American Exceptionalism and the International Law of Self-Defense
O'Connell, Mary Ellen, Denver Journal of International Law and Policy
Following the September 11th attacks in the United States (U.S.), one could make a case for America's use of force in Afghanistan as a lawful exercise of the right of self-defense. (1) But the proposals to invade Iraq following September 11th cannot be so defended. Those proposals did not concern defending the basic security of the U.S. in the sense that basic security defense is currently understood in the international community. They concerned, rather, defense of a more expansive concept of security, a concept wherein the U.S. need not tolerate antagonistic regimes with the potential to harm U.S. interests. The invasion plans represent a view that the United States is a privileged nation with more rights than others. (2) Under this view, the United States may invade Iraq and remove Iraq's leader, Saddam Hussein, because he poses an indefinite future threat, the type of threat a superpower need not live with, though all other states must.
The belief in American exceptionalism has been part of American thinking since the country's founding. (3) Officials in the Reagan Administration, especially Jeanne Kirkpatrick and Allan Gerson, applied this thinking to international law rules on the use of force. (4) The belief also appears in the Clinton Administration policies of Madeleine Albright and William Cohen regarding the North Atlantic Treaty Organization (NATO) and its right to use force without United Nations (U.N.) Security Council authorization. (5) American exceptionalism is fully evident on the part of those who proposed invading Iraq in the aftermath of September 11th, especially Paul Wolfowitz and Richard Cheney. The position taken by other governments--that an invasion of Iraq without Security Council authorization would be an act of aggression--has not been answered by the Bush Administration. (6) A justification under law was not part of the Administration's public position when it began discussing an invasion. (7)
This is one of the rare occasions since the adoption of the U.N. Charter that the United States has been so disinterested in international law as to not provide an explanation as to how a major use of armed force would comply with the law. Another time was in 1999 in respect to the bombing of Yugoslavia. (8) The significance of this is not that the United States has always acted consistently with international law and now suddenly it is not. The United States has plainly violated international law on the use of force in the past. The difference is that now the prevailing view sees no need to offer explanations. The United States need not show how it has acted consistently with the principles of the community. The United States is above the law. That is a significant departure from the past that may well have serious negative consequences for future legal restraints on the use of force.
This paper is about the current and future law of self-defense. It applies the law to Operation Enduring Freedom in Afghanistan and to a proposed invasion of Iraq in light of the circumstances prevailing in Spring 2002. The analysis shows that while Enduring Freedom was arguably lawful, an invasion of Iraq would indeed be an act of aggression. The discussion then turns to the impact an invasion, or even the planning for an invasion, would have on the legal regime for restraining force. Because international law's structure is based on the members' equality under the law, (9) treating the United States exceptionally in a matter as grave as an unlawful invasion will have serious consequences for the future legal regime for restraining the use of force. The thesis of this paper is not necessarily to defend the old order. The aim is a more modest one: pointing out how that order is changing.
I. THE LAW OF SELF-DEFENSE
International law generally prohibits the use of force except in self-defense or with the authorization of the U.N. Security Council. (10) The right of self-defense allows the use of an armed force against an armed attacker when that force can prevent future attacks and is proportional to the threat. …