 All right. Good morning, everybody. My name is Kevin Brew. I'm a Navy Captain. I'm a lawyer. But the beautiful thing about the International Law Department, I'm a JMO, a moderator too for Seminar 18. But the beautiful thing about the Naval War College is we have an International Law Department. So we have a bunch of really smart lawyers across the bridge of size with some brilliant experience, academic professors and lawyers. And so we invite them over and we have the opportunity today to hear from two of them, two of the final gentlemen I know. And I will first like to briefly introduce Professor Mike Schmidt, who I first met I think we were coming back from the Information Operations Conference in like 1996 from Maxwell when the Air Force put together this IEO. We're like, what is that really? So no one, Mike, for a long time. Mike's been, he's the Stockton Chair, Professor of Law as well as the Chairman of the International Law Department. Twenty-year Air Force sat in your seat with the number one graduate in 1996 in a similar class. He was the Dean over at the Marshall Center in Garmish. He was also a Professor of Law up in a university up in England Durham and then we made his way back to Newport. So we've been fortunate to have him here. He's been part of many working groups, cyber, things of that nature. But I think at this point I'll just turn it over to Mike and he'll enjoy walking around and please do ask him questions. Mike. Kevin. All right. I don't often get that. They don't do that in Europe. Could you please turn the volume down a little bit before I'm completely deaf? Kevin has asked me to come in today and talk about international law and the use of force and a particular aspect of international law and the use of force known by its Latin term use adbellum. Latin because lawyers need to justify their fees when they charge you. The use adbellum must be distinguished from another body of law known as the use in bellow. Now the use adbellum and that's what I'm going to talk about today is about when may states use force. When may a state, for example, resort to self-defense? When may a state come to the defense of another state when that state has been attacked? When may a state, for example, engage in a humanitarian intervention because there's some sort of trauma occurring in another country? When can a state engage in, for example, drone operations in the event the other state is consented to those drone operations? That's what we're going to talk about today. We're going to go through the stations of the cross with regard to this body of law and then look at a number of controversial case studies. I'm not going to talk about the use in bellow which is also known as the law of war or international humanitarian law or the law of armed conflict and that's how may states fight once they're in the fight. Irrespective of whether or not they're there legally, what are the rules of the game? Who can they shoot at? What can they shoot at? What weapons may they use? How must detention be conducted and so forth? That's a different body of the law. It comes from different treaties. It's not the subject today but I'll be happy to answer any questions you have about that as we go on. Now, if we're talking about the use ad bellum, then the mother of all rules, the rule in the use ad bellum is this. It's found in the United Nations Charter which sets forth the core rules on the use of force. It's article two, subparagraph four, known by lawyers has the two-four rule. The two-four rule is very simple. It says, look, if you're going to be a party to this body, the United Nations, then you have to agree to refrain from using force against other states, against their territorial integrity, against their political independence, or most importantly, most importantly, you must agree not to use force contrary to any purpose of the United Nations. Now, that last clause is the most important one. In 1945, what people thought article two-four was about was about invading other states. That's why it says territorial integrity and political independence. It was the aftermath of World War II. But today, that's not what we're worried about. We're worried about the other clause because what the other clause means today is that you may not use force consistent with international law unless there is an exception found in the United Nations Charter. Now, there's two other things to note with regard to this particular article. In 1945, the law was that you may not use force. But if you look at the article, what the article tells you is that you may also not threaten to use force. It's a violation of the law to threaten to use force against another country. Now, be a little bit careful because, of course, we threaten to use force with some frequency. And we're not doing so unlawfully. You may not threaten to use unlawful force. So you may not say to a country, give us this territory or we will invade the territory and take that territory. That would be unlawful. But you could say, if you invade that territory, we will come to the assistance of the state that's been invaded in collective self-defense. We can make that threat because that threat is lawful. There's a right of collective self-defense, which I'll talk about in just a moment. The other thing you should note is that this is a provision which appears in a treaty that governs reactions and interactions between states. And so this rule is limited only to states. It's a rule that says states violate international law if they use force. It has nothing, nothing to do with non-state actors. It has nothing to do with terrorist groups. So when Al Qaeda attacks us, that's not a violation of this rule. That's a crime. And that's how it will be treated. So this is a rule that only exists to tell states you can't do this particular thing. Now, as I've mentioned, there are exceptions to this rule. And there are two. And they are found within the framework of the UN Charter. We'll talk about each of them. The first is an authorization from the Security Council to use force consistent with the UN Security Council resolution, a mandate. And the second is self-defense. You may use force to defend yourself, and we'll look at the article that governs that. Now, I've got a third bullet up here, and that's humanitarian intervention, which we'll also talk about. However, humanitarian intervention is not found within the framework of the Charter. In fact, it's not found in any treaty whatsoever. But there's a good argument, I happen to buy it, that humanitarian intervention is today lawful with strict criteria. But again, we'll talk about that in a moment. Let's begin at the beginning with Chapter 7. Can you