 So, over to you, Dr. Randall. All right, Professor Cook, thank you very much. Now, let me begin by saying I realize that I stand between all of you and lunch. That's a very scary place to be, so I will try to keep everybody awake. If I fall asleep, it would be very bad. And if you fall asleep, well, just promise me not to snore. So as Professor Cook said, yesterday, you all talked a little bit about just war theory. He talked about the evolution of just war theory and the relationship between just war theory and international law. I'm going to attempt to take it a little bit further to where we are today and to the contemporary international system. Now, my focus is going to be on the international law of conflict management. Now, as you all know, that involves two strands, the law relating to the recourse to force, sometimes referred to as the use odd bellum. These are the norms relating to when an actor can initiate the use of military force against another international actor. And then the law relating to the conduct of hostilities, sometimes called the use in bellow, the laws of war, the laws of armed conflict, international humanitarian law is sometimes a phrase used there. Our focus today will be on the law relating to the recourse to force, specifically the use odd bellum. And the starting place for this discussion is we're going to look at four essential elements. We're going to look at the United Nations Charter Framework for the Use of Force. Now, my understanding is that Professor Cook spoke a little bit about this. So it'll be a review, but I promise not to call on people and ask you to recite the UN Charter. But it'll be a bit of a review. And then I want to touch a little bit on contemporary challenges to the Charter Framework. The United Nations Charter, as you know, was adopted on October 24th, 1945. The UN just celebrated its 70th anniversary. A lot has happened since then. So what are some of the challenges we see in the modern world? And then I'm going to look at three case studies that illustrate the difficulty of these challenges. Now, in the course of doing this, we'll be focusing on the law. But my hope is you will see the contrast between traditional just war theory and international law as it's developing. And finally, I'm going to leave you with a question. For those of you who are fans of the band Lincoln Park, there's a song called In the End. And the reference is, in the end, it doesn't even matter. Well, the question I'm going to leave you all with is what do these contemporary challenges mean for the current status of the United Nations Charter Framework, and how, perhaps, can just war theory help us out of some of those challenges? So we're going to start with the Charter Framework. Can anybody tell me what that is a depiction of? And extra points if you can tell me who gave it to whom? Anybody? Anybody? Say again? Swords into plowshares. It is a man beating a sword into plowshares. That is an illusion from what? The Bible, the Hebrew scriptures. Anybody know what book of the Bible? No, we're not in Sunday school class. Now, does anybody know what book of the Bible? Not Amos. Good, good, good, good guess, good guess. Well, it's in two different books, the exact same passage. It's in Isaiah 2, 4. And it is also in the book of Micah. Isaiah 2, 4. And they shall beat their swords into plowshares and their spears into pruning hooks. Nations shall not lift up sword against nation. Neither shall they learn war anymore. Isaiah 2, 4. That is a gift from the great peaceniks, the Soviet Union, to the United Nations. And that sits in front of the United Nations secretariat building in New York. Now, I start with that because it's Isaiah 2, 4. The starting point for understanding the charter framework for the recourse to force is article 2, paragraph 4. Coincidence? I'm sure, actually I'm sure it is. But nonetheless, it's an interesting point to note. All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the United Nations. This is the cornerstone of the charter framework. A basic proscription, a basic prohibition on the use of force. And not even the use of force, but the threat to use force. In the charter, there are only two explicit exceptions to this article 2, 4 prohibition that are still active. Those are force and self-defense and force authorized by the UN Security Council as provided in chapter 7 of the charter. Now again, I'm assuming you're somewhat familiar with these, but let me just refresh the memory. OK, article 51, a lot of text there. I apologize. Never put that much text up in PowerPoint, but that's what article 51 says. 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 UN until the Security Council has taken measures necessary to maintain international peace and security. And what follows says you have to report those measures to the Security Council. OK, what does that say? That says that states have an inherent right. The French is dra naturale, which can be interpreted as natural right, an inherent right of individual and collective self-defense if an armed attack occurs. So does anybody here from Canada? Anybody here from Canada? OK, please do not take offense that I'm about to say. OK, so let's say that one day the evil Canadians decide to invade the United States, and then they're moving into Montana. They're coming out of Alberta, and they're coming in to the United States. The United States would have the right to use military force in self-defense because an armed attack has occurred. That's what is meant by an individual right of self-defense. Now, it's also not just an individual right, but a collective right. So if the