1 Glennon, Michael J., Limits of Law, Prerogatives of Power: Interventionism After Kosovo (2001)CrossRefGoogle Scholar. Mr. Glennon is a professor of international law at the Fletcher School of Law and Diplomacy of Tufts University.

2 In the conventional view, Charter Articles 2(4) and 51, together with the entirety of Chapter VII (Articles 39–51), divide the universe of force into three parts: force authorized by the Security Council under Chapter VII as a means of terminating a threat to the peace, breach of the peace, or act of aggression; force employed in self-defense against an armed attack; and aggression.

3 Franck, Thomas M. & Weisband, Edward, Word Politics: Verbal Strategy Among the Super Powers (1971)Google Scholar.

4 However, Iraq’s invasion of Iran in 1980 is a case where general condemnation did not occur. Its absence testifies, perhaps, to the political power of a coalition consisting of Arab states, which feared a revolutionary regime in Iran that aspired to region wide influence, and the United States, which also feared the potentially destabilizing power of the Iranian clerical revolutionaries and hated them for humiliating America during the hostage crisis. International reaction (that is, the lack thereof) may also be attributable in part to the sense that the new Iranian regime was itself indifferent to international norms (see its violation of diplomatic immunity during the hostage crisis), and in part to the long-contested nature of the territory Iraq hoped to seize and its cession to Iranian control by Iraq a few years previously and only under Iranian military pressure.

5 The international community’s response to Israel’s invasion of Lebanon in 1982 and long-term occupation of southern Lebanon thereafter may seem aberrational. If it was less vigorous and a bit less uniform, that is explicable in terms of American power and determination to insulate Israel from sanctions of any kind under all circumstances, European guilt, and the atmosphere of conditional cease-fire rather than peace that enveloped the region. Moreover, regional states did facilitate the efforts of indigenous actors to bleed the occupier (as states facilitated the bleeding of Soviet forces in Afghanistan), efforts that doubtless contributed to Israel’s decision finally to withdraw. India survived its 1971 invasion of what was then East Pakistan without serious sanctions. In one respect it was similar to Vietnam’s subsequent invasion of Cambodia: in both cases the target regime was committing horrendous violations of basic human rights. But in two others, the precedents differed. East Pakistan was waging a self-determination struggle against an ethnically distinct regime based in a geographically separate piece of the country and acting as if it were an occupying power rather than the government of both parts of the country. An active East Pakistani resistance welcomed Indian intervention. Most important, India, unlike Vietnam, quickly withdrew and East Pakistan quickly emerged as a de facto independent state with a genuinely independent government. In Cambodia, the Vietnamese imposed a regime that had all the attributes of a puppet and required the presence of large Vietnamese forces in order to survive.

6 See, e.g., Brown, Davis, Use of Force Against Terrorism After September 11th: State Responsibility, Self-Defense and Other Responses, 11 Cardozo J. Int’l & Comp. L. 1 (2003)Google Scholar (noting that in post-Charter international law, reprisals are prohibited but have continued to be carried out under other names, such as self-defense); see also Note, Terror and the Law: The Unilateral Use of Force and the June 1993 Bombing of Baghdad, 5 Duke J. Comp. & Int’l L. 457 (1995) (arguing that the practice of states and the writings of publicists now make it possible to claim in good faith that reprisals are legitimate in some circumstances).

7 The Security Council imposed sanctions on Southern Rhodesia when Ian Smith’s white-minority government unilaterally declared its independence from the United Kingdom in 1965, thwarting Southern Rhodesia’s steps toward self-determination. SC Res. 232, UN SCOR, 21st Sess., Res. & Dec, at 7, UN Doc. S/INF/21/Rev.l (1966).

8 As Sean Murphy has argued, such a procedure provides important safeguards against the invocation of humanitarian purposes to mask a campaign directed at no higher purpose than aggrandizing national power and wealth. Sean D. Murphy, Calibrating Global Expectations Regarding Humanitarian Intervention at 5 (paper presented at Harvard University conference on Kosovo, January 18–19, 2001).