open it for me? Oh, God bless you. Army Ranger. Okay, let's talk about Chapter 7. This is a mandate under the Security Council. It's called a Chapter 7 authorization. And the reason is, in the UN Charter, it happens to be Chapter 7. By the way, you should distinguish this from Chapter 6, which you will probably learn about in the coming week. Chapter 6 is about operations that are not forceful, peacekeeping operations. Chapter 7 is what's known as a peace enforcement operation. In other words, you're going to use force, and that force may be used without the consent of the state where the operations are underway. So the very first step in a Chapter 7 operation, in fact, the very first article in Chapter 7 is Article 39. Article 39 is very, very important. Because Article 39 is the article which tells the Security Council when it can begin to handle the situation somewhere out there in the horizon. The Security Council can address situations in three cases. When there is a threat to the peace, when there is a breach of the peace, and when there is an act of aggression. A breach of the peace and an act of aggression is not a distinction you need to really know about. It's a lawyer distinction. Basically, it means a state's using force against another state. The other provision, threat to the peace, is very, very important. And the reason is, is because threat to the peace is not defined anywhere. So in answer to the question, what is a threat to the peace, such that the Security Council can then begin to take the situation, then begin to address the situation, the answer is a threat to the peace is whatever the Security Council says it is. So if it says, for example, if they pass a Security Council resolution, that says law professors who wear pink shirts are a threat to international peace and security, that's good enough. That is in fact, as a matter of law, albeit not fact, but as a matter of law, that's now a threat to the peace. And what that means is the Security Council can start dealing with the situation, can start remedying the situation, can authorize the use of force to force them out of the pink shirt, and into a light blue shirt. This would be perfectly lawful. The other thing you need to note about this article is the last clause, maintain or restore international peace and security. The Security Council was seen to be the policeman in 1945. I mean, you would go to the Security Council and the Security Council actually would have military forces, that never happened, but would have military forces and they could send those military forces in action. In the event there was insecurity in the global environment. So in Article 39, whatever the Security Council decides, whatever measures the Security Council authorizes, may only be for the purpose of maintaining international peace and security. The Security Council cannot authorize measures to punish someone unless the Security Council can articulate the connection between the action and trying to maintain peace and security. So for example, the Security Council has authorized a tribunal to handle war crimes in the former Yugoslavia, another tribunal to handle war crimes in Rwanda. That's not technically punishment. That's the Security Council acting to maintain peace and security. The Security Council cannot retaliate for an action. So the only thing the Security Council, and we'll see it was very important in the first Gulf War, the only thing the Security Council can do is take an action or authorize an action that's designed to let things settle down so that diplomacy can do its magic. Now that's Article 31. And what I'd like to do is as we go through the article show you a couple of resolutions from the first Gulf War. And the reason is the first Gulf War was the war where we actually used in Chapter 7 has our legal justification. So that was Article 39. Iraq invades Kuwait on the 2nd of August, 1990. And on that very day in New York, the Security Council meets. And the Security Council in Resolution 660, we'll see 660 again, the Security Council says there's been a breach of the peace. In other words, there's been a use of force by Iraq's invasion of Kuwait. That's very important because what that resolution was, was a resolution that said, we have the stick. We're in charge now. We're taking control of this situation and we'll be the ones authorizing action. Now after Article 31, once the Security Council has said, listen, this is a situation which threatens peace or breaches peace or is an act of aggression. Once the Security Council says that, then their next step is found in Article 41, which very importantly only authorizes non-forceful measures. So 39 says, we have a situation. We're in charge. 41 says, okay, now we have to consider non-forceful measures. These may include on the PowerPoint is actually from the Charter. These are examples set forth in the Charter. The most common economic sanctions. Okay, the most common economic sanctions. Now in the 1st Gulf War, these were tried. There was a resolution that was passed imposing economic sanctions on the Iraqis, particularly with regard to oil exports. That did not work very well. So another resolution was passed saying that we could use force and maritime operations to intercept illegal trade that the Iraqis were engaging in. That did not work very well either. But in that case, the Security Council, after taking 39 action, took several Article 41 non-forceful actions. The next and perhaps the most important article is Article 42. Article 42 is the use of force resolution. What Article 42 tells us is that the Security Council has determined that the Article 41 measures did not work or alternatively that if they try Article 41 non-forceful measures, that's not going to work. And the most common case would be a case where one state is invaded another and they want to authorize defensive operations and it just wouldn't make sense to say has the conflict is ongoing. Let's impose economic sanctions. Maybe that will work. So it basically says you have to try non-forceful measures unless the situation is such that it would be really dumb to do so. And if that happens, if the Security Council affirmatively makes that determination, then they may authorize military action. And that's non-consensual military action. As I mentioned a moment ago, the distinction between peace keeping and peace enforcement is under Chapter 6. You need the consent of the state where the operations are ongoing. Under Chapter 7, you obviously don't need consent because you're going to use military force against the state that's in violation of the law. But again, look in Article 42 and it tells us that the only purposes are maintaining or