Avoiding
War: Using International Law to Compel a Problem-Solving
Approach
by
Brian J. Foley (1)
Necessity has been called "the mother of invention."
Although the precise relationship between these concepts
may be open to debate, they are certainly closely related
in international law: The requirement that force may be
used only when necessary should compel a search for
alternatives to force and violence. After September 11,
however, no such search occurred. There were and are
alternatives to the U.S. war against Afghanistan, but the
U.S. and the UN failed to work together to find any. As
such, the war against Afghanistan is illegitimate under
international law. (2)
This short paper argues that the search for
alternatives to violence in international responses to
terrorism is not merely an idealistic whim: it is a legal
requirement. This paper thus also argues that U.S. and UN
Security Council should have worked together to seek, and
try, alternatives to force and violence. More generally,
this paper encourages a broader search for alternatives,
with broader participation, by the UN, individual
nations, NGOs, human rights experts, scholars and
lawyers. Finally, it speculates that changes in
international law may help to ensure that this search is
carried out. Because war is often the greatest human
rights violation of all -- and triggers further
violations -- seeking and investigating reasonable
alternatives to war may be the most profound protection
of all for human rights.
THE REQUIREMENT OF "NECESSITY" IN INTERNATIONAL LAW
CONCERNING USE OF FORCE ("JUS AD BELLUM")
The UN Charter provides a sweeping prohibition against
the use of force, commanding in Article 2(4) that, "All
Members shall refrain in their international relations
from the threat or use of force." Article 33 commands
that all "[t]he parties to any dispute
shall, first of all, seek a solution by negotiation,
enquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or arrangements,
or other peaceful means
." That force is prohibited
is not surprising, given that the very first words of the
UN Charter declare, "We the peoples of the United Nations
determined to save succeeding generations from the
scourge of war, which twice in our lifetime has brought
untold sorrow to mankind."
Under the international law concerning when nations
may apply force, "jus ad bellum," (3) force and
violence are last resorts, to be used only if
"necessary." This is the case under the UN Charter as
well as under the longstanding "just war" doctrine. (4)
The rule traditionally used to determine when a nation
may use force in self-defense explicitly requires and
defines "necessity" as an absence of other means to
address the danger: "There must be a 'necessity of
self-defense, instant, overwhelming, leaving no choice
of means, and no moment for deliberation,' and
the action taken must not be 'unreasonable or excessive,'
and it must be 'limited by that necessity, and kept
clearly within it.'" (5)
Under the UN Charter, decisions about using force fall
within the province of the UN Security Council, except in
the limited, temporary instance of a nation's need to use
force in self-defense to fend off an armed attack. When a
nation uses force in self-defense, the UN Security
Council is supposed to take control over that use of
force as soon as possible. (6)
The UN Charter sets out what could be described as a
pattern for the use of force only when necessary, and
escalation only by necessity. Indeed, the Charter is
structured in this pattern. Chapter V creates the
Security Council and enumerates its powers; Chapter VI is
entitled "Pacific Settlement of Disputes," and Chapter
VII is entitled "Action With Respect to Threats to the
Peace, Breaches of the Peace, and Acts of Aggression."
Article 33, in Chapter VI, commands, "[t]he
parties to any dispute, the continuance of which is
likely to endanger the maintenance of international peace
and security, shall, first of all, seek a resolution by
negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional
agencies or arrangements, or other peaceful means of
their own choice." The rest of Chapter VI discusses
Security Council involvement in solving these disputes
should the nations' efforts at pacific solution fail.
Chapter VII, "Action With Respect to Threats to the
Peace, Breaches of the Peace, and Acts of Aggression,"
outlines how the Security Council decides when to use
force, and the measures it may take. The requirement that
force may be applied only when necessary, and that
escalation must also be of necessity, runs throughout.
(7) Article 41 states that, in dealing with threats to
peace and security,
The Security Council may decide what measures not
involving the use of armed force are to be employed to
give effect to its decisions, and it may call upon the
Members of the United Nations to apply such measures.
