Colin Powell and the Law of War
Colin Powell and the debate about a possible war with Iraq have taken on a legalistic tone which is rather astonishing in the context of history. In the past, wars were fought to secure trading concessions, convert the heathen, punish the infidel, conquer territory, avenge perceived slights, or satisfy the whims of the sovereign. According to Theodore Roosevelt’s biographer, Germany considered going to war against the United States so that it could occupy Venezuela and ensure debt repayment. Throughout most of history, nation-states have declared war and then sent in the troops.
After World War I, most wars were started simply by sending in the troops, with the declaration of war coming after the soldiers arrived (if such a declaration was made at all). When the Germans were invading Russia during the Second World War, they actually waited for Russian trains full of coal and other products to pass before crossing the border.
Although international lawyers and countries have attempted for centuries to place legal limits on behavior in war, the attempt to extend legal restraints to the actual declaration of war is relatively recent. The declaration of war is such a fundamental element of sovereignty for nation-states that few attempts have been made to limit it (Section 51 of the United Nations Charter being one of them).
Given this historical record of freedom of action, I have found it very strange to see the Secretary of State discussing issues of "proof" and "material violations." It has an undeniably legalistic ring to it, like some bizarre trial. What is proof? How much proof is enough? More significantly, who is the judge? The Security Council? Or perhaps only its veto-bearing members? Or even a select group of allies? And, most importantly, what is the legal remedy if Colin Powell does not "win" his case?
The problem with the United Nations Charter limitations is that the Security Council has a poor record of reacting effectively to the use of force by countries. The Security Council’s ineffectiveness in resolving the Arab-Israeli conflict and the Yugoslav disputes has been very visible. The question, then, is what to do when the agency charged with solving these problems, the Security Council, has proved so ineffective: is self help appropriate (again that legal turn of phrase)? If so, what are the limits of such self help? Is "pre-emptive" war an appropriate expression of such "self help"? What are the limits of "self help"?
These questions are fundamental ones, but in the end more political than legal. While few would choose to return to the old days when nation-states had unconstrained freedom to declare war, we continue to search for the proper limits in a world where the United Nations has not proven equal to the task.