restoring international peace and security. Maintaining in a situation where you're dealing with a threat to the peace and you want to make sure something doesn't break out or restoring in the event you're dealing with a situation in which there's already been military action and you want to get the folks to knock it off. Here's the resolution from the first Gulf War. It's a very, very famous resolution. Resolution 6.7.8. Very, not only famous, but very interesting resolution. First, it authorizes member states who are operating with Kuwait to use all necessary means to restore international peace and security if the Iraqis don't get out of Kuwait by January 15, 1991. Now let's look at that a little bit. First, it's authorizing member states cooperating with Kuwait. This was very, very, very unusual. Anyone know why? There was a particular reason that they came up with this language. The reason is because they did not want Israel to use force. Because a coalition had been formed that included states like Syria. If you were old enough to remember the operation, the Syrians provided lots of troops in the first Gulf War. And so the Security Council was extraordinarily worried that if the Israelis became involved, this would rupture the coalition that had been formed. And so they put this text in and told the Israelis, this doesn't give you authority to do anything. Which was very, very important because once the hostilities were really going, remember, the Iraqis were trying to drag the Israelis into the conflict. They were launching Skud missiles against Israel. So this was a very important political provision. The other thing that is interesting is the January 15, 1991, there's absolutely no requirement in law to give the other side an opportunity to move back into compliance with international law. But in this case, that's exactly what happened. And in fact, the operations did not commence, I think, until January 17, two days after the deadline had expired. Then you have the text All Necessary Means. All Necessary Means is UN Speak for Use Military Force. So when you see a resolution, and in the resolution it says All Necessary Means, this is a green light to use military force to accomplish whatever purpose, it's called the mandate, is set forth in the Security Council resolution. In this case, it's to accomplish or it's to implement resolution 660, resolution 660 said there had been a breach of the peace and you guys have to leave Kuwait. And so this is the authorization to use military force to expel, in this case, the Iraqis from Kuwait. And then finally, the restore international peace and security became very, very important. Because if you remember the way the war went, there was an extended air campaign and then a very, very brief ground campaign, and the Iraqis were being pushed north. So they were pushed out of Kuwait and they were being pushed north in Iraq and President Bush determined that once they were out of Kuwait, and once their military capability was significantly degraded, then international peace and security had been restored. So in answer to the question, why did they not march on Baghdad, it's because President Bush, the elder Bush 41, made the call that, well, I think that the resolution only allows us to restore international peace and security. There are no Iraqis in Kuwait. The Iraqi military has been beaten up pretty bad. I think we've restored international peace and security. Now, that didn't work so well, as you know, the Iraqis then seized the opportunity to move against the Marsh Arabs in the south, and the Kurds in the north, and so the United States and coalition partners like the United Kingdom and France then conducted extended no-fly zone operations in both the north and the south, and of course then there was a war in 2003. So in retrospect, it did not appear at all, as if international peace and security had been restored, but the president and his advisors made the call in April of 1991 that it had been, and therefore they had no further legal authority to continue north. All right. The second exception found in the charter is self-defense. It is found in Article 51 of the charter. This was a key when the charter was being framed in 1945. This was a key and the reason is, is that states like the ideal of this security council thing that would have authority to respond to threats to the peace, breach of the peace and acts of aggression, but they were born at night, but not last night. They were cautious. They wanted to retain the right to defend themselves. So this article is the article which cinched the deal. Okay, we'll create the security council, but wait a minute. We want to be able to defend ourselves in the event the security council does not work, which in fact, it arguably still today doesn't work. It certainly didn't work during the Cold War. It gave states a right to individual self-defense. State A has attacked me. I can respond to State A, but it also gave the right to collective self-defense, meaning one state can come to the defense of another. That is, for example, the basis for NATO. If you look at Article 5 of the North Atlantic Treaty, it specifically references Article 51 of the Charter. NATO is a collective defense operation created in the aftermath of Article 51 of the Charter. There has been some controversy about the collective defense provision. The United States provided some assistance to countries like El Salvador against the Gorellas in the 80s. In providing that assistance, they conducted military operations against Nicaragua. Nicaragua took us to the International Court of Justice where we made an argument, realized we were going to lose, withdrew from the case, and then the court held against us. But the important provision with regard to collective self-defense was, we said, well, what we're doing is engaging in collective self-defense against Nicaragua because Nicaragua was supporting Gorellas against Honduras and El Salvador, and the court said, oh, okay, that makes sense. Can you show us the request from El Salvador, Honduras? Can you show us the request where they asked you to come to their defense? So we quickly made a phone call, they wrote out a request, gave it to us, and the court said, nope, that doesn't work. The request must be prior to the use of collective or military force and collective defense. So today, pretty much everyone acknowledges that you can act in collective self-defense, but the state, which you're acting on behalf of, must make a request to you in advance. Now, you only have the right to engage in self-defense or collective self-defense until the Security Council becomes what lawyers call seized of the situation. In other words, they