Presidential Foreign Policy: An Opportunity for International Law Education
Blank, Laurie R., Case Western Reserve Journal of International Law
This essay explores an interesting opportunity for the president in the foreign policy arena: the role of educator on international law and its central principles, for both the president and his surrogates in the executive branch. In the current environment in which the United States is engaged in extensive, wide-ranging, and challenging military operations against diverse foes, this educational role has significant potential in the arena of the law of armed conflict specifically. With reference to historical and current examples of how presidents have used--or not used--international law as an effective communication medium, this essay highlights how the president can communicate effective messages with regard to international law, and the law of armed conflict in particular, to the public through a much more focused and proactive view of the president as an educator in this area.
On August 2, 1990, Saddam Hussein's Iraq invaded Kuwait, its tiny neighbor to the southeast. Under the leadership of President George H.W. Bush, the United States marshaled a multinational coalition, secured UN authorization for the use of force, and launched military operations to push Iraqi forces out of Kuwait and liberate Kuwait. (1) On the eve of Operation Desert Storm, the military operations launched on January 16, 1991, President Bush spoke to the nation, explaining the background to and purpose of Operation Desert Storm. (2) In so doing, he set forth a comprehensive and effective description of jus ad bellum and the U.S. justification for using force against Iraq in that instance.
Jus ad bellum is the Latin term for the law governing the resort to force, that is, when a state may use force within the constraints of the UN Charter framework and traditional legal principles. (3) The UN Charter prohibits the use of force by one state against another in Article 2(4): "All members shall refrain in their international relations 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." (4) International law provides for three exceptions to this prohibition on the use of force: consent, UN Security Council authorization for a multinational operation, and self-defense. The last of these exceptions formed the foundation for US action in the Persian Gulf in 1991.
Under Article 51 and the historical right of self-defense, a state can use force in individual or collective self-defense in response to an armed attack as long as the force used is necessary and proportionate to the goal of repelling the attack or ending the grievance. (5) Thus, the law focuses on whether the defensive act is appropriate in relation to the ends sought. The requirement of proportionality in jus ad bellum measures the extent of the use of force against the overall military goals, such as fending off an attack or subordinating the enemy. The requirement of necessity addresses whether there are adequate non-forceful options to deter or defeat the attack. To this end, "acts done in self-defense must not exceed in manner or aim the necessity provoking them." (6)
In his January 16th speech, President Bush addressed each of these components of jus ad bellum in turn, essentially providing the American people with a primer for the international law governing the use of force. First, President Bush identified the armed attack--the trigger for any use of force in self-defense: "the dictator of Iraq invaded a small and helpless neighbor. Kuwait ... was crushed; its people, brutalized." (7) Second, President Bush introduced the collective action to defend Kuwait against that armed attack: "the 28 countries with forces in the Gulf area hav[ing] exhausted all reasonable efforts to reach a peaceful resolution--have no choice but to drive Saddam from Kuwait by force." (8) Third, President Bush showed that the United States was in compliance with the principle of necessity: "[s]anctions were tried for well over 5 months, and we and our allies concluded that sanctions alone would not force Saddam from Kuwait," and "[r]egrettably, we now believe that only force will make him leave. …