Canadians are invading the United States and the United States says, let's call upon the great powers of Grenada and St. Kitts and Nevis and various other Costa Rica, they have a great military. And let's have them all join collectively. That would also be permissible, exercise of a collective right of self-defense. So that is permissible under Article 51. Under Chapter 7 of the Charter, which is entitled Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression. So Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression, the Security Council is empowered under Article 39 to determine if there has been a threat to the peace, a breach of the peace, or an act of aggression. Now, those terms aren't defined anywhere authoritatively. There is no authoritative definition as to what a threat to the peace is, what a breach of the peace is, or what an act of aggression is. Now, somebody might say, well, didn't the General Assembly adopt the definition of aggression resolution in 1974? Yeah, it did. But resolution to the General Assembly are not binding. So there is no authoritative definition as to what those terms mean. As a consequence in practice, the Security Council has defined all kinds of things as threats to the peace, breaches the peace, and acts of aggression. Apartheid in Rhodesia and South Africa was defined as threats to the peace. Refugee flows in Somalia and a variety of other places have been defined as threats to the peace. So it is really within the discretionary authority of the Security Council to define those terms. When the Security Council has so defined something, it can then under Article 41, impose economic and diplomatic sanctions if they don't work, or if they don't think they're working fast enough, the Security Council can then impose military sanctions under Article 42. So if we think of something like the First Gulf War, August 2nd, 1990, Iraq invades Kuwait. Security Council immediately meets, condemns the action. Dops Resolution 660 condemning the action. Shortly thereafter, Security Council adopts Resolution 661 imposing economic and diplomatic sanctions on Iraq. Iraq doesn't do anything about it. Some months later, the Security Council adopts Resolution 678 authorizing the phrase was all necessary means, which meant the use of force to ultimately get Iraq out of Kuwait. And so on January 16th, 1991, when Allied forces began their operations, it was pursuant to this Security Council authorization. So point here. Article 24, basic proscription on the use of force, two exceptions in the charter, force and self-defense if an armed attack has occurred, and force authorized by the Security Council. Now, something very important to note, and this follows on and perhaps contrasts with just war theory, that force is simply not seen as an acceptable means of altering the territorial status quo. This looks like this action. Problems due to the changed nature of international conflict. Problems due to the failure of international institutions. What we have seen is a growing preference for justice over peace despite what the charter framework may have intended. And finally, it probably goes without saying, we have seen a fundamental change in the power structure of international system. Okay, interpretation problems. What does article 24 mean? And what does article 51 mean? Well, when I presented this initially, I said that article 21 is a basic prohibition, a basic proscription on the use of force, the threat to use force. But you know what? If you look at the language, that's not actually what it says. It doesn't say all force is prohibited. It says that force, which is against the territorial integrity or political independence of the state, or which in some other way transgresses the purpose of the United Nations, would be prohibited. But that doesn't prohibit all force. So some people said, well, what if I had a situation where hostages were taken? And I want to intervene to rescue those hostages. Couldn't we argue that that's below the article 24 threshold? That's not against the territorial integrity or political independence of the state. We're simply going in to get our people to get them out. Some have put humanitarian intervention in this category. They have said, if you have a dictatorial authoritarian regime committing genocide or other mass atrocities and you intervene to stop that, are you really using force against the territorial integrity or political independence of that state? If anybody aren't you doing it to affirm the integrity of people in that state? And so there have been a variety of arguments that would come up about the precise meaning of article 24. There's article 51. Article 51, as I presented it, suggests that you have the right to use force and self-defense if an armed attack occurs. That's what it says. If an armed attack occurs. However, if you look at article 51 again, you see that it says, nothing in the present charter shall impair the inherent right of individual and collective self-defense if an armed attack occurs. So some have looked at this and said, well, if it is an inherent right or not for all in French, that it pre-exists article 51. And article 51 doesn't create this right. So maybe there are other circumstances where force could lawfully use in accordance with this inherent right. The most logical claim here is the idea of anticipatory or preemptive self-defense, which existed prior to the charter under traditional customary international law. So when you look at article 51, it's a little confusing. All right, and we can go on. Second challenge in the charter era today is the change nature of international conflict. When