On August 2,1990, Iraqi forces invaded and occupied Kuwait, beginning a seven-monthlong series of events that would come to be known as the Persian Gulf war. Perhaps the most thoroughly examined of these events was the thirty-eight-day air campaign, which began on January 17,1991, and marked the beginning of the offensive by the coalition of states arrayed against Iraq, which ended after the latter’s withdrawal from Kuwait. Much has been written about the air campaign and its objectives, its implications for the future use of military force, and the extent to which it conformed to international law. Although this article will focus on the last of these topics, a contextual understanding of the air campaign is essential to a serious consideration of the military necessity and proportionality issues that lie at the heart of the legal analysis.

The rapid ratification of the Rome Statute of the International Criminal Court (ICC) and the orderly election of its judges and prosecutor belie the radical nature of the new institution. The Court has jurisdiction over genocide, aggression, crimes against humanity, and war crimes—crimes of the utmost seriousness often committed by governments themselves, or with their tacit approval. The ICC has the formal authority to adjudge the actions of high state officials as criminal and to send them to jail, no matter how lofty the accused’s position or undisputed the legality of those acts under domestic law. While the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) also possess this authority, those institutions operate directly under the control of the United Nations Security Council and within narrow territorial limits. The ICC, by contrast, is largely independent of the Council and vests the power to investigate and prosecute the politically sensitive crimes within its broad territorial sweep in a single individual, its independent prosecutor.

Preemption comes in many forms and what we think of it depends on the circumstances. One state may not strike another merely because the second might someday develop an ability and desire to attack it. Yet few would criticize a strike in the midst of an ongoing war against a second state’s program to develop new types of weapons. Between these two examples lie countless fact patterns.

In the end, each use offeree must find legitimacy in the facts and circumstances that the state believes have made it necessary. Each should be judged not on abstract concepts, but on the particular events that gave rise to it. While nations must not use preemption as a pretext for aggression, to be for or against preemption in the abstract is a mistake. The use of force preemptively is sometimes lawful and sometimes not.

In his speech before the United Nations (UN) in September 2002, President George W. Bush characterized the possible use of force against Iraq as necessary to enforce existing Security Council resolutions and to eliminate a dangerous threat to international peace and security. The Security Council responded by adopting Resolution 1441, which found Iraq to be in material breach of previous Security Council resolutions and threatened serious consequences for further intransigence. When Iraq refused to fully comply with these resolutions, the United States led an ad hoc “coalition of the willing” that invaded Iraq on March 19,2003, quickly defeated Iraq’s armed forces, and ended the regime of Saddam Hussein and the Ba’ath party. On May 1,2003, President Bush announced that major combat operations in Iraq had ended. At the time of this writing, the United States has assumed the position of an occupying power that is responsible for rebuilding Iraq, as recognized by the Security Council in Resolution 1483.

At long last, the people of Iraq are freed from the brutality of Saddam Hussein. The swift success of the coalition’s military campaign has been followed by predictable difficulties in organizing a hew government, restoring an economy, rebuilding civic society, and quelling violence from remnants of the old regime. But these challenges are kept in scale by recalling a dictator who murdered three hundred thousand fellow citizens. Saddam chose weapons of mass destruction as the central symbol of his domestic and international swagger—using the same internal security apparatus to parry United Nations inspectors and to extinguish domestic political dissent. Removing Iraq’s Ba’athist regime has ended a looming danger to regional neighbors, including Kuwait and Saudi Arabia. The crucial hopes for Middle East peace may also be enhanced by the change. And a new government in Baghdad lessens the chance that weapons matériel will be transferred to ill-intentioned nonstate actors.

Relations between the United States and most other countries, including major U.S. allies, have been severely strained during the past year by divergent opinions about the rules of international law governing the use of armed force. On the one side, the Bush administration has unveiled a new strategic doctrine asserting the right to use force preemptively against any country or terrorist group that could potentially threaten U.S. security. On the other side, most UN members have rejected the Bush doctrine as inconsistent with the traditional view that armed force can only be used when authorized by the Security Council or in self-defense against an armed attack. I will argue that neither the new Bush doctrine nor the strict interpretation of the “jurisprudes” represents good law or good policy. The new strategic environment, marked by suicidal terrorists and the spread of mass destruction weapons, requires a different approach.

President George W. Bush historically challenged the United Nations Security Council when he uttered some memorable words in the course of his September 12, 2002, speech to the General Assembly: “Will the UN serve the purpose of its founding, or will it be irrelevant?” In the aftermath of the Iraq war there are at least two answers to this question. The answer of the U.S. government would be to suggest that the United Nations turned out to be irrelevant due to its failure to endorse recourse to war against the Iraq of Saddam Hussein. The answer of those who opposed the war is that the UN Security Council served the purpose of its founding by its refusal to endorse recourse to a war that could not be persuasively reconciled with the UN Charter and international law. This difference of assessment is not just factual, whether Iraq was a threat and whether the inspection process was succeeding at a reasonable pace; it was also conceptual, even jurisprudential. The resolution of this latter debate is likely to shape the future role of the United Nations, as well as influence the attitude of the most powerful sovereign state as to the relationship between international law generally and the use of force as an instrument of foreign policy.

