in keeping with the U.N. Charter to do so.

2. The U.N. Security Council has the authority and the responsibility at all times "to take any actions as it deems necessary in order to restore international peace and security." Article 51.