take control of the situation. That has never happened. The Security Council has never said, okay, okay, okay, we got it. Your self-defense, turn it off. Now, if you're engaged in military operations, we'll have to authorize those operations through Chapter 7. That's never happened, and because of political reasons within the P5, the permanent five members, I doubt that will ever happen for the foreseeable future. Now, that Article 51, that's all the law. You saw the entire article. So the question is, what does that right of self-defense mean? When can you engage in self-defense and so forth? The International Court of Justice has answered this question in a number of very famous cases, one involving nuclear weapons, for example. And the International Court of Justice has said there are two criteria for the lawful use of self- defense. The first is necessity. The principle of necessity is very simple. It means that you resorted to force in self-defense. You resorted to force in self- defense against an armed attack because there was nothing else you could have done. In other words, you can't resort to military force if there's some other means of resolving the situation. And that use of force must be proportionate. Now, be a little bit careful because you're military officers, when you think of proportionality, what you think of is the use in bellow rule, the law of war rule, which has to do with civilian casualties. You may not engage in a military operation if the likely civilian casualties are excessive relative to the anticipated military advantage. That's a rule of the law of war. That has nothing to do with this. Civilian casualties are irrelevant when we're considering this particular rule. What proportionality means in this context is you may do no more than required to defend yourself. So if there is a border incident, a serious border incident, of course, you can defend your borders, but this doesn't mean you can invade and conquer the other country. So your response must be sensible with regard to defending yourself. Now, sometimes that may be grossly excessive relative to what they did to you. And sometimes you can defend yourself by using much less force than they used against you. The answer is you can only use that force that's necessary for you to effectively mount a defense and no more. The bullet on immediacy, which is also known as imminency, is something that the International Court has never addressed, but it deals with when you can conduct defensive operations. It actually comes from a very famous case in the 19th century that involved the British armed forces coming into the United States to seize a vessel called the Carolin that was being used for an insurgency. There was a rebellion in Canada called the McKenzie rebellion. And so the Brits came into the United States, seized this vessel that was being used in the rebellion, and then because the Brits got a lot of class, then what they did was they set the Carolin on fire and sent it over Niagara Falls with everyone watching. So it was a pretty good message. If you're talking about signaling, that works pretty good. But at any rate, this body of law emanates from this case, this 19th century case that everyone knows, and it says this, look, you can defend yourself. You can even defend yourself before they attack you because you don't have to take the first shot. But there's got to be some relationship between the time you act and the need to defend yourself. In other words, you can't defend yourself too early. You can't just look out there on the horizon and say, I think those guys are dangerous, and therefore I'm going to strike now. That would be unlawful. You have to get to the point where they're going to attack you, and then you strike to defend yourself. I'll talk about it in just a moment in a little more detail. The other piece of the when can you engage in self defense is after the fact. You've been attacked, and you want to respond. You want to act pursuant to Article 51. You want to defend yourself, but you got to act kind of at a time that makes sense that you're still defending yourself and not just striking back. If you want to understand these rules, you should think of just your regular, I know most of you are Americans, but it applies to every country in the room. The rules of self defense on the streets of Newport. If I'm in the streets of Newport and I see you down the street, you're a very dangerous looking guy. You look deadly to me. I become frightened. Can I then shoot you as you come down the street? Of course not. That's too early. But if you come to me, okay, what's that? It's not proportional. That's also not proportional, but I assumed he had a gun, a big gun, a really big gun. He's from Texas. I am too, so it's not a shot against Texans. However, if you come towards me and then you make threatening gestures and it looks like you're going to hit me, can I defend myself? Of course I can defend myself. It's exactly the same way with states. And now you have attacked me, okay, and because you're much tougher than I am, you knocked me to the ground, I'm unconscious, I'm lying there. Can I then wake up, say, who was that guy? Well, that's Bill. He lives down on the point. So I drive to your house and I strike you. Is that self defense? No, it's not self defense in Newport. It's not self defense in Belgium, and it's not self defense in international law. That's punishment. That's retaliation. But in the course of you attacking me, can I strike back? Yeah. Or if you knocked me to the ground and you're still there, can I stand back up and strike you? Of course. Exactly, exactly, exactly analogous in international law. Now, with regard to self defense, this was of course the classic example. We've talked about Chapter 7 in the First Gulf War, but the First Gulf War, before the resolution passed, the Emir of Kuwait actually wrote a letter to the President of the United States and said, can you come to our assistance in rather in collective self defense? We've been the victim of an armed attack. Under Article 51, can you come to our assistance? So we see these two tracks. The war starts or the conflict starts out. In August 1990, it's all about self defense. In November of 1990, resolution 678 is passed. Now it switches to a Chapter 7 operation. Now, this timing thing has become relatively controversial because of the 2002 national security strategy issued by Bush 2, Bush 43, issued by his administration in the aftermath of 9-11. In fact, the national security strategy was issued much earlier, it shouldn't have been issued much earlier, but because of 9-11, they wanted to rethink our national security strategy, so it was not issued