These may include complete or partial interruption of
economic relations and of rail, sea, air, postal,
telegraphic, radio, and other means of communication, and
the severance of diplomatic relations.
The following Article, 42, states,
Should the Security Council consider that measures
provided for in Article 41 would be inadequate or have
proved to be inadequate, it may take such action by air,
sea, or land forces as may be necessary to maintain or
restore international peace and security. Such action may
include demonstrations, blockade, and other operations by
air, sea or land forces of Members of the United
Nations.
Article 42 requires careful, thorough consideration of
-- if not actual attempts to implement -- the means set
forth in Article 41, which can be broadly described as
economic sanctions. Military forces may be used "as may
be necessary," but those uses should at first be
non-violent: "demonstrations" and/or "blockade." Actual
violence seems to fall under "other operations." Although
I am not arguing that violence is never permissible, I
note that a canon of legal interpretation is to construe
terms such as "other operations" in light of the
preceding list. Here, the list clearly encourages the
non-violent use of armed forces before any resort to
violence.
It is clear, therefore, that the UN Charter permits
force only when necessary, and encourages the use of
pacific means to settle disputes, by nations and with the
involvement of the Security Council and other organs of
the UN, such as the General Assembly and International
Court of Justice. (8) After September 11, however, there
was no meaningful search for alternatives -- at least
that the public can point to. (9) The United States
simply claimed it could act alone under the right of
self-defense set forth in Article 51. (10) It is fair to
say that Article 51, even read broadly, does not allow
the ongoing situation of single nation's deciding if and
when it will use force, how much force to use -- and to
draw up, unilaterally, a list of nations it aims to
attack, in "self-defense." Yet this is precisely what the
U.S. is doing. (11)
THE MOTHER OF INVENTION: REQUIRING A
PROBLEM-SOLVING APPROACH IN JUS AD BELLUM
Under international law, the UN Security Council and
Member Nations must think up and try peaceful means of
resolving disputes. But how can they find such means? How
does one find such means to respond to the attacks of
September 11? Or to respond to the problem of terrorism
generally? A problem is that terrorism does not neatly
fit within existing categories in international law;
indeed, there is not even an agreed-upon definition of
terrorism under international law. After September 11,
there were debates over whether the attacks were "acts of
war" or "crimes," based on the belief that the answer to
this question would yield an adequate course of action.
(12) Yet this distinction does not make a difference; an
"act of war" does not, logically, necessitate a military
response, or award a nation a blank check to respond with
armed force. As discussed above, the UN Charter sets
forth how to deal with acts of war.
If anything, this problem of how to conceptualize
terrorism should be regarded as an opportunity to
investigate different and fresh approaches. One approach
is to use the method of problem-solving where one defines
the problem, generates a wide variety of possible
solutions using a variety of thinking methods, and then,
using reason and experience, chooses the best among them.
(13) A characteristic of competent problem-solving is to
ask the right questions. For example, in generating
solutions, one might keep asking, "What else might we do
here?" To guide that inquiry, one might also ask, "How
can we see this problem as an opportunity to address the
needs of a wide spectrum of people and constituencies?"
To generate answers, a person would use an array of
thinking techniques and methods, both traditional and
innovative, all of which can be taught and learned. (14)
It may not be easy to come up with different approaches,
but it is possible, especially when many people with
relevant and broad experience are included in the
process.
That such an approach was not taken by the U.S. and UN
in response to September 11 is apparent. The
all-important first step down this road was never taken,
which has led to disastrous consequences for human
rights: The problem to be solved or goal to be achieved
was never adequately defined. For example, was it 1)
apprehending Osama bin Laden and key Al Qaeda members, or
2) preventing further terrorist attacks from Al Qaeda and
other sources? The military solution -- and the backing
of repressive, anti-Muslim regimes in countries such as
Uzbekistan (15), as well as deal-making that, inter alia,
lifted sanctions imposed on Pakistan and India for their
nuclear proliferation (16) -- will quite possibly prove
counter-productive to these ends, especially that of
limiting violence in the future. One thing that should be
clear is that the solution chosen should be reasonably
expected to be effective, and not exacerbate the problem.