the charter was adopted in 1945, the drafters were fundamentally thinking of one kind of conflict. Japan bombs Pearl Park. Germany invades Poland. Japan invades Manchuria. Italy invades Addisthenia. Clair Ober uses a force by regular military who crossed established international borders undertaken by armies, by navies, or by air forces. That's what the framers had in mind. So, Iraq invading the way, example. Argentina invading the Falklands, an example. The problem has been while we have seen some of those conflicts, we have also seen a variety of other things which were not anticipated by the framers of the charter. But they were, they were not embodied in the charter framework. So I mentioned several. Civil conflict, mixed conflict, covert actions, cyber attacks, terrorism, and a particular problem perhaps of nuclear weapons and other weapons of mass destruction. Okay, civil conflict. Anybody know what country that is? Iceland, yeah, so not a lot of civil conflicts going on in Iceland, but any of that. So, at least I hope not. So civil conflict, you got a rebel group of groups, they're challenging the government. Okay, that's not a law. There's no international law to prohibit internal conflict or strife like that. There are use in fellow rules, meaning there are laws of war relating to those kinds of conflicts, but there's nothing that says you can't do this. But what about an outside state? If Olivia wanted to intervene in support of the rebels, could they? If Olivia wanted to intervene in support of the government, could it? Charter framework doesn't clearly address that problem, that challenge. So it's unclear how the charter framework would apply if an outside state wanted to get involved in this conflict. Let me have what I call mixed conflict. And we got Iceland over here. That's a version of China, kind of a squeezed version of China. What if there's already prior intervention? So what if the outside state is already intervening in support of the rebels? Could a third state that intervened encounter that by any of the government? Or if somebody's already broken and intervened in support of the rebels, could another state intervene in support of the rebels? The charter framework doesn't address this. This came up in the Nicaragua case in 1986 and the International Court of Justice had to try to figure out how the charter framework would apply to those kinds of conflicts. Then there's covert action. When an outside state is doing something in another state for purposes of altering political, economic, cultural activities or structure in that state and doing it in a way that hopefully would not be attributed to the state's sponsorings. And that's the range for everything, for stuffing ballot boxes, to paying individuals to conduct riots, to blowing up bridges on up to an assassination. And beyond, is that a use of force? When is it a use of force? Charter framework didn't clearly address this kind of problem. Professor Cook tells me that somebody asked a question about cyber warfare and cyber actions. Professor Michael Schmidt here is one of the world's leading experts on cyber actions and has written extensively on international law as it applies to cyber activity. Now, I don't have to say that nobody thought about it in 1945, this obviously wasn't on anybody's mind. In the world today, it presents a huge challenge. When does a cyber action constitute the use of force? When does a cyber action rise to the level of an armed attack, justifying the right of action and self-defense? There's no treaty on this, there are a lot of different views on this, there is no clarity on this and yet this is something that so many people, official and unofficial, are struggling with today. Now there's terrorism, these people are actually with the Basque Terrorist Group at a time. Terrorists by definition are non-state actors. We have seen in recent years, and they have seen a few days ago, the use of force by terrorist organizations by non-state actors, whether it's ISIS, or Al-Qaeda, or Al-Shabaab, or Boko Haram, or back in the old days, the PLO, the IRA, the Bada'a Ma'amah group, the Haramah Army, or whichever group you want to put in here. Do terrorist actions violate the UN Charter? Charter was the only one state, Charter was not the only one terrorist group. So the first question is, when, if, can a terrorist act rise to the level of a use of force? When can it rise to the level of an arm attack justifying a response under Article 51? And then of course there's the very particular problem of nuclear weapons and other weapons of mass destruction. The Charter was signed in the spring of 1945. There were only a handful of people who knew about the Manhattan Project. Hiroshima and Nagasaki occurred in August of 1945. The UN Charter entered into force in October of 1945. The Charter was a pre-atomic, pre-weapons of mass destruction document. Wouldn't have been different if the international community would have known about nuclear weapons. Former Secretary of State John Foster Dulles, who was at the San Francisco Conference that produced the UN Charter, said it would have been. If the delegations would have known about nuclear weapons, they would have written a different agreement, perhaps. Okay, so those are just some of the challenges due to the changed nature of international conflict. Another problem, the failure of international institutions, in a sense, when states signed the UN Charter, they gave up their right to use force in a whole host of circumstances that they may have previously had, with the view that the United Nations and other international institutions would take