until September of 2002. Now, traditionally, the timing on self defense had been understood to be a question of timing. It was what we call in law a temporal standard. So a month would probably be too early, a week, maybe not so wrongful. You could probably defend yourself in anticipation of an armed attack being launched against you the day before the attack was launched. So it was all about did those guys act too early in terms of hours or days or months? It was about looking at your watch and about looking at the calendar. This was the classic understanding of anticipatory self defense, responding to an action or not responding, anticipating an armed attack and acting before you took the first shot. Now, President Bush in the strategy kind of rethought that. And what he said in what I find to be an extraordinarily sensible, logical argument was, yeah, that was fine when military forces lined up on the border. When they had to mobilize troops, they had to ride trains to the front, et cetera. That was what the law was designed to do. But that's not the way the world works today. Today, we may be struck by a non-state actor, for example, without warning. And that blow could be catastrophic because of weapons of mass destruction. And so he said, the old standard, it doesn't make any sense because the first warning I have of an armed attack occurring or about to occur is when it actually does occur. That doesn't make sense. So what he said here is that we're going to act against emerging threats before they are fully formed. Again, very sensible. But this caused a big, big, big brouhaha in the international law community. I mean, everyone went nuts when he said this. This was classic Americans, especially that Texan guy, Bush, redefining international law. Who do they think they are? Blah, blah, blah, blah, blah. In fact, I believe that what they were doing was just applying the existing body of law in a more sensible way to the current circumstances. And we always do that. So for example, in the cyber realm, I do a lot of work in the cyber realm, we are producing documents and manuals and so forth. But we're doing so based on existing law and saying, OK, we've got existing law. Let's apply it to this new situation. Let's let's do it in a way that makes sense. So what he was doing was making sense. So I wrote an article which is caught on. I think the State Department has adopted it entirely. The Defense Department knows about it. And this is my standard. My standard is you can act in self-defense in the last feasible opportunity, last window of opportunity in the face of an attack that's almost going to certainly occur. That requires the confluence of three things when you're going to act in anticipation of the attack. First, the guy you think is going to attack you, the state you think is going to attack you. They have to have the capability to attack you or it must be almost there. Obviously, I'm thinking of Iran. Secondly, it's not just about them having the capability to attack you, but they have to intend to use that capability. Otherwise, states would be invading states all over the world on the basis of self-defense because the other side looks like they could attack. You have to wait before you act militarily. You have to wait to the point where that other side is going to use it. And then finally, final opportunity, even if they have the capability and even if they intend to use that capability, you got to let all the non-forceful means kind of play themselves out. In other words, you can't act militarily until the point where you believe, reasonably believe that if I don't act now militarily, it's going to be too late. That's the moment at which your right of self-defense matures. Now, there is a third exception, maybe, and it's humanitarian intervention. The word, the term humanitarian intervention is found in no international law treaty at all, at all. However, I would argue that... Whoops. I would argue... I would argue that there is state practice which shows us that states have now accepted that there is a legal right to engage in humanitarian intervention in certain very limited circumstances. What is that state practice? Well, the UN Security Council has approved humanitarian interventions on a number of occasions, most recently with regard to Libya in 2011 with Unified Protector and Odyssey Dawn. Now, that doesn't tell us everything because what I told you earlier was a security council could say there's a threat to the peace and launch a response. So that was lawful under Chapter 7. However, it shows you that they're very sensitive to the notion of humanitarian intervention and, in fact, on two cases, in two cases involving interventions by ECOWAS in East Africa, Liberia and Sierra Leone, there was no authorization to intervene by ECOWAS, but after the fact the President of the Security Council wrote letters praising the action, then giving them authority to actually monitor the situation. So this, again, seems to suggest the acceptance of, in clear cases, the right of humanitarian intervention. Then, as you know, we engaged in operations against the Federal Republic of Yugoslavia in 1999 because of what Milosevic and then the Yugoslavians today, the Serbs, were doing vis-a-vis the Kosovo Albanians in the area of Kosovo, in the region of Kosovo. We engaged. And although there was no Security Council resolution because the Russians and the Chinese would not come on board, nevertheless, we're talking about pretty mature states, pretty states that are pretty committed to the rule of law. I mean, regardless of what people think about the United States, I think it's pretty clear that Luxembourg is not seen as a violent lawbreaker on the international scene. You have to remember that the operation was approved by all the members of NATO. At that time, there were 19. So here we see 19 states that are pretty lawful engaging in a humanitarian intervention. And then there have been cases where the international community did not engage, did not conduct a humanitarian intervention. And what happened? Massive criticism. Of course, I'm talking Rwanda and Darfur. So in my view, today you can make a colorful argument that there is a right of humanitarian intervention. The question is not whether there's a right of humanitarian intervention. It's when does that right mature? Do you have to wait to a genocide is ongoing? Can you intervene when you think a genocide is about to be launched? So these are the questions, not rather the right exist. Now, let me talk about some case studies that will apply the rules that we've just talked about. So the use of force framework is not particularly complicated. Chapter seven, you need