Emerging Threats to International Security: NATO's Renascence by Zachary J. Adams

Running Head: EMERGING THREATS TO INTERNATIONAL SECURITY

Emerging Threats to International Security: NATOâ&#x20AC;&#x2122;s Renascence and the Modern Interpretation of the Laws of War Zachary J. Adams Norwich University

EMERGING THREATS TO INTERNATIONAL SECURITY

Introduction: Since the Cold War Era, NATO had been utilized solely as a collective security deterrent mechanism spanning throughout Europe. In response to the atrocious attacks endured on September 11th, 2001, the North Atlantic Treaty Organization’s (NATO) significance seems to have been revitalized and redirected. Even though international exposure is mainly received by the United States’ unilateralist approach quelling terrorist behavior, NATO alliance members agree that global terrorism has become a serious threat to not only regional, but international stability. No matter the fact, the “war on terrorism” was a U.S. creation which has morphed globally; affecting all areas of the world. As the United States retains national security as its highest priority, NATO has also adapted to the transitions of insurgent warfare and emphasizes deterring much of the same threats. Today, NATO’s present role combating international terrorist regimes consists of a multifaceted directive. While the rise of global terrorist organizations has been added to NATO’s objective because of the geographical expansion of terrorist cells, it has nonetheless assisted in strengthening key alliances and security partnerships. The attacks on September 11th did more than cast a “war on terror,” they effectively redeveloped the rights and laws of war. With the emerging threats imposed by vile non-state actors, the principles of warfare and the nature of international law have been reformulated to counter such attacks giving NATO the jurisdictional authority to do so. The essence of this paper will indicate the future of NATO’s global role combating terrorism through a legal analysis concentrating on the modern interpretation of international law and the rights and laws of war. Accordingly, this paper will be split into two parts: one, outlining the path which international rights and laws

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of war have been reformulated since the early 1990s, and two, the future of NATO’s international security role. The Modernization of International Law and the “War on Terror”: The United Nations Security Council (UNSC) began its war laws re-interpretive transformation in the early 1990s with the context found within Resolution 883. Resolution 833 (UNSC, 1993) asserts that “the suppression of acts of international terrorism, including those in which States are directly or indirectly involved, is essential for the maintenance of international peace and security…” At the time, the Security Council had worried more so about international peace through means of stabilizing security than whether such attacks were conducted by state or non-state actors. Years later, the events of September 11th undeniably qualified as violation under both U.S. and international law. Accordingly, the question arises whether such attacks can be justified (Greenwood, 2002) as “acts of war, armed attacks or threats to peace” (p. 305) may, through interpretive analysis, authorize the Security Council the right to use force. Concisely, Bradley & Goldsmith (2005) state that the “…international law role for declarations of war has largely disappeared. The United Nations Charter, which now regulates the portion of the international laws of war known as jus ad bellum (rights to war) refers not to “war,” but rather to “armed attack,” “use of force”, and “threat[s] to the peace”” (p. 2061). In the past, the concept of threats or breaches to international peace were interpreted as a limitation for use of military force, but in more recent years and setting precedent from the September 11th attacks (Greenwood, 2002), “the Security Council has had no hesitation in treating acts of international terrorism as threats to the peace” (p. 306). In essence, the Security Council justified their progressive interpretation of threats to peace as a not only a

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direct state issue, but a conflict that indirectly affects the entire international realm. Resolutions adopted by the Security Council since the attacks have been decisive by thoroughly exemplifying the Council’s stance on condemning terrorist organizations and all affiliations as threats to international peace. For instance, Resolution 1368, adopted the day after the attacks, emphasized the tenacity of the Security Council (Greenwood, 2002) to: Combat by all means threats to international peace and security caused by terrorist acts and condemned the horrifying terrorist attacks which took place on 11 September 2001 as being like any act of international terrorism...a threat to international peace and security. (p. 306) Following the Council’s reformulated stance on international terrorist activity, Resolution 1373 passed just days after requiring all member states to take various measures, including but not limited to reaffirming the inherent rights of individual and collective self-defense states to protect themselves and to combat terrorist behavior by all means necessary against known associates and suspicious states; each resolution passed with unanimous decision. Subsequently, following the UN Charter as an international code of conduct regarding the rights and laws of war, another issue arises categorizing the definitions of ‘international crimes’ and ‘threats to peace.’ Moreover, the modern stance taken by the Security Council concerning terrorism and global security is of dire importance. Searching for a solution to deter and even minimize international terrorist activity, Article 39 of UN Charter VII (1949) gives a clear cut definition asserting that “the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression…” Duly noted, Article 51 (1949) continues on stating that the Charter itself will not impair the security of member states and grants authorization to preserve the “inherent right of individual or collective self-

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defense if an armed attack occurs against a Member of the United Nations…” NATO’s swift response following the attacks on September 11th was felt through the invocation of Article 5 of the Washington Treaty (2001) signifying the apparent modernization of ‘armed conflict’ justifying use of force emanating not only from states actors but also non-states as well: If it is determined that this attack was directed from abroad against the United States, it shall be regarded as an action covered by Article 5 of the Washington Treaty, which states that an armed attack against one or more of the Allies in Europe or North America shall be considered an attack against them all. A month after the attacks, the United States, the United Kingdom, and lesser significant states struck terrorist combatant strongholds inside Afghanistan and neighboring areas with mighty coalition-led military operations including forces from air and eventually ground. Before the U.S.-led coalition continued their objective extending into Iraq fighting the “war on terror”, international opinion drew weary of Western intentions in the Middle East and deplored further NATO authorization for combat. Even though many dissidents assumed that the Security Council authorized military force in Iraq, Resolution 678 (1990) clearly outlines and authorizes “Member States cooperating with the Government of Kuwait,…to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area…”; resolution 660 was adopted following the invasion of Kuwait by Iraq in 1990. By definition, the United States did not require Security Council approval to strike Afghanistan and thereafter, Iraq. History of war laws and Article interpretation show that the United States, particularly, legitimized the right of self-defense by aggrandizing the extent of an ‘armed attack.’ In modern times, there is without a doubt