up the slack, would act, would fight aggression, would deter aggression. Well, when the Cold War began to appear its ugly head, not too many years after the Charter was signed, it became clear that the Charter framework, as envisioned, wasn't going to work. That the system of great power management that existed during World War II, with the collaboration between the Soviet Union, the United States, Great Britain, what was then nationalist China, and later France, would not continue. So during the Cold War, the United Nations framework, while it was able to do some things in peacekeeping operations after conflicts were pretty much resolved, during the Cold War, except for that, the UN was really unable to deter aggression and unable to fight aggression. Cold War came to an end, so the union fell apart. Russia was trying to gain some legitimacy in the international system. China was practically being bought off depending on how you want to define that. You saw the international coalition coming together for the first Gulf War. You saw some action, although ultimately it affected in Bosnia, other parts were open, and it looked like the system was going to work again. And it fits and start, it has. But if you look at, say, Syria, one of the real problems in Syria has been the vetoing the security council and the inability to get Russia to go along with some early moves in that case. Then it would say, if there could have been some kind of concerted action earlier on, we might have seen some success. So, successes, a few, failures, many. But the whole edifice was based on the ability of the system to work. Another thing, and this connects again directly to just war theory. We said that the charter system was found on the idea that peace is more important than justice. That the delegates at San Francisco that assembled this frame in 1945 wanted to prevent World War III. The very charter of the UN specifically makes reference to two wars, two world wars, that twice in the life of those delegates that wreaked havoc across the world. Therefore, they said, we have to make peace and have a paramount objective, our paramount goal. But what happened? Well, states over time rejected this. States began saying, you know what, there are times where we want to use force, perhaps promote self-determination, whether to support freedom fighters or to support pro-socialist organizations. We want to support human rights. We want to be able to prevent mass atrocities. There are times where our priceless justify where someone did some horrible thing and makes sense for us to respond. There are times where it makes sense to use force to correct past injustices. And again, in some versions of just war theory, these would be just causes, but the charter framework said no. Well, the truth is, states of the international system said yes. They said we do want to use force in certain circumstances. So the value hierarchy that underlies the charter has been effectively rejected through state practice. All right, you mentioned earlier, well, I mentioned earlier that when the UN charter was signed, there had been a great power management system that had worked during the Second World War. The United States, Soviet Union, Great Britain, initially, Nationalist China and France collaborated, worked together. As a consequence, the new system enshrined in the UN charter gave those five powers veto status on the UN Security Council. The logic was that they can continue working together. It'll be great. If they can't, it will be very, very bad. And so the veto was put in as a safety valve, if you will, a fuse in the system, which said if you can't get the collaboration of those five states, then you shouldn't act because you'd be acting against the major power. Well, the problem was with the Cold War, you weren't able to get the collaboration. Even today, you're not able to get the collaboration. But moreover, those states don't necessarily reflect the power structure in the system today. And as such, the legitimacy of the United Nations and the Charter Framework is constantly called into question. All right, now that is just a thumbnail overview of some of the challenges in the international system. We know there are many others. They call into question the efficacy of the UN Charter Framework, and they really raise the question of whether we need other normative ways of thinking about the use of force. And so there have been many scholars, theologians, philosophers that have suggested we need to go back to just forward thinking, and we need to make it contemporarily equitable. That will help build some of the gaps in the Charter Framework. Well, legal scholars have been trying to figure out where the law is on a set of issues and light up all these challenges. And trying to develop a better way for understanding how international law can make sense in a world that wasn't thought about by the framers of the Charter. So, let's talk about three issues. And I'm gonna do this to illustrate the debate that exists between various sites of legal scholars, but also to offer some ideas about how just forward thinking can help us out. All right, so three case studies, if you will. First, and I'm not predicting any of this, and I'm not advocating any of this. First would be an Israeli airstrike on Iran. Second would be a NATO intervention to Syria for humanitarian purpose. I don't know what I mean by that. And the third is something that actually did happen, and that would be the Osama bin Laden raid. Okay, so we know that an Iran agreement has been reached. And we know that that's moving forward. We also know that Israel was not