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NAVAL LAW REVIEW

HOW MUCH IS TOO MUCH PRO PATRIA? ASSESSING THE LIMITS OF A CHAPLAIN’S ROLE AS ADVISER TO THE COMMAND Rebecca Ahdoot

SELF-DETERMINATION AND TERRORISM: CREATING A NEW PARADIGM OF DIFFERENTIATION Lieutenant Andrew Coffin, JAGC, USN

A PROPOSAL TO CONFORM MILITARY RULE OF EVIDENCE 305 IN LIGHT OF THE SUPEME COURT’S HOLDINGS IN MARYLAND V. SHATZER AND BERGHUIS V. THOMPKINS Commander Robert P. Monahan, Jr., JAGC, USN

FUNDAMENTAL CONCERNS: WHY THE U.S. GOVERNMENT SHOULD NOT ACCEDE TO THE ROME STATUEJoseph A. Rutigliano, Jr.

AN ANALYSIS OF CHINESE MARITIME CLAIMS IN THE SOUTH CHINA SEA Commander Dustin E. Wallace, JAGC, USN

THE BEST DEFENSE? LEGIT IMACY AND PREVENTIVE FORCE Lieutenant Colonel George Cadwalader, Jr., USMC

VOL. 63 2014

ARTICLES

BOOK REVIEW

NAVAL LAW REVIEW

Judge Advocate General of the NavyVice Admiral Nanette M. DeRenzi, JAGC, USN

Commander, Naval Legal Service CommandRear Admiral James W. Crawford III, JAGC, USN

Commanding Officer, Naval Justice SchoolCaptain Stacy A. Pedrozo, JAGC, USN

Editor-in-ChiefLieutenant Commander Graham C. Winegeart, JAGC, USN

Managing EditorLieutenant Megan Romigh, JAGC, USN

Article EditorsLieutenant Commander Lena E. Whitehead, JAGC, USN

Lieutenant Andrew M. Coffin, JAGC, USNLieutenant Shawn K. Collins, JAGC, USNLieutenant Bradley L. Davis, JAGC, USN

Lieutenant Ann E. Dingle, JAGC, USNLieutenant Candace M. Holmes, JAGC, USN

Lieutenant Michael E. Jones, JAGC, USNFirst Lieutenant Andrew Hiller, USMC

First Lieutenant Theodore Massey, USMCLieutenant Junior Grade Oliver Kiefer, JAGC, USN

Mr. John ByrnsMs. Renisha ConwayMr. Joseph Frandino

Mr. John KelleyMr. Mischael Sachmorov

Mr. Allen Tolleth

The Naval Law Review encourages frank discussion of relevant legislative, administrative, and judicial developments in military and related fields of law. Views expressed in published articles must be considered solely those of individual authors and do not purport to voice the views of the Judge Advocate General, the Department of the Navy, or any other agency or department of the United States. The Naval Law Review is published from appropriated funds by authority of the Judge Advocate General in accordance with Navy Publications and Printing Regulations P-35. This issue of the Naval Law Review may be cited as 63 NAVAL L.REV. [page number] (2013). A digital version of the Naval Law Review may be found on the world wide web at www.jag.navy.mil.

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CONTENTS

Articles, Essays & Notes

HOW MUCH IS TOO MUCH PRO PATRIA? ASSESSING THE LIMITS OF A CHAPLAIN’S ROLE AS ADVISER TO THE 1 COMMAND Rebecca Ahdoot

SELF-DETERMINATION AND TERRORISM: CREATING A NEW PARADIGM OF DIFFERENTIATION 31 Lieutenant Andrew Coffin, JAGC, USN

A PROPOSAL TO CONFORM MILITARY RULE OF EVIDENCE 305 IN LIGHT OF THE SUPREME COURT’S HOLDINGS IN MARYLAND V. SHATZER AND BERGHUIS V. THOMPKINS 67 Commander Robert P. Monahan, Jr., JAGC, USN

FUNDAMENTAL CONCERNS: WHY THE U.S. GOVERNMENT SHOULD NOT ACCEDE TO THE ROME STATUTE 92 Joseph A. Rutigliano, Jr.

