Dr. Wells is a partner with TKC International UC, Middleburg, Virginia.
The United Nations has been the fulcrum for international peace since World War Two. Despite the United Nations’ inherent weaknesses, the procrastinations, machinations, and individual agenda of member states it has, unlike the League of Nations, survived. Its strengths and weaknesses are well known and well analyzed. The Security Council and General Assembly, and its other main body, the International Court of Justice, can only do so much, constrained by the inherent limitations that were imposed by the founding members, the Great Powers. The world has to Jive with these limitations unless we see a genuine shift in world attitudes to the conduct of international relations. While the driving force of the latter is likely to remain the national self-interest of key members, there is little likelihood of a shift in both philosophy and the working relations and mechanisms of the United Nations.
The United Nations came into being on October 24, 1945. The Korean War was the first major test of the United Nations. The Korean conflict bound the United States, as the real leader, with those nations whom politically, philosophically, and ethically were drawn, inevitably, to stand with the United States to ensure that the principles of the United Nations Charter survived. Fifty-seven years later the United Nations now faces one of its greatest challenges. This challenge places the United States, and specifically the United States Navy, at the forefront of world leadership and action. This challenge is the threat posed to world peace by international terrorism, and those who possess weapons of mass destruction (WMD) and may seek to use them outside the classical concepts of super power deterrence. The players are international terrorist organizations, various rogue state players, and those state players who sponsor such terrorist organizations by some combination of overt and or covert support. In addition there are those persons and organizations who support and fund such activities and who may be resident in such rogue states or may indeed be resident in states friendly to the United States.
The United States faces a major dilemma in the execution of its foreign policy in the domain of WMD, terrorism, and the rogue nations. It wants to be a positive member of the United Nations, it wants to act with its loyal allies, and it wants to pursue the U.S. legitimate national self-interest of protecting U.S. citizens, interests, property, aod American ideals and values. The latter are also inevitably tied to the key interests of its major allies, particularly with those whose relations with the U.S. go back to the Second World War. However the U.S. is at one level constrained by the politics of the United Nations, and indeed at times the policies of some states whom the U.S. seeks to either protect or with whom it is allied. Built into this set of complex relations, the legal framework of the United Nations Charter, and the ambivalent policies of some members states, are a series of constraints that make U.S. policy implementation hazardous and, at times, very dangerous for U.S. self interests.
What is required is a new and practical framework that will permit the U.S. to fulfill its policy goals while maintaining a solid alliance within the United Nations and with its key, enduring allies. The United States will never be able to please all of the member nations all of the time. It may be able to please a few of the key members and its loyal allies most of the time. The United States Navy can be the key instrument for using U.S. power in the pursuit of peace. Let us examine the basis for this doctrine and its practical implementation.
The United States and the principal nuclear powers have survived the Cold War unscathed by a nuclear exchange. Despite the rhetoric and occasional brinkmanship of the Cold War, neither the United States nor the former Soviet Union ever intended to put their ideological and military differences to a nuclear test. The inherent logic of mutual assured destruction kept sane judgement consistently on the right track. Owning weapons of mass destruction is not against international law per se, unless agreed to as a signatory to a non-proliferation agreement. The critical difference between the legitimate WMD state players, such as the United States, and the other categories, is intent. It is intent that defines their policies, organization, and actions. Just as in the criminal code of most common law nations, the notion of actus reus mens rea is the abiding principle for defining criminal behavior (where the criminal act and criminal intent must be in tandem), so in the domain of international criminal behavior does the principle apply. A player who builds a small nuclear device with the intent of using it against a third party outside the established bounds of international law, the rules of war and precedent in international state behavior, is just as guilty of criminal action and intent as if they were a common criminal by any standard defined in the common law of the civilized world. By the same argument those who would support and harbor such players, irrespective of the categories described above, are guilty of being accessories. For example, the production of a small nuclear or radiological device requires technical expertise (personnel, literature, access to information), materials, infrastructure (assembly, manufacture), finance, support (transport of people and materials), political cover and security (covert and clandestine operations). All those who participate in the above process are accessories.
There is not an international police force for patrolling the domain described above, and it is unlikely that there ever will be. The United Nations can only do what it has done to date. There can be international intelligence cooperation, the wiser use of INTERPOL, extradition, breaking international WMD financing operations and so on, but at the end of the day, this will not be enough. Organizations such as the Moussad may be good at what they do for the short-term interests of their masters. However, they are, simply, not quite good enough when dealing with the scale and scope of the problem, and are inherently skewed when viewed from the wider perspective of international relations and their involvement could be disastrous for peace and stability. The United States simply cannot afford to be tagged by association in ways that will forever blemish its world standing. In the very fragile world of the Middle East today the United States must more than ever be the honest broker for peace, and not be damned by association.
What then is the way ahead for a new doctrine? The law of nations and the laws, rules and precepts governing for example the conduct of war and the law of the sea are set in precedents. There is a body of precedent developed over several centuries, some of which is codified in both international agreements and in the accepted practices of most nations. At the extreme of international behavior has been the issue of war criminals and crimes against humanity. The International Court of Criminal Justice that sat at Nuremberg to try the major war criminals at the end of World War Two and the International Coun of Justice created by the United Nations evidence the intent of the civilized world to cooperate to try and punish transgressors. The United States has been the key leader. There is no exact precedent per se for dealing with the new situation since September 11, 2001, except for the actions taken by the General Assembly of the United Nations and the independent actions of the United States and its allies and associated friendly nations. However, the general body of international precedent, the principles of the Charter of the United Nations, and specifically the Law of the Sea, provide a basis for a new doctrine and for actions by the United States Navy. The President of the United States has made it abundantly clear that the U.S. will not stand by and be attacked again by international terrorists, least of all by those employing WMD. No one could disagree with his position. In addition, the United States has taken a leadership stance. This stance is cause for concern with even some of the United States’ allies because of its implied intent to use oven action against the perceived threat beyond the actions taken in Afghanistan. What may be called a new Doctrine for the U.S. Navy in the containment of international terrorism and the use of WMD may now be articulated.