particularly happy about the Iran deal. And Prime Minister Benjamin Netanyahu advocated and argued strongly against it. At various points it's been making claims that there should be something done to take out Iranian nuclear sites. Well, let me give you this hypothetical. Let us say that for whatever reason the Iran deal goes down the twos. And Iran says, you know what? You gotta go to the sanctions quickly enough. You haven't followed through. The deal's off and we're gonna continue our efforts to present and develop some kind of, of course, never expected peaceful nuclear program. Okay, Bibi says, uh-uh, we're not doing it. And much as Israel launched an airstrike against the OSIRC reactor in 1981, Israel launches a series of airstrikes against a variety of sites in Iran. Is that legal? Would that be lawful under international law? Now, just for theory, Mike suggested it would be if you could show that there was such a threat that was being presented by the other states and that you were acting to mitigate or prevent that threat. So various forms of just war theory would suggest that a preemptive strike would be okay, would be moral, would be ethical thing to do. Would it be legal? Who says no? Raise your hand. Professor Cook says no. All right, who would like to stand up and tell me why they think the answer is no? And to go up. I won't bite you. I might look like it sometimes. Yes, sir. The act of aggression occurred in the Security Council resolution. There was no Security Council resolution. Okay, that would be good, good. That would be the most logical response and there is a school of scholars called restrictionists that would agree with that. They would say, wait a minute. The UN Charter says you can only use force if there has been an armed attack. There has been no armed attack and the Security Council hasn't authorized it. It's plain and simple. Many of these scholars would even say the purpose of Article 51 was to prohibit anticipatory uses of force. Now I put several people's names up here just to give you a sense as to some people that would agree with that position. The lady in Brownlee from the United Kingdom, you're in disney, I mentioned. In large part, you may know you're in disney. He was the Stockton Chair of International Law here not too many years ago. But as a noted Israeli international legal scholar, Christine Gray from the UK and Phil Jasper from the United States, former legal advisor to the State Department. They would say no, this is straightforward, you cannot use force. Here it would be unlawful. Probably most scholars of the word would fall into that category. We were to survey international legal scholars across the world. By the way, that might not be the most enjoyable thing, but if you're to survey international legal scholars across the world, most of them would probably say that. But there's some others who disagree, who say that anticipatory use of force is permissible. Why? Well, they would go back to an incident from 1837, which involved yes, Canada and the United States. And there was a huge debate as to whether anticipatory use of force is permissible. Daniel Webster was engaged in this and various other people. And the general view in 1837 was yes, as long as two criteria were met. Necessity and proportionality. Necessity meant that there was an attack about to happen, that it was imminent. That the Canadians are standing at the border with the attacks getting ready to come in and maybe they'll say that the attack is about to happen. And therefore, you have no moment to deliberate. You have to respond, even if you're actually using force against them first. The proportionality prong means that the response has to be proportionate to the threat. So they're like five Canadian folks up there in 1847s. The proportionate response is not to the nuke Ottawa for something along those lines. You can use force necessary to end the attack. So that was the case from 1837. It was a long time ago. It was accepted as a practice under customary international law. So many people say today, especially with the inability of UN to get it back in here, that we see this sort of rehabilitation of preexisting custom. They also say if you look at Article 51, remember I said it does say that our attack occurs when it makes reference to an inherent threat. So some of these individuals say, wait a minute. That doesn't mean that Article 51 was meant to be the only way in which force could be used in self-defense. Indeed, in the Nicaragua case, the U.S. judge on the International Court of Justice Stephen Schwaebel said, Article 51 doesn't say if and only if an armed attack occurs. Some would also point to subsequent practice. They would look at a series of deliberations in the Security Council, like Cuban Missile Crisis discussions, like the discussions after the 1967 Middle East War, like the discussions after the Israeli bombing of Osir-Gracer in 1981, and like some of the conversations that took place in 2003, part of the Iraq War, and say there seems to be an acceptance among states that if you have an imminent attack, you can use force in self-defense, even if it's before they hit you. Number of scholars have supported this over the years. Great scholar from the UK, Sir Derek Fowich, my personal mentor at Georgetown University, we have V.O. Brunner, and then Minors with Google and Yale Law School, one of the great international leaders scholars. Now, the scholars here are probably minority. You might go back and read those Security Council debates, and when you do, you get an idea that there are a lot of states out there that seem to think if you can show the