authorization from the security council, self-defense or collective self-defense, perhaps humanitarian intervention, as I mentioned out the outset, if another state consents to the use of force on your territory, that's generally okay as well. So let's look at the case studies. The first was Afghanistan, 9-11 Afghanistan and self-defense, operations against not the Taliban, not yet, but al-Qaeda, okay? Now, there was a problem. Everyone remembers where they were in 9-11. I was at the Marshall Center. We were conducting actually a briefing like this to some foreign general officers and I was asked the question, what just happened? And my answer was there's been, it has a matter of law, what we have seen was a horrendous criminal act. It did not occur to me to say what we saw was an armed attack under Article 51 of the Charter. However, very quickly, the international community started treating this as an armed attack under Article 51. The reason I said law enforcement is because at least to me, Article 51 was about one state against another. It wasn't about non-state actors. The UN Charter is about interstate relations. However, the international community took a different view very quickly. We see two Security Council resolutions, one in the immediate aftermath of 9-11 and one two weeks later. You can never trust resolutions to happen in the immediate aftermath of an event because you don't know if it's just an emotive response. But two weeks later, after everyone had had a moment to reflect, they pass another resolution, 1373, which talks about the inherent right of self-defense. And at this point, no one thought that a state had done it. No one thought a state was behind it. Everyone knew it was a terrorist group known as Al-Qaeda. NATO and other allies, other groups came on board and said, we will assist you. Do you remember NATO offered up AWACS to the United States, for example? NATO came on board and said, we will assist you pursuant to the right of collective self-defense. Article five of the Charter, which remember refers to Article 51. More over 48 different states immediately offered bilateral assistance that ranged from using military forces to overflight rights. And then finally, after we began operations against Al-Qaeda in October, after we began those operations against Al-Qaeda in October, the Security Council continued to pass resolutions, reaffirming the earlier resolutions that had referred to the right of self-defense. And so it seems to me pretty crystal clear that today it's lawful to use Article 51, Authorization, Military Force Against Non-State Actors. Now, I will tell you that the International Court of Justice is a little bit nervous about this, okay? They're nervous about primarily Americans going around the world and intervening, shooting up non-state groups around the world on the basis of self-defense. So in a couple of cases, one involving the Congo, a conflict in the border between Uganda and the Congo, and another involving the famous Israeli wall, which is actually a fence. But in those two cases, the Security Council has kind of, I'm sorry, the International Court of Justice has kind of walked it back and said, no, no, you can't use Article 51 against non-state actors unless the non-state actors were sent by a state. I will tell you a number of critical judges on the court, key judges, the American, Bergenthal, the British judge, Ross Higgins, the Dutch judge, Quagement, issued fiery dissents in this case and said, that's absolutely wrong. Didn't you see what happened after 9-11? The international community is on board with this Article 51 being used against terrorist groups, non-state actors. You guys have ignored history, and I think they're right. I believe has a matter of law today that you may use Article 51 against non-state actors, and so do most states. It's certainly the policy of the United States that that is so. If we look at that particular operation and we apply the criteria just by way of illustration, we can answer the questions. The first is, did it comply with the criterion of necessity? In other words, did you have to resort to military force or would non-forceful measures have worked for example, could you have used law enforcement against Al-Qaeda? Well, that's an easy question to answer because the largest law enforcement operation in the history of mankind was launched in response to the 9-11 attacks, and it didn't work because there were follow-on attacks and Osama bin Laden got away and so forth. So clearly by October, using military force was appropriate because non-forceful measures would not have sufficed. Was it proportionate? Now we got criticized because in response, we conquered the entire country of Afghanistan and people were saying in the process of conquering the country of Afghanistan, you killed more civilians than were killed on 9-11, et cetera, et cetera, et cetera. That's misunderstanding the principle of proportionality. The principle of proportionality says you may do no more than necessary to defend yourself. And in this particular case, we needed to, I think we make a fair argument that we needed to deprive Al-Qaeda of other terrorist groups of abasive operations in Afghanistan. So conquering the country was proportionate. What about imminency? Well, it was only a month later and that was an extremely rapid response in any event to get to a place like Afghanistan and moreover, they were still conducting operations against us from Afghanistan, has demonstrated by the attacks that were led or masterminded by Al-Qaeda that happened even after we entered Afghanistan. Today, we are not there in self-defense. You should understand that. The law in Afghanistan today is not self-defense. We are there at the request of the government of Afghanistan in their technical term as non-international conflict, internal conflict with the Taliban. Technically, if they ask us to leave tomorrow, which reading the papers, that could happen, if they ask us to leave tomorrow, we would have no legal authority to be there, okay? So, completely different situation today. Now, in October when we conducted operations, we contemporaneously conducted operations against Al-Qaeda and the Taliban. And this was kind of problematic because we had been attacked by Al-Qaeda, but not by the Taliban. Now, the standard for treating the actions of a non-state actor, a terrorist group, has the actions of a state. Was set forth in a very famous case that I mentioned earlier involving the United States, it was the Nicaragua case. And there they said, listen, if a state sends terrorist insurgents against you, or if they're substantially involved, then you can treat the actions of the terrorist or the