(17)
The U.S failure to define the problem and goal caused
"mission creep," a term used to describe the tendency of
a military incursion to grow in size and objectives. What
appeared to be a mission to apprehend one man, Osama bin
Laden, or destroy Al Qaeda camps and capabilities, seemed
to turn into a mission to liberate Afghanis from the
Taliban -- a U.S. humanitarian incursion. But whether
that was the mission became murky when the U.S. refused
to stop bombing to allow food to be trucked in for
millions of Afghanis facing starvation. (18) What started
as a "War on Terrorism" (again, vaguely defined) seemed
to become something else. (19) Many Americans whom I know
personally and believe to be reasonable asserted that
this "liberation" justified, even if only post hoc, the
military campaign.
Yet questions persist: Has the U.S. "won"? When will
the war "end"? Is the threat of terrorism gone? U.S.
officials have given ever-changing, often contradictory
reports that: Osama bin Laden has escaped from
Afghanistan; he remains in Afghanistan; he was probably
vaporized by U.S. bombs. Another question persists: What
happens if U.S. forces never capture bin Laden -- and is
finding him the key to ending international terrorism?
That terrorism would somehow end with the destruction of
al Qaeda -- even the destruction of all its cells in
every country it is said to infest -- is highly unlikely.
Terrorism, of course, is a tactic, not a doctrine, form
of government, or idea per se. In this light, waging a
military campaign against it is a fool's errand.
These nagging questions evince the failure to define
the problem to be solved. If one does not know whether or
when one can declare victory, then the problem has not
been defined: Won what? Victory over what?
The U.S. government may have been in shock after
September 11. It may have felt compelled, by public
opinion, to wage war. That said, the resulting war has
been violent and, destructive, and has violated human
rights. As a result, it may have increased the likelihood
of terrorist attacks in the future.
If the above analysis is correct, then at the least
it shows the inappropriateness, and, moreover, the
danger, of allowing a single nation to determine how it
will respond to a major terrorist attack. A collective
approach such as the UN Charter provides is necessary,
and people of conscience should continue to argue for
it.
Toward A More Inclusive And Open Security Council:
Changing International Law And Practice
The chances of effective problem-solving increase when
a range of people with broad and relevant experience are
included in the process. (20) The UN Security Council
could facilitate the search for answers to the questions
above by calling upon experts, and in particular leaders,
workers and scholars from the human rights community. Who
better to help think up ways to resolve conflicts while
safeguarding human rights? Currently, the Security
Council does not encourage such participation from these
constituencies; it is the other way around. For example,
The NGO Working Group on the Security Council, a group of
about 30 NGO representatives from groups such as Amnesty
International, CARE, and Oxfam, has worked since 1995 to
build informal relationships with members of the Security
Council. (21) This involvement is a step in the right
direction. Yet there exists no mechanism to force the
Security Council to work with such groups; the
relationships and meetings are for the most part
voluntary, and promoting "cordiality" appears to be an
important concern of the working group, which, of course,
can impede dialogue and problem-solving. (22)
International law could be interpreted to force the
Security Council to consult with such groups; at the
least, this practice should be encouraged and promoted.
Indeed, with the weight of the world upon it -- and the
potential to be criticized by the world -- the Security
Council should welcome such input.
Yet that grave weight also encourages secrecy, which
collides with another good way to improve the
consideration of peaceful means: increase the openness of
UN Security Council deliberations. More openness would
likely encourage the inquiry and debate that can lead to
better ideas. Openness often disciplines decision-making
by encouraging it to follow principles of reason and
equity. As the names of groups such as Human Rights Watch
suggest, it is easier to ignore human rights when no one
is looking.
Thus it is time to reform current Security Council and
UN rules and practice to encourage inclusiveness and
openness. The Security Council should "judicialize,"
i.e., show the thinking behind, its conclusions regarding
its own uses of force as well as the use of force by
individual nations. For example, the Security Council
could be required to produce a document discussing
alternatives to force and whether and why each would
fail. In this way, the range of the search could be seen,
and specious, tendentious arguments exposed. Again, there
are few decisions that are graver, and thus more worthy
of discussion, than whether to unleash a modern war
machine, which always kills civilians and forces others
to flee and live in refugee camps.