elements of attack, then it would be okay. Don't look at the Israeli attack on Iran. Under this interpretation, is there still a problem? If Israel tomorrow said, we're gonna attack these sites in Iran. Okay, if you say no, Article 51, preface to use of force, then it does. What if you say the force can be used in the event of an imminent attack? Would the Israeli airstrike, as contemplated, be lawful under that interpretation? No, okay, somebody wanna say, now we stand up and tell me why. Anybody? It's not imminent. It's not imminent, yes, it's not imminent. So if somebody might say, well, wait a minute, even if there is a right and anticipatory self-defense, in the circumstances we're talking about right now, it's Iran developing nuclear capabilities, which they say is for peaceful purposes, that's a long way from there being an imminent attack against Israel or anybody else. And that is actually what the Security Council said in a resolution after the Israeli attack of the airstrike reactor in 1981. The Security Council adopted a resolution condemning Israel, but the United States voting to condemn Israel, claiming that there was no imminent of an attack. Okay, well the problem has complicated itself a little bit more. We mentioned terrorism, we mentioned the challenge of nuclear weapons and other weapons of mass destruction. How is it complicated? Well, if you have a terrorist group or rogue state with nuclear weapons or other weapons of mass destruction, you might not get enough notice. It's not like a bunch of Canadian troops on the border. It's not like a bunch of Egyptians on the border taking out US, USB speakers and getting ready to move in. If you have a rogue state with weapons of mass destruction or a terrorist group with weapons of mass destruction, you might not have enough time to say that an attack is imminent. Well, this is what the US thought. So in 2002, and I call these people counter restrictions plus, 2002, the United States said, hey, you gotta be more preventative. We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and potentially the use of weapons of mass destruction. Weapons that can be easily concealed, delivered, covertly and used without warning. It's not a bunch of people standing at the border. It's not a bunch of ships getting ready to move out. So what does the US say? US has long maintained the option of preemptive actions to counter sufficient threat to our national security. So that's an acknowledgement that the United States has recognized historically the preemptive right of self-defense, but that goes on to say the greater the threat, the greater the risk of inaction, and the more compelling the case for taking anticipatory action to defend ourselves even if uncertainty remains as to the time and place of the enemy's attack. To restore or prevent such hostile acts by our adversaries, the US will, if necessary, act preemptively. So the 2002 massive security strategy, the US says we gotta relax that feminist problem because the world is a very messy place. We have a variety of other unanticipated actors. We have different technologies. We can't go back to the old test of saying an attack is imminent. Under this logic, counter restrictions plus, if you will, Israel could say, well, look, world's different. Once Iran starts moving down this path, once they get more centrifuges, once they start efforts to reprocess, we're ready to be too late. So we have to act now to prevent that from happening. Now you see the confusion. The question of whether an Israeli airstrike against Iran is debatable. It's debatable by scholars. It's debatable by public officials. The law is not clear. It's not a good place to be at all. Perhaps it suggests the need to develop other normative approaches to clarify some of these issues. So look at traditional just war theory. Okay. That's for fun. Let's look at another case. Let's conceptualize it this way. Begin with the notion that Syria is a message changing every second. But let's say a couple years ago, as a humanitarian crisis, by the way, probably the greatest humanitarian crisis since World War II, as a humanitarian crisis was developed, and it's clear that Bashar al-Assad has used chemical weapons against his own people, used chemical weapons against his own people. NATO says, look, we're not going to get the security council to authorize this because Russia is supporting Assad. There's no order to attack against any of our members. So order five, the military doesn't kick in. What are we going to do? Let's intervene for humanitarian purposes. Let's take Assad out. This is before the regime completely fell apart and let's see if we can install somebody to promote humanity and sanity in the area. Yeah, not advocating, that's simply saying what if. With that involved, humanitarian purpose, go in and stop the use of chemical biological weapons. Go in and stop a humanitarian crisis. And then you can think of Syria, you can say, well, what if we would have done a coal pot in Cambodia? Or if we would have done it in Rwanda, would that have been lawful? Who says no? Yeah, tell me. Back to the direction of the non-hand security council resolution. Right. You're my no-two guy on this. Yes, yeah, same thing, same thing. What's going on? Doesn't matter how much human rights are being violated. Humanitarian regimes is created by the charter. We're not acting as self-defense. And the security council as well. The security council did authorize it. It would be permissible. And in certain cases, the security council has authorized the use of military force for issues relating to humanitarian concerns. I just put some scholars