insurgents as if they were the actions of the state. And you can respond in self-defense against the state itself, not just against the terrorist or insurgents. This is known as the effective control test which says the state must have effective control over the group, which means that the state tells the group what to do. Go conduct this operation. It does not suffice if a state is simply providing weapons, for example, or training or logistic support to the terrorist group. They gotta be saying, go do this. But if they do, then you may respond with use of force against both the state and the non-state actor. Now in Afghanistan, the Taliban clearly had not risen to that level. What they were doing was providing sanctuary and the United States said in its notification to the security council that we were applying our right of self-defense in Afghanistan. What we said was, well, we're doing this because Afghanistan has offered sanctuary, a base of operations to al-Qaeda. I will tell you that's very, very controversial. This notion of offering sanctuary to bad guys has, it is clearly wrongful. It's clearly a violation of international law. But whether it opens the door to other states striking at you on the base of that sanctuary remains very, very controversial. And the United States is one of the few states which continue to maintain this position. What about Iraq? You should be confused by breach of ceasefire up on this slide because what you probably believe is it was about defense against the weapons of mass destruction. It was about defense against potential terrorists. The Saddam Hussein was supporting terrorists, et cetera. That's probably what you thought. In fact, the legal basis was completely different. It was what is known as breach of ceasefire. Negroponte was at the time our ambassador at the United Nations and when he notified the United Nations, the president of the Security Council that we were engaged in defensive operations, what he said or operations, military operations, what he said is, look, there was a resolution 687 in April of 1991 and it was a ceasefire. And the ceasefire had terms and the Iraqis have breached the terms of that ceasefire. They've broken the contract, if you will. So just like at your apartment, if the landlord quits providing you water and heat, deals off. It's exactly the same and that's been the law for well over a century in international law. So we had a ceasefire. It was in April. They broke the deal and they broke it in what's called a material way, which means it wasn't a little break. They broke it in a big way. They broke it in a big way and so therefore, just like your apartment contract, I can say on the other side of the deal, I can say deals off, fights back on. This was the legal basis for our operations in Iraq. Just to go through the resolutions, I've shown you 660. 660 says there's been a breach of peace. 678 says you get to, I showed you that. It says you get to use all necessary means, which you can use force, means you can use force. In 687, I've just mentioned that. There's a ceasefire. The security council recognizes it. And in Resolution 1441, the security council in 2002, November of 2002 says, hey, there was a ceasefire deal in 687 and you guys are breaching it by virtue of your support to terrorists and by virtue of your non-cooperation with the weapons inspectors. And so there was a breach and so now that there has been a breach declared, by the way, not by the United States, but by the security council, which at the time, I believe, was chaired by the Germans and of course states which criticized us afterwards, France would be an example, they voted that there had been a breach. So others determined there had been a breach and we simply said, okay, there's a breach. So fights back on. This is, I think, I believe, an unassailable legal justification for Iraq. It does not answer the question of whether the Iraqi operation was a good idea, whether it was a politically astute thing to do, whether it was appropriate when you were engaged in the fight in Afghanistan to defy your forces. It doesn't answer any of those questions, but with regard to the question of what were US operations in Iraq unlawful, the answer is, I believe, clearly no. Now, what about drone operations? Very, very controversial, still an ongoing debate in the international law community. Let me tell you what I believe the law to be. The first thing is that if another state consents to your conduct of military operations in their territory, in this case, drone operations against al-Qaeda or al-Qaeda affiliated organizations or the Taliban in Pakistan, for example, if another state consents, then it's lawful. At least it doesn't breach the Yusuf Belem. It may be unlawful because of the way it's conducted, but the fact that it's being conducted is not unlawful. However, states don't always consent or may, as in the case of Pakistan, withdraw consent. When that happens and the terrorists, the non-state groups that are conducting operations against you when they are on the territory of another state, the first thing you need to do is say to the other state, listen, you have an obligation under international law to police your territory, to make sure that your territory is not used to the detriment of other states. Comply with that obligation. If they, and you have to give them an opportunity to do so, albeit an opportunity that's consistent with your right of self-defense. In other words, if they're conducting continuing attacks against you, you don't have to spend a lot of time waiting for the other side. You don't have to keep taking hits while the other side is fumbling around trying to figure out whether or not they want to address the situation. But if after giving them an opportunity that is appropriate in the circumstances, they are either unwilling to do so, maybe because they sympathize with the group or unable because they simply lack the military capacity to conduct those operations, then you may penetrate their territory for the very limited purpose of operating against the group, defending yourself. And your, before you do that, you have to comply with the two requirements that I mentioned earlier with regard to self-defense necessity. In other words, only military options will solve this problem for you and proportionality, don't mess with the local forces, keep your operation limited, defense is limited to that which you can do, which you need to do in order to defend yourself, so don't go large, go small, conduct the operation and then leave quickly. Another use of Belem question that has come up is Stuxnet, okay, moving to the cyber realm. The facts, the somebody targeted Iranian