Of course there may be an objection that such a
"judicialization" of the Security Council would deprive
it of necessary speed in making such decisions by turning
it into a "debating society." Yet the UN Charter accounts
for this requirement of speed, allowing, for example,
nations to use force to defend themselves from armed
attack "until the Security Council has taken measures
necessary to maintain international peace and security."
(23) The Security Council is in fact designed as a
deliberative body, as the Charter sections outlining its
powers make clear. (24) In any case, whether lighting
speed was necessary after September 11 is doubtful. U.S.
officials globe-trotted to negotiate rights to use bases
in, and fly bombers over, various nations, and to shore
up support from allies, for more than three weeks.
Surely, U.S. officials could have made better use of the
Security Council in this time. Indeed, had the Security
Council deemed military force necessary, it simply could
have used its powers under the UN Charter to require
member nations to provide the bases and fly-over rights
the U.S. spent time negotiating on its own -- and
possibly more quickly. (25)
Pressure from the General Assembly
If the Security Council will not conduct such an
inquiry regarding the necessity for using force and
violence in a given case, then the General Assembly
should conduct its own. The General Assembly could also
work with experts, activists and scholars to find
alternatives to force in impending conflicts, which might
pressure the Security Council to justify its
decisions.
Solutions also could be generated "proactively" to
address other, perhaps less pressing problems that might
lead to military incursions if left to fester;
Afghanistan in 2000 comes to mind. These suggestions
could be published widely. The General Assembly, as a
"voice for the South," has more of an interest in
preventing military campaigns by the North, which
dominates the Security Council; efforts at
"judicialization" might have to begin here.
Pressure from the International Court of Justice
(ICJ)
When possible, member nations can initiate claims to
the International Court of Justice concerning particular
uses of force. Nations indirectly affected by a
particular use of force could develop legal theories on
which to base claims for these effects. Such action can
help create doctrines to prevent future uses of
force.
In other instances, the General Assembly or qualified
UN organizations could use their powers under Article 96
to request the ICJ to issue an advisory opinion
concerning the legality of a particular use of force.
Although working through the Court can be time-consuming,
the Court by its nature can conduct fairly searching
inquiries concerning the legality of the use of force.
(26)
Advisory opinions offer a real opportunity for
guidance. Questions can be framed more broadly than the
question a particular member nation might be able to pose
in the context of an actual claim for damages. For
example, in 1996 the ICJ issued an advisory opinion in
response to a request by the General Assembly, which the
ICJ framed as follows: "Is the threat or use of nuclear
weapons in any circumstance permitted under international
law?" (27) The advantage of the advisory opinion here is
clear: No nation had to wait to be attacked by nuclear
weapons before raising the question. Perhaps a similar
question could be framed by the General Assembly to ask
whether the use of military force to topple the
governments of "terrorist nations" is ever legal, or
under what circumstances it would be legal to use force
in response to terrorist attacks. Obviously, great care
would be needed to frame such a question, and I do not
attempt to frame it here; I am merely suggesting the
possibility. Similarly, there may be a risk of an
unsatisfactory answer; again, I merely suggest the
possibility of seeking an advisory opinion, as a way of
voicing these concerns, and of challenging the dominant
powers.