up there who would support that. That's going to be your majority position again. Charter doesn't permit it, period. Would anybody say yes? Yes, it should be lawful under the charter framework to intervene. Anybody? Anybody say yes, it should be lawful to intervene to take down the authoritarian dictatorship. To stop a coal pot. To stop a Rwandan genocide. To stop the use of chemical biological weapons. Anybody say yes? Yes, please, stand up and help me out here. I think I scared everybody, yes. Okay, so he said the responsibility to protect the sovereignty that we're concerned about is the sovereignty of the people, not the state. Okay, there are many who make that argument. Still in the minority, but there are many who make that argument. They say, look, if you go back to the UN charter, the UN charter does contain Article 2, Article 51, Chapter 7, but the charter also calls upon states to promote human rights and fundamental freedoms. First time a major international document mentioned that, a local organization. First time it was mentioned as a major goal. And it even phrased it as to reaffirm faith in human rights and fundamental freedoms with the view that the faith was shaken during World War II through the Holocaust. So, some people say, why should the provisions on the use of force per se trump the provisions on human rights? Let me draw an analogy. First amendment to the Constitution of the United States says Congress shall make no law, a bridging. And it goes on to list freedom of speech, freedom of the press, and so on. Sounds absolute, doesn't it? So, Supreme Court has said it isn't absolute. The government can restrict freedom of speech. It can restrict freedom of the press. Not just you can't yell far or crowd a theater. You cannot commit slander, you cannot commit libel. You can't disclose classified information. There are all sorts of ways. Or I should say you can't. You're not supposed to disclose classified information. There are all sorts of ways that the government does that because it's a Supreme Court has said the First Amendment is not absolute. It's not a suicide act. Well, you can look at the UN Charter the same way. And you can say, look, they wanted to promote human rights in 1945, but they wouldn't know about some of these horrible violations that have taken place. They wouldn't have assumed that the provisions were on the use of force with Trump then. Some have gone on to say that there's been a revival in state practice of a customary right of humanitarian intervention. Look at the Kosovo action by Major in 1999. That was done without Security Council authorization because Russia was unable to come on board on that. And yet the international community generally thought it was a good thing. There was very little except for Russia in the way of condemnation. Maybe that means the international system is more willing to accept this. And so there are some people who say it's permissible because it falls below the article 24th Racial. And this is back to your point about the sovereignty of the people. The goal of a true humanitarian intervention is to save the people from their own government. It's not to go in and take over the country for our own sake. It's not to go into subject it to our political well, but it's rather to protect the people so it falls below. Some would argue the threshold of article 24. Once again, an important issue, a contemporary issue, one on which the law is unclear, scholars, public officials are divided. Perhaps calling upon us to think of either other normative approaches or some way to get better clarity or final case study. Great to get Osama bin Laden. Now the thing about this, what was going on here is that Osama bin Laden was the leader of a non-state actor that was responsible for the brutal attacks of September 11th. About 3,000 people were killed. And not just that, but there were a whole host of other al-Qaeda sponsored killings that had been taking place really since the early 90s. So it's not just one as big as that was. It's not just one attack, serious long-going attacks. But it was undertaken by a non-state actor. And Osama bin Laden was the ruler, the head of this non-state actor. So the first question that we have to deal with is when do acts of non-state actors rise to the level of an arm attack? The charter that didn't anticipate uses a force by non-state actors. Well, when would an action by a terrorist group rise to the level of an arm attack in January to self-defense? No clear answer, no clear answer. There's kind of a spectrum. Some people say, if a non-state actor does something in your territory like 9-11, that would be an arm attack. But we know terrorists don't always do things in your own territory. What was perhaps most jarring about 9-11 was unlike things like the bombing of the Berlin Disco attack in 1986, where Kovar towers were cold, is that it did occur in US territory, on US soil. So some scholars would say the act has to occur in your territory, otherwise it's not an arm attack. Others would say, well, it could be, as long as it's a very serious act, that's home or broader part of a pattern of actions. So some of the stuff Al Qaeda was doing before 9-11. Some people would say, look, that's ridiculous. If a terrorist does something against you, it could be small or whatever. Action in your garden is an arm attack. So someone like Abe Sofaire, who was formerly led by the State Department, would claim that more permissive understanding. Well, it's unclear. It's unclear the circumstances under which a terrorist attack can rise to the level of an arm attack. Everybody agrees, if it's a 9-11, yes, that's