The United States articulated a new concept of preventive self-defense last fall that is designed to preclude emerging threats from endangering the country. Rising like a phoenix from the ashes of the September 11 terrorist attacks, the preventive approach to national security is intended to respond to new threats posed by “shadowy networks of individuals [who] can bring great chaos and suffering to our shores for less than it costs to purchase a single tank.” The Bush administration wisely concluded that it could not rely solely upon a reactive security posture, due to the difficulty in deterring potential attacks by those determined to challenge the United States and the magnitude of harm that could occur from weapons of mass destruction falling into the wrong hands. Although the administration has characterized its new approach as “preemptive,” it is more accurate to describe it as “preventive” self-defense. Rather than trying to preempt specific, imminent tiireats, the goal is to prevent more generalized threats from materializing.

Thirty-three years ago I published an article in this Journal entitled Who Killed Article 2 (4)? or: Changing Norms Governing the Use of Force by States, which examined the phenomenon of increasingly frequent resort to unlawful force by Britain, France, India, North Korea, the Soviet Union, and the United States. The essay concluded with this sad observation:

The failure of the U.N. Charter's normative system is tantamount to the inability of any rule, such as that set out in Article 2(4), in itself to have much control over the behavior of states. National self-interest, particularly the national self-interest of the super- Powers, has usually won out over treaty obligations. This is particularly characteristic of this age of pragmatic power politics. It is as if international law, always something of a cultural myth, has been demythologized. It seems this is not an age when men act by principles simply because that is what gentlemen ought to do. But living by power alone ... is a nerve-wracking and costly business.

International lawyers should help our political leaders, die media, and the electorate appreciate more adequately the implications for international law and order of the United States-led invasion of Iraq and its nearest precedent, the Kosovo intervention. At this point, mid-2003, those implications remain unclear.

What impact will the Iraq war of 2003 have on international law governing the use of force and on the future of the United Nations Security Council? Some commentators have proclaimed that the military intervention led by the United States amounted to the “death” of the UN Charter and the end of “the grand attempt to subject the use of force to the rule of law.” The Security Council’s failure to reach agreement—in die face of French-U.S. antagonisms—spells the end, they argue, of an effective Council role in addressing major threats to peace and security. My own view is that it is premature to pronounce the “death” of the UN Charter or to give up on future prospects for Security Council agreement on the use of force. We are, nevertheless, at a difficult and precarious transitional moment in the international legal system governing the use of force, and the stark tensions reflected in the differences over Iraq are symptomatic of hard problems that may persist for the foreseeable future. Both the rules and the system need refining and reform. Success in doing so will require imagination and much greater willingness by policy makers to consider law’s potential role, not as a barrier to necessary action, but as a means to enhance global security in the face of emerging threats. In seeking such reform, it will be important to build upon the realism of the Charter’s founders, who combined rules governing the use of force with a clear commitment to credible enforcement action in response to threats to peace and security.

Goodwin v. United Kingdom. App. No. 28957/95. At <http://www.echr.coe.int/Eng/Judgments.htm>.

European Court of Human Rights, Grand Chamber, July 11, 2002.

I. v. United Kingdom. App. No. 25680/94. At <http://www.echr.coe.int/Eng/Judgments.htm>. European Court of Human Rights, Grand Chamber, July 11, 2002.

Under English law, people may change their names and use those new names for official purposes. At the same time, specified biological criteria determine the sex of individuals under the law for various purposes, including marriage and retirement pensions. In Goodwin v. United Kingdom and I. v. United Kingdom, the question presented was whether such biological criteria impermissibly operate to the prejudice of postoperative transsexuals. The grand chamber of the European Court of Human Rights unanimously concluded that the practice of restricting gender in national law to the one registered at birth infringed both the right to respect for private life and the right to marry, contrary to the guarantees of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Podkolzinav. Latvia. App. No. 46726/99. At <http://www.echr.coe.int/Eng/Judgments.htm>. European Court of Human Rights, April 9, 2002.

In Podkolzina v. Latvia, the European Court of Human Rights held that Latvia violated the applicant's right to stand as a candidate for parliamentary elections, as set out in Article 3 of Protocol No. I to the European Convention on Human Rights in striking the applicant off the list of registered candidates due to allegedly inadequate language skills. The Court ordered Latvia to pay 9,000 for nonpecuniary damages and for costs and expenses.

The applicant, a member of the Russian-speaking minority in Latvia, acquired an official language certificate in January 1997. The certificate was issued by a regional board of the State Language Centre, composed of five examiners. On the basis of written and oral examinations that were evaluated in accordance with criteria and levels of competence defined by legal regulations, the five-member board certified that Podkolzina's command of the Latvian language corresponded to the “third level.”

Republic of South Africa v. Grootboom. Case No. CCT 11/00. 2000 (11) BCLR 1169. Constitutional Court of South Africa, October 4, 2000.

Minister of Health v. Treatment Action Campaign. Case No. CCT 8/02. At <http://www.concourt.gov.za>.

Constitutional Court of South Africa, July 5, 2002.

Two cases decided by the Constitutional Court of South Africa in 2000 and 2002 implement several economic, social, and cultural rights guaranteed by the Constitution of South Africa. The decisions illuminate the role in such reasoning of human rights treaties to which South Africa is a state party or a signatory. They also analyze General Comment No. 3 of die UN Committee on Economic, Social and Cultural Rights (Committee). These cases, Republic of South Africa v. Grootboom, decided October 4,2000, and Minister of Health v. Treatment Action Campaign, decided July 5, 2002, illuminate questions concerning both die jusdciability of economic, social, and cultural rights—at least as incorporated into Soudi Africa's Bill of Rights, sections 7 through 39 of its Constitution—and the concept of “minimum core obligations” as developed by the Committee.