AN ANALYSIS OF CHINESE MARITIME CLAIMS IN THE SOUTH CHINA SEA 128 Commander Dustin E. Wallace, JAGC, USN

Book Review

THE BEST DEFENSE? LEGITIMACY AND PREVENTIVE FORCE 160 Lieutenant Colonel George Cadwalader, Jr., USMC

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2014 Book Review: The Best Defense?  

 

 

 

BOOK REVIEW  

Lieutenant Colonel George Cadwalader, Jr., USMC*

 

The Best Defense? Legitimacy and Preventive Force1

 

  

This exceptionally well written and researched book represents the findings of the Stanford University Task Force on Preventive Force. Under the chairmanship of former Secretary of State George P. Schultz and Dr. Coit D. Blacker, the Task Force assembled a distinguished panel of international experts to evaluate the legal and policy concerns surrounding the use of preventive military force. The Task Force recognized the need for this inquiry given evolving threats to national and international security posed by failed states, rogue regimes, weapons of mass destruction (WMDs), and transnational criminal and terrorist organizations. The result is a comprehensive study authored by Mr. Sofaer which argues that international law has not adapted to modern threats and thus runs the risk of irrelevancy. Recognizing the necessity of preventive force in certain circumstances, the report recommends that nations be guided by principles of legitimacy to ensure their actions are in keeping with values enshrined in the Charter of the United Nations (U.N.) even if they are not in strict accordance with existing international law.

 The author brings substantial experience to the task of articulating the

Task Force’s research. He is an Air Force veteran and former assistant United States attorney, Professor of Law at Columbia University School of Law, United States District Court Judge for the Southern District Court of New York, and legal adviser to the United States Department of State. Since 1994, Mr. Sofaer has served as the George P. Shultz Distinguished Scholar and Senior Fellow at the Hoover Institution.

 The underlying premise of the report is some non-imminent threats to

international security are so inherently dangerous that preventive force is preferable to the consequences of inaction. Mr. Sofaer observes that the use of force by a nation which violates the sovereignty of another is generally

 

 * The author is a judge advocate in the United States Marine Corps. He graduated, cum laude, from the University of Wisconsin School of Law in 1996. He prepared this book review while assigned to U.S. Naval War College International Law Department where he served as a military professor and presented training on the law of armed conflict, rules of engagement, operational law, and related topics to a variety of domestic and international audiences. 1 ABRAHAM D. SOFAER, THE BEST DEFENSE? LEGITIMACY & PREVENTATIVE FORCE (2010).

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 considered illegal under international law unless sanctioned by the U.N. Security Council or justified by self-defense against an actual or imminent state- sponsored armed attack. He notes this current legal paradigm presents unacceptable risks to international security for a variety of reasons. These include the fact that the U.N. does not always provide a credible deterrent or response to international threats. Moreover, transnational terrorist groups often operate in the territories of states unwilling or unable to fulfill their sovereign responsibility to eliminate these unlawful entities. With access to weapons of mass destruction, the possibility for terrorist groups or rogue regimes to cause catastrophic harm requires preventive action even if the exact time and location of their attacks may be unknown.

 Article 51 of the U.N. Charter provides that “nothing in the present

Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”2 Mr. Sofaer asserts that there is wide support among international law scholars for the proposition that anticipatory self-defense is only authorized when the need is “instant, overwhelming, leaving no choice of means, and no moment for deliberation.”3 This standard is derived from Secretary of State Daniel Webster’s famous 1841 legal argument against a British military attack upon Canadian insurgents operating from U.S. territory.4 However, Mr. Sofaer opines that Secretary Webster’s assessment of the law regarding preemptive self defense must be viewed in the context that the United States was willing and able to address the illegal actions of these insurgents through domestic action. Despite this, Mr. Sofaer maintains that in the post-U.N. Charter period:

 Webster’s words have been used to describe the full scope of anticipatory self-defense. This reading leaves no room for preventive actions without [U.N. Security] Council approval for the purpose of averting any non-imminent danger, no matter how serious the threat and however the likelihood of it being realized. It also precludes lawful action to deal with any non-imminent threat posed by a group in another state, however unwilling or unable the foreign state may be to deal effectively with the threat.5

   

2 U.N. Charter art. 51. 3 SOAFER, supra note 1, at 89. 4 Letter from Daniel Webster, U.S. Secretary of State, to Henry Fox, British minister in Washington (Apr. 24, 1841), quoted in JOHN BASSETT MOORE, A DIGEST OF INTERNATIONAL LAW 412 (1906). 5 SOAFER, supra note 1, at 90.

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 In light of the failure of international law to provide legal justification

for self-defense sufficient to account for modern threats, Mr. Sofaer’s report argues preventive action may be morally justifiable even if legally questionable. He opines that impractical limitations on the right of anticipatory self-defense undermine the fundamental goal of the U.N. Charter to maintain international peace and security. Furthermore, when international law fails to provide the tools necessary to effectively address current threats, states may ignore the law and act solely in their self-interest without any regard for international norms. Accordingly, his report argues that nations should be guided by concepts of legitimacy when determining the propriety of preventive force.

 Drawing on the work of the Task Force and the 2004 U.N. Secretary

General’s High-level Panel on Threats, Challenges and Change,6 Mr. Sofaer outlines several factors on which the legitimacy of preventive force will depend. These include whether (1) the severity of the threat is sufficient to justify military force, (2) the military action is necessary because diplomacy and other measures have been exhausted, (3) the amount of force is proportionate to the danger to be averted, (4) the action has international support, (5) the action supports U.N. Charter values and objectives, (6) the strength of the evidence justifies the use of force, and (7) a careful balancing of consequences is conducted to determine if the action will cause more harm than good.

 By recognizing preemptive force as an essential counterweight to

terrorism and unconventional threats, the 2002 and 2006 iterations of the National Security Strategy of the United States brought wide spread attention to legal and policy issues highlighted in Mr. Sofaer’s report. The U.S. led invasion of Iraq in 2003 also generated significant controversy. However, Mr. Sofaer highlights that preventive force has been exercised either unilaterally or by regional organizations for a multitude of purposes since the inception of the U.N. Charter. These actions have been met with varying degrees of approval or condemnation by the international community, and he uses extensive historical analysis to help derive the factors that support or undermine the legitimacy of preventive force. For example, he cites the humanitarian intervention in Kosovo where NATO employed military force without approval of the U.N. Security Council. This intervention has been widely considered just and necessary even if technically illegal under existing international law.

 

    

6 U.N. Secretary-General, A More Secure World: Our Shared Responsibility: Rep. of the Secretary General’s High-level Panel on Threats, Challenges and Change, U.N. Doc. A/59/565 (Dec. 2, 2004).

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 Mr. Sofaer does not view preventive force as a simple panacea for the

world’s ills. His report carefully outlines its dangers and limitations. The uncertainties involved with locating and attacking inchoate threats invite greater possibility for error than in those cases of imminent self-defense in which threats and targets are more clearly delineated. He notes that preventive force against non-imminent threats are by definition based on predictions of future behavior and may be victim to intelligence failures such as the incorrect conclusion that Iraq harbored WMD. Additionally, while a policy of preventive force can serve as a deterrent, it can also destabilize international relations, provoke terrorist activity that would not otherwise occur, and trigger unintended consequences more dangerous than the original problem.

 Mr. Sofaer’s report does not provide easy answers. It is sure to be

controversial in advocating a departure from the existing bright line rules under international law governing the use of force. However, it does provide valuable and pragmatic guidelines for consideration by policy makers and strategists in determining how to address threats that have evolved more rapidly than the law, while not abandoning the underlying values of the U.N. Charter.

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