Hostile intent has always been a defining principle for Rules of Engagement (ROE). In the world of international terrorism and WMD one cannot afford to wait for hostile action to follow. Counteraction may be too little and too late. The key to hostile intent is information, a combination of classical U.S. intelligence and multi-level information sources, some of which may be accessed by modern computer networks. Unequivocal intelligence is the key. There can be no more mistaken embassy bombings. Collateral damage, consequence management, and political perception management are as important as putting the right weapon on the right target at the right time. The chain of command must also be seamless and in unison, and act in timelines consistent with the actions of the threat. There can be no after action analysis that shows that the threat succeeded because of a breakdown in the U.S. command and control system. Hostile intent is, therefore, the defining event. Possession of the means to perpetuate an international criminal act may be an indication of future intent, but it will not stand alone as the casus belli. However, once hostile intent is clear, the rules change.
The Law of the Sea and the freedom of the seas permit the United States Navy to exercise its rights of presence, innocent passage, and board and search, and to enforce both the body of international law and those aspects based in precedent and tradition. The new Doctrine calls for actions similar to the basis and means by which the Royal Navy stamped out the slave trade in the nineteenth century. The latter was a clear crime against humanity encapsulated in the Jaws of nations and enforced as an act of international law. Those who continued to engage in the slave trade did so at their peril, and the Royal Navy was thorough and effective in its enforcement. International terrorist and WMD activities are an equal threat to civilization, the laws of nations, and constitute crimes against humanity totally similar to the evils of the slave trade. There are multiple other compelling precedents in the long tradition of the Law of the Sea.
The U.S. Navy is forward deployed around the clock, anywhere, anytime. It is the nation’s front line force. Its carrier, surface, subsurface, Special Forces, and Marine elements constitute a prodigious capability. The key to their implementation success is accurate, timely information, acted upon without break in command and control. Technological change, ergo WMD, has always been a basis for a shift in precedent in both international law and the Law of the Sea. France came under enormous pressure via the Law of the Sea and international law for its nuclear testing programs in the South Pacific in the 1970s. As historical illustrations the Battle of the River Platte in World War Two, Operation Sea Dragon and Operation Market Time, the blockage of Haiphong, all during the Vietnam War, used international law and the Law of the Sea as their fundamental basis for operations. The new Doctrine calls for the Navy to be able to legally attack those threats that meet the criteria of hostile intent founded in precedent and tradition, based on the experience of war. The corollary for the rogue nation or terrorist organization is that they must do absolutely nothing that indicates the hostile intent in order to avoid being attacked. Hostile intent may be widely defined. For example, the movement of nuclear materials by sea to a known terrorist organization defines hostile intent since terrorist organizations are defined by precedent to be inherently hostile. Organizing the means to execute international terrorist acts is hostile intent. The Doctrine calls for the appropriate military response at the appropriate level to meet the threat. Similarly, the movement of individuals and funding connected to the provision of and support for terrorist and criminal WMD related acts constitute acts of criminal intent. Such acts are conspiracies to perpetrate international criminal acts.
An article in the March 9, 2002 edition of The Economist stated, “America spends a staggering 40 percent of all the money the world spends on defense. The Pentagon’s budget is over ten times that of the next biggest spender in NATO (Britain). This gap in resources translates into a technology gap, as Europeans would have found in Afghanistan”. These facts polarize the issue of the amount of overseas support that the U.S. Navy can expect in implementing the new Doctrine. For the myriad political reasons discussed earlier the likelihood of widespread support is limited. The UK has been one of the U.S.’s best allies, but even the UK is limited by its military capability.
Her Tomahawk firing submarines, SAS, RAF in-flight refuel-ing, the Royal Marines and other support activities ashore and afloat have been invaluable, but until the UK acquires her new carriers and JSF variant, even she is severely limited in what she can do to support the U.S. Hopefully the UK will convert some of her SSBNs to a Tactical Tomahawk firing role and get into the air-launched precision weapons business. The good thing about the British is that they have no qualms over recognizing where their military capabilities can play while lending major political and diplomatic support, especially in the Middle East. The key point is that the best of the U.S. allies can only do so much. When NATO invoked Article 5 on September 12 (an attack on one member is an attack on all) there was indeed a hollow ring to the invocation. The U.S. is it, and the U.S. Navy represents the civilized world’s best hope for implementing the Doctrine and maintaining an enduring peace. Pax Britannica was a viable and surviving modus vivendi in the nineteenth century. In the twenty-first century, Pax Americana may be the world’s main chance for keeping our planet a safe place. It is a fragile world, and it is a great responsibility.
Finally, there is the issue of doctrinal implementation. Hostile intent must be answered before the threat can execute its designs. There can be no holding back, and the U.S. will be able to show quite unequivocally why she took such measures. The targeting of terrorist and WMD threats will take special training and expertise. The Navy that has inherited the traditions of Nimitz, Halsey, Spruance and Burke is well up to the job. The Submarine Force that Admiral Lockwood led in the Pacific in World War Two demonstrated extraordinary capability. That tradition will live on in this new era.