an arm attack. And everybody agreeing includes the Security Council. After 9-11, the Security Council adopted resolution 1368. Among other things, this is after the attacks that says recognizing the inherent right of individual or collective self-defense in accordance with the Charter unequivocally condemns in the strongest terms the horrifying terrorist attacks which took place, et cetera. This is a very important legal moment because the Charter did not deal with attacks by non-state actors. But here the Security Council is saying, after 9-11, yes, that action by a terrorist group was an arm attack, and thus the reference to the inherent right of individual and collective self-defense. But what about things that don't occur on your territory? Or sporadic things? Would they be an arm attack? The law is unclear. Another question about terrorists. Terrorists don't have states, not withstanding the assertions of ISIS to be the Islamic State. By definition, terrorists are non-state actors that are moving around. So if you're going to respond in response to an arm attack, if you're going to respond militarily, who do you respond against? Well, you can respond against the non-state actors, but they will exist in the ether. Unless they're hanging out in the high seas or Antarctica, or some such place, they're in another state. So what does that mean? When can other states be held accountable? Some would suggest that the states sponsor the non-state actors, and when the United States undertook airstrikes against Libya in 1986, in response to the bombing of the Berlin Disco Tech, President Reagan was saying that Libya was a sponsor of the terrorist groups. That may seem clear. Some states were to support them, maybe give them some financial assistance, but aren't really directing them. Could be used for to give those states. And then some states are simply tolerating them, probably because they have no choice. A terrorist group exists on their territory, and there's not really anything you can do about that. Could you target those states that tolerate terrorists? Once again, the law is unclear. If you look at the Osama bin Laden raid, you could probably make the following argument. Clearly, Osama bin Laden is the leader of our powers, responsible for an act that occurred in the US that resulted in high casualties. Art Attack, affirmed by the Security Council. Osama bin Laden was in Pakistan. Pakistan know about the raid. Did Pakistan give permission for the raid? If they gave permission, there's not a problem. It's debatable whether there was permission or not. Could you then say that Pakistan was tolerating Osama bin Laden, that's allowed you down in the territory? Some have said that Pakistan in any case was unwilling or unable, and so that should allow you to respond in self-defense, otherwise it's not an effective right. If you prevent it because he exists in a state that is not helping out, it means we get up a question. All right, come on, I don't think we can talk about it. We looked at the Charter Framework, and we have explored the challenges that have confronted the Charter Framework. And we've looked at least at three case studies where we see that there have been efforts to try to understand the law in the weight of the Charter Framework, and that there are on so many issues, like preempted self-defense, like humanitarian intervention, like response to terrorists, a lot of disagreement. The law is not clear. And you know what I'm trying to say, being here in the name of war college, one of the areas I have studied and I work on is the law of the city. And I'm a big supporter in ratification of the 1982 convention on the law of the city. I studied under somebody named John Moore at the University of Virginia, law school with the director of the Center for Ocean Law and Policy. And the one thing I've seen in the law of the city, which has been really gratifying, is there have been so many rules that have developed that are now very clear. 12 nautical mile territorial state is clearly established under international law and customary laws of law is treated. And an additional 12 nautical mile continuous zone, 200 nautical mile exclusive economic zone, various other navigation rights, overflight rights, rights of straight passage, rights of archipelagic ceilings. These rules have developed and they developed over the past 40 or 50 or 60 years that are clear. Not that every single thing about the law of the city is clear, but most of it is. The challenge with the use of force is there is so much that is just not clear. Where the law is in dispute. What does that tell us? Well, it does tell us that if we are to make some kind of normative understanding of what we should do, what policy makers should do, the law may only take us so far. Now that doesn't mean we should give up and say, okay, we're gonna do whatever we want to do, but it might mean that we should again look for other normative standards which draw upon the law. It's like it's possible or not at various with the law. But allow us to go beyond some of the gaps in the law or we fill some of the gaps in the law. 12 point I'll leave you with is this. This is article two four. All members show refraining international relations from the threat of use of force against the terror we're gonna take for your political independence of any state or in any other matter, think this is for the purposes of United Nations. The cornerstone of the charter. The question is, is it still the cornerstone of the charter if we look at state practice and I will leave you with that and Professor Cook, I think we have six minutes for questions.