Pressure from Outside the UN
In lieu of, or in addition to, these efforts by the
various UN organs, human rights experts and scholars must
step up their own efforts to generate and publish
alternatives to using force, and to generate popular
support by showing the common benefits that will accrue
from protecting human rights. One of the things that
struck me after September 11, as an American arguing
against an impending, and then actual, war against
Afghanistan, was the lack of alternatives presented. The
questions I heard most were, "If you oppose war, then
what do you suggest instead?" and, "What are you saying,
we do nothing?" (28) Notwithstanding that to criticize a
proposal one need not posit an alternative, alternatives
are what many grieving, fearful and angry Americans
demanded in response to any criticism of the war. Despite
that international law may seem calm and deliberative
concerning jus ad bellum decisions, a population
responding to an outrageous terrorist attack is anything
but calm and deliberative. The legal mechanisms to
determine the responses to such attacks must take this
reality into account. (As should the fact that a
superpower might avoid the UN altogether.) Ideally, human
rights activists would have been able, after September
11, to point to concrete alternatives to war that would
have proved less costly, in both lives and money; to pose
less of a danger of increasing the likelihood of
responsive terrorist attacks; and to punish the planners
and perpetrators of the September 11 attacks. Human
rights activists should keep in mind that for many
people, war will seem like the best response to an
outrageous terrorist attack. We should try to defuse the
fear, anger and other feelings that fuel such a
belief.
Ultimately, governments respond to their people, and
UN Security Council members are not oblivious to their
own governments' positions and needs. Promoting effective
alternatives to using force -- both when conflict is
imminent and when it is not -- will help expose some
decisions by the Security Council (and nations) to use
force as unreasonable and inequitable, and thus illegal.
Shining light on the decision-making process could
increase the incentive to find, and try, peaceful
options.
CONCLUSION
The concept of necessity in jus ad bellum requires
that before force may used to resolve conflicts between
nations, the UN Security Council and, in the case of
self-defense, national officials, must undertake a
penetrating and careful search for and consideration of
peaceful means, and must try these peaceful means unless
they would prove futile. This is a legal requirement. It
is not simply idealistic.
The best way to carry out this requirement is for the
actual decision-makers to use a problem-solving approach
and expand the pool of those who can help generate
possible solutions. To that end, the Security Council
must embrace other actors, such as government and NGO
officials, experts, scholars, and in particular human
rights activists, experts, and leaders from around the
world. Concern for peace and human rights is not the
province of "peaceniks" or "human rights activists"
alone; it is the province, too, of those whose job it is
to follow and carry out international law. Thus, for the
human rights community to tackle the problem of how to
make the Security Council decision-making process more
inclusive and more open, we must ask, as a first step,
"How can we get the Security Council and governments to
seek other means, and to include us in that process?" One
way to do this now is by focusing ourselves on finding
peaceful alternatives to force and convincing the public
of their efficacy, which could expose particular uses of
force as unreasonable and unnecessary. We can also use
organs of the UN such as the General Assembly and
International Court of Justice in raising these concerns.
In turn, this exposure could put pressure on the Security
Council and governments to consider and adopt reasonable,
effective and equitable peaceful means.
The wide search for alternatives is eminently
practical and reasonable, and necessary. There appears to
be no other way for humankind to make the leap to
peaceful resolution of conflicts and problems. Human
rights are among the first to fall by the wayside in war.
Preventing war is a necessary first step in protecting
human rights, and we must turn much of our energy toward
finding alternatives, and toward forcing governments to
try them.
NOTES
1) Brian J. Foley is a member of Lawyers Against the
War and a professor at Widener University School of Law,
Wilmington, Delaware, USA. He was awarded his J.D. from
the Boalt Hall School of Law, University of California,
Berkeley. He would like to thank the Cairo Institute for
Human Rights Studies, Lawyers Against the War, Gail
Davidson, Michael Mandel, and M.G. Piety.
2) Because this paper focuses on the requirement of
necessity and how it should work to compel the search for
alternatives to force and violence, it does not undertake
the analysis of whether the war against Afghanistan meets
the requirements of self-defense under international law,
the only legal basis the U.S. has claimed. To that end,
see four analyses widely published and distributed by
three members of Lawyers Against the War: Gail Davidson,
"International Law: The Illegality of the War on
Afghanistan," The Lawyers Weekly , November 2, 2001
(Toronto, Canada) ; Gail Davidson, "International Law:
The Illegality of the War on Afghanistan," Native News
Online, October 16, 2001
http://nativenewsonline.org/attackonus2.htm); Brian J.