9 A force organized by the Economic Organization of West African States (ECOWAS) first intervened in Liberia in 1990.

10 See Quigley, John, Slate Responsibility for Ethnic Cleansing, 32 U.C. Davis L. Rev. 341, 384 (1999)Google Scholar. NATO took the position that it could intervene in Kosovo on the basis of the Security Council’s resolution invoking Chapter VII. SC Res. 1199 (Sept. 23,1998), 38ILM 249 (1999). Other UN members, including Russia, disagreed and threatened to veto any draft resolution in the Council that might call for military action against Yugoslavia.

11 UN SCOR, 54th Sess., 3989th mtg. at 3, 5, UN Doc. S/PV.3989 (1999). Russia, China, and Namibia were the three members that voted for the resolution. The twelve members voting against the resolution were Argentina, Bahrain, Brazil, Canada, France, Gabon, Gambia, Malaysia, the Netherlands, Slovenia, the United Kingdom, and the United States.

12 SC Res. 1244 (June 10, 1999), 38 ILM 1451 (1999).

13 The respected Independent International Commission on Kosovo, established after the fact by the government of Sweden, invoked virtually all these contextual features to support its conclusion that the intervention was not compatible with Charter norms but still “legitimate,” by which it appeared to mean what I have proposed; namely, that taking all the circumstances into account, the precedent was too constricted to threaten the Charter and expressed the movement of opinion in favor of international action to prevent gross and sustained violations of basic human rights. Independent International Commission on Kosovo, Kosovo Report: Conflict, International Response, Lessons Learned (2001).

14 See, e.g., Butler, Richard, The Greatest Threat: IRAQ, Weapons of Mass Destruction, and the Crisis of Global Security 91, 220–21 (2001)Google Scholar (describing Russian, French, and Chinese support for ending sanctions against Iraq, despite the lack of Iraqi compliance with the UN weapons inspection regime, and thus indicating that these three permanent members would oppose an invasion of Iraq).

In his National Security Strategy, President Bush promised to “disrupt and destroy terrorist organizations” by

The National Security Strategy of the United States of America 6 (Sept. 17, 2002), available at <http://www.whitehouse.gov/nsc/nss.pdf>.

15 Bush administration officials said they were “willing to work within the framework of the United Nations, but that they reserve the option to act unilaterally or through selective coalitions, if necessary, to protect vital American interests.” Tyler, Patrick E., U.S. Strategy Plan Calls for Insuring No Rivals Develop, N.Y. Times, Mar. 8, 1992, §1, at 1 Google Scholar.

16 Prior to taking office, Bush was asked by Larry King, “What area of international policy would you change immediately?” Bush’s response was, “Our relationship with China. The President has called the relationship with China a strategic partnership. I believe our relationship needs to be redefined as competitor.” Larry King Live (CNN television broadcast, Feb. 15, 2000).

17 According to the Center for Defense Information:

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  • Russia, which has the second largest military budget in the world, will spend less than one-sixth what the United States will, assuming its economy can afford it. China, which has the third largest military budget, recently announced that it would increase its military spending by almost 18 percent. (The largest part of the increase reportedly is for personnel costs.) Yet the United States still spends more than eight times what China spends.

• •

  • The U.S. military budget is 23 times as large as the combined spending of the seven countries traditionally identified by the Pentagon as our most likely adversaries—Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria—which together spend just over $14 billion annually.

• •

  • The United States and its close allies—the NATO nations, South Korea, and Japan—spend more than the rest of the world combined, accounting for roughly two-thirds of all military spending. Together they spend more than 38 times that of the seven rogue states.

Hellman, Christopher, Fiscal Year 2002 Budget Request, CDI Def. Monitor, Aug. 2001, at 1, 4, available at <http://www.cdi.org/dm/2001/default.html>Google Scholar.

18 The author was present at this not-for-attribution meeting.