nuclear assets by using malware to damage 1,000 centrifuges, there are allegations, there is speculation that this was conducted by the United States and by Israel in an operation known as Olympic game, I don't know the answer to that question, okay? But let us assume for the sake of argument that in fact, a state, either us, the Israelis or somebody else, a state conducted this operation. The question is, well, would that be a violation of Article 24? Is that an unlawful use of force? There was a group, I was the director of the group that conducted a three year study resulting in a document called the Tallinn Manual, which is the law of cyber warfare. And what we concluded is that if an operation injures or kills persons or damage or destroys objects, then that operation is a use of force. So in the Stuxnet operation, because the centrifuges were physically damaged, that was, in my view, if a state did it, clearly a use of force and could only have been justified through a security council authorization, which there clearly wasn't, or if there was a justification in self-defense. There, I'm not so sure, I'm a lawyer, so I can argue any side of the case you wish, but I think you could make an argument that if in fact the speculation about the United States and Israel is accurate, then the Israeli action could be justified in self-defense, anticipatory self-defense, arguably because remember, I'm a denigrad in charge at that time is making all these claims that Israel has no right to exist, blah, blah, blah, and he's developing this capability. And if he gets that capability, then they may be at the point where the Israelis can't take the capability out. So you could make an argument that the Israelis had a right to act in self-defense and that if the Israelis asked us to assist them, then we have the right to do so in collective self-defense. All very speculative without knowing the facts that I hesitate to offer a view. I will tell you though that it raises an interesting question in self-defense. Let's assume a state did it. Let's assume it was a violation of the use of force. Let's assume that it wasn't justified in self-defense. You can ask yourself a pretty good question on whether or not use of force is sometimes authorized even though it hasn't met the self-defense criterion in order to avert a greater use of force. Because remember what was happening in this case. The Israelis were saber-rattling. The Israelis were saying, hey, we're gonna take that capability out. We're gonna go to war with them. We're gonna use kinetic means to destroy the Iranian nuclear capability. You can ask yourself a question of whether international law should tolerate a lesser use of force, this is a relatively low level use of force in order to avert a greater one. But this question has not been answered in international law. And then finally, and then we'll move into questions, the Ukraine. There are two possibilities with regard to the Russian operations use of force. There's clearly a use of force in the Crimea. The first option is that it's lawful. And this is the Russian argument. And the argument goes like this. Yanukovych was thrown out of power, if you will, by a group of rebel forces. And he asked the Russians to come in to assist him so that he could resume his position. Now, this is not a ridiculous argument at all. In international law, it is often the case where one state will ask another state to assist it in its internal conflict. Don't forget that's what we're doing in Afghanistan today. That's the legal basis for our presence. That's ISAF's presence in Afghanistan. So it's not a completely crazy argument. There are some problems, and the biggest problem is that under international law, when you're asking who is the state? What is the government? What you generally look for is the entity, not the good entity. It's not about Yanukovych bad and these other guys are good. They're pro-Westerners good. It's not about that. It's about who has the most effective control over the territory. So today, the Ukrainian Armed Forces are responsive to the government in Kiev. The government in Kiev seems to be exerting political and governmental control over most of the Ukraine, including the Eastern Ukraine. It seems to me that if I'm asked, has a matter of law, which is the government that is in effective control of the state? The answer today is it's the government in the Ukraine. And most states are treating them as if they are the legitimate government. And if that's the case, Yanukovych doesn't have the right to invite the Russians in. And I happen to believe that is the case. In my view, the Russian activity was a use of force and an armed attack. It was a use of force, certainly as soon as they crossed the border without the permission, as soon as military forces crossed the border without the permission of the Ukrainian government. And it's an armed attack because they're clearly using force. They've seized Ukrainian military bases and so forth. So in my view, the Ukrainians could clearly resort to self-defense against Russian forces to expel the Russians. And in my view, the Ukrainians could clearly seek assistance from other states, whether that be the United States or certain European countries to expel the Russians. But that's just my view. An interesting question which has not been asked very much in the press, but is very interesting to international lawyers, is the Ukraine at war with Russia? Now, this is a question of the use in Bellow, that other body of law, but I just thought you would find it interesting. In my view, there's absolutely not a scintilla of doubt that the state of Ukraine and Russia are at war today. And the reason I say that, and by the way, at war is kind of a lay term, the technical legal term is in a state of international armed conflict. And therefore, all the rules of the law of war, all the rules of the use in Bellow with regard to detention and attacks apply. Why do I say this? Because the legal standard that's been set for, when does a war exist between states is set forth in the second article of the four 1949 Geneva Conventions and it specifically says that there is an international armed conflict when the troops of one country occupy the territory of another country even if there are no hostilities. I mean, the provision actually says that. So in my mind, there's absolutely no question. Now we have had hostilities because Russian forces have forcefully seized Ukrainian military bases. So using the lay term, not the legal term, are Russia and Ukraine at war today? Absolutely no doubt whatsoever. And with that, I think we'll open it up and I'll be happy to take any questions that you may have. Yes, sir.