Foley, "Legal Analysis: U.S. Campaign Against Afghanistan
Not Self-Defense Under International Law," Counter Punch,
November 6, 2001 (www.counterpunch.org/foley1.html); and
Michael Mandel, "This War is Illegal and Immoral and Must
be Stopped," Science For Peace Forum and Teach-In,
University of Toronto, December 9, 2001
(http://scienceforpeace.sa.utoronto.ca/Special_Activities/Mandel_Page.html).
Additionally, for an excellent and broad discussion of
the international laws applicable to the September 11
attacks and responses thereto, see Helen Duffy,
"Responding to September 11: The Framework of
International Law" (available at www.interights.org).
3) As opposed to laws, including humanitarian laws,
governing combatants in conflicts already underway, "jus
in bello."
4) See UN Charter, Article 42: "Should the Security
Council consider that measures provided for in Article 41
[measures not involving the used of armed force]
would be inadequate or have proved to be inadequate, it
may take such action by air, sea, or land forces as may
be necessary to maintain or restore international peace
and security. Such action may include demonstrations,
blockades, and other operations by air, sea, or land
forces of Members of the United Nations (emphasis
added)." For an expression of the just war doctrine, see,
e.g., The National (U.S.) Conference of Catholic Bishops,
"The Harvest of Justice is Sown in Peace " (1993) ("Last
Resort: force may be used only after all peaceful
alternatives have been seriously tried and exhausted.
(emphasis added)." Most likely, the UN Charter displaces
this doctrine, but in any event, the two do not conflict
on this issue.
5) Peter Malanczuk, Akehurst's Modern Introduction to
International Law 314 (7th Rev. ed. 1997) (quoting Daniel
Webster, British and Foreign State Papers 1841-1842, Vol.
30, 1858, 193) (emphasis added). This rule was penned by
U.S. Secretary of State Daniel Webster in an exchange of
diplomatic papers concerning an 1837 incident where
British forces crossed the border from Canada and
destroyed the Caroline, an American ship, in a New York
state port, because it was being used to assist Canadian
rebels against Great Britain. The rule is widely regarded
as the "classic" rule on self-defense in international
law. Id.
6) See Article 24 ("Members confer on the Security
Council primary responsibility for the maintenance of
international peace and security") and Article 46 ("Plans
for the application of armed force shall be made by the
Security Council with the assistance of the Military
Staff Committee."); Article 51 (nations may use force in
self-defense "until the Security Council has taken
measures necessary to maintain international peace and
security").
7) See Helen Duffy, supra note 2, at 29 n. 10.
8) See generally Chapter VI, "Pacific Settlement of
Disputes."
9) Below I discuss the importance of public awareness
of this search for alternatives.
10) See Letter from the Permanent UN Representative of
the United States to the President of the UN Security
Council (October 7, 2001), UN Doc. S/2002/946 (October 7,
2001).
11) For specific examination of the legality of the
U.S. course of action, see the articles listed in the
first paragraph of Footnote 2.
12) See, e.g., Geoffrey Robertson QC, "There is a
Legal Way Out of This
As Long as It is Handled as
an Act of International Crime, Not One of War," Guardian
(London), September 14, 2001 (advocating treating the
attacks as crimes against humanity and applying judicial
efforts before any military strikes are launched).
13) "Creative Problem Solving," which employs this
method, is a growing movement in legal education and
beyond, in the U.S. and beyond. This method is described
as follows:
Creative problem solving is an evolving intellectual
discipline that requires lawyers to define problems so as
to permit the broadest possible array of solutions, both
legal and non-legal. Creative problem solving seeks many
points of view, and systematically examines problems for
their relational implications at the individual,
institutional and societal levels. It seeks a caring
approach and solutions that are imaginative or
transformative in nature. This explanation comes from
Professor Janeen Kerper, Academic Director, McGill Center
for Creative Problem Solving, California Western School
of Law, San Diego, California, USA. Cal Western has built
its curriculum around this approach.
14) See, e.g., Edward de Bono, de Bono's Thinking
Course, 1-10 (1982, 1985) (Chapter entitled, "Thinking as
a Skill"). See also James L. Adams, Conceptual
Blockbusting: A Guide to Better Ideas 3d ed. 1-3 (1985).
These are but two of many outstanding books in this
field.
15) See Simon Churchyard, "Supporting Tyranny in the
Name of Freedom," Red Pepper, February, 2002.
16) Carl Conetta, "Beyond bin Laden: The Temptations
of a Wider War," Project on Defense Alternatives,
Cambridge, MA (USA): Commonwealth Institute, 28 September
2001, endnote 2
(http://www.comw.org/pda/0109bm22.html).
17) The requirement that the chosen solution be
effective is closely related to the jus ad bellum
requirement of necessity. "Logically, for measures to be
necessary to avert a threat, they must be capable of
doing so. A relevant question in determining the right to
self defence is therefore the effectiveness of any
proposed measure. If measures against those responsible
for an attack will increase the threat then they can
hardly be said to be necessary to avert it." Helen Duffy,
supra note 2 at 11.
18) See Deborah Barfield, "Afghanistan Edges Toward
Famine - Relief efforts hampered by bombing, weather,"
Newsday (New York, NY, USA), November 11, 2001, at 5.
19) It is unclear that destroying the Taliban was
necessary to defeat Al Qaeda, which has been described as
having "cells" in up to 60 nations. Indeed, the
relationship between the Taliban and Al Qaeda could
support an argument for leaving the Taliban in place and
infiltrating and/or working with it to gather information
about the widespread cells, their training, their
capabilities, and the like. Or, the Taliban could have
been provided incentives to split off from Al Qaeda, as a
report released just after the Symposium for which this
paper was written -- suggests. See Carl Conetta, "Strange
Victory: A critical appraisal of Operation Enduring
Freedom and the Afghanistan war," Cambridge, MA (USA):
Commonwealth Institute Project on Defense Alternatives
Research Monograph #6, 30 January 2002
(http://www.comw.org/pda/0201strangevic.pdf).
20) The chances are also increased when the
decision-makers are trained in problem-solving. One
suggestion would be to encourage the Security Council to
attend seminars to develop these skills. In fact, such
training is often provided by consultants to high level
management of large corporations and other
institutions.
21) Information about the NGO Working Group on the
Security Council can be found on the Global Policy Forum
website, www.globalpolicy.org.
22) See id (describing relationships between the
Working Group and Council members as "cordial").
23) UN Charter, Article 51.
24) See UN Charter, Chapters V - VII.
25) See UN Charter, Article 43(1) ("All Members of the
United Nations
undertake to make available to the
Security Council
armed forces, assistance, and
facilities, including rights of passage, necessary for
the purpose of maintaining peace and security.").
26) See, e.g. Nicaragua v. USA, ICJ Rep. 1986, 14.
27) ICJ Advisory Opinion on the Legality of the Threat
or Use of Nuclear Weapons, 35 ILM 809 (1996). This
question was originally, "Is the threat or use of nuclear
weapons in any circumstance permitted under international
law? (Est-il permis en droit international de recourir a
la menace ou a l'emploi d'armes nucleaire en toute
circonstance?)" UNGA Res. 49/75K (Dec. 15, 1994). This
question was not novel: The General Assembly passed a
resolution in 1961 declaring nuclear weapons illegal, and
the request for the advisory opinion from the ICJ was
originally brought in 1993 by the WHO. Peter Malanczuk,
supra note 5, 346-50.
28) Some writers did, of course, suggest alternatives.
See, e.g., Stuart Diamond, "A Violent War Against
Terrorism is Doomed to Fail," The Philadelphia Inquirer,
September 23, 2001; Jamie Lowther Pinkerton, "Brains, Not
Bombs," The Spectator, October 27, 2001; The Rev. Dr.
Peter Wells and Sally Milbury-Steen, "War is Not the Only
Way," Delaware News-Journal, October 16, 2001; Philip W.
Wilcox, "The Terror," The New York Review of Books,
October 18, 2001 at 4. For a creative, wide-ranging,
general list of ways to combat terrorism, see United
Nations Office for Drug Control and Crime Prevention, "A
Classification of Counter-Terrorism Measures"
(http://www.undcp.org/terrorism_measures.html).
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