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that terrorist acts by state or non-state actors qualify as an armed attack nonetheless, therefore constituting a military response under the international classifications of self-defense. Furthermore, the Security Council, setting a future international security precedent, took upon itself the duties to maintain and restore international peace and security by all means the treaty organization found necessary. A Modern Interpretation Defining the Principles of Warfare: Just war theory, considered the doctrine of military ethics and warfare, has been applied for centuries by sovereign nations outlining the principles and conduction of war. Just war theory establishes the rights of war (jus ad bellum) and the laws of war (jus in bello). With clear comprehension of the guidelines of warfare, it is imperative and necessary to question the United States’ right of self-defense reassuring that the requirements were appropriately established and not violated under the restraints of Article 51. Analyzing the content of Article 51, only one prerequisite is revealed (Greenwood, 2002); “namely that there should be an armed attack against a member of the United Nations” (p. 311). Furthermore, it has been widely recognized and applied by sovereign nations that use of force authorizes prescriptions of self-defense but must also meet the requisites of jus ad bellum and jus as bello. Because the United States became victim by first attack by a state or non-state actor nonetheless, jus ad bellum signifies that a just cause must be identified in order to conduct war. In the case of the United States, initiating a “war on terror” would solely be based on a just cause of self-defense and not on reprisals or retaliation. Jus ad bellum must be explicitly distinguished from the conduction of warfare in spite of revenge which is unacceptable by international standard.

EMERGING THREATS TO INTERNATIONAL SECURITY To establish a just cause for initiating war in return of a conducted attack, the principles of jus in bello become pertinent. Pursuant with international law, the United States justified that a military response was legitimate (Sterio, 2012) as it respected the “principles of necessity, proportionality, distinction, and humanity” exemplified in jus in bello (p. 209). Therefore, jus in bello emphasizes that all ‘armed attacks’ during times of conflict may only be operational if congruent to overall military objectives; such objectives must be well-portrayed and must express a military advantage. Accordingly, Sterio (2012) and the internationally-accepted laws of warfare, jus in bello, dictate that: Force may be used if the military objective sought is necessary, if the suffering caused by the use of force is proportionate to the military objective, if the military commander can properly distinguish between military and nonmilitary targets, and if the military commander has adopted limited means of injuring the enemy, which minimize unnecessary suffering. (p. 210) Under these addressed circumstances, initiating warfare can indeed satisfy the requirements of jus in bello and the rules prescribed by the Geneva Conventions if and only if such attacks are not incommensurate to actual military objectives; such attacks must significantly outweigh the risks of inducing potential civilian harm and suffering. In the past, the traditional interpretation of jus ad bellum viewed assertions of conducting war by any means with counterterrorist forces with highly unfavorable desires. Also, in the contemporary sense, jus ad bellum effectively disregarded all and any possibility that states could legally authorize force against terrorists, or any non-state actor for that matter, located in a foreign country; this previous notion was founded on customary international law which only authorized states to use force defensively. This

EMERGING THREATS TO INTERNATIONAL SECURITY apparent transition from the traditional to a modern interpretation of jus ad bellum has implemented greater flexibility concerning legal definitions and the overall conduction of warfare on the global scale. Beyond rationalizing jus in bello and the general principles of war, it must also be acknowledged that the Security Council necessitates attacks based on preemption if and only if measures taken are applicable in maintaining international peace and security. Expanding on the guidelines of self-defense, a sovereign nation fallen victim of attack may call upon another state as a means of constructing a collective defense mechanism. Such an invitation was beseeched upon the United Kingdom after September 11th by the United States establishing a bilateral coalition led by the West against the “war on terror”; this type of invitation is relevant regarding NATO member states seeking to protect and defend common interests of international security. Because the Security Council identified an imminent threat of ‘armed attack’ thereafter the events of September 11th, the implementation of use of force through military means by NATO member states can be “properly seen as a forward-looking measure to prevent that threat from materializing, rather than as a backward-looking act of retaliation for what had gone before” (p. 312). The initial response of self-defense led by the United States and coalition-backed forces should be comprehended under the notion that such strikes were methods of aversion, not retaliation, in order to reduce any continuation of threats from the ones held responsible. Supporting the Security Council’s claims of preemption, the objection against sovereign states exercising measures of self-defense against non-state actors is invalid. Afghanistan’s governing body at the time, the Taliban, unanimously violated international law by allowing Al-Qaeda, the terrorist regime claiming responsibility for the attacks on

EMERGING THREATS TO INTERNATIONAL SECURITY September 11th, to operate within Afghan borders. No matter the extent of which the threat posed to the Taliban government, Al-Qaeda controlled vast regions within Afghanistan and even established a de facto government far before the attacks were even executed. International law declares that states cannot appropriate territory to be used as a base for non-state actors, especially a known terrorist regime. According to Greenwood (2002) on the situation within Afghanistan, At the very least, its position was analogous to that of a neutral state which allows a belligerent to mount military operations from its territory: even though it is not responsible for those operations, it exposes itself to the risk of lawful military action to put a stop to them. (p. 313) Comparably, the orchestration and acknowledgment of ‘armed attacks’ carried out within the confines of Afghanistan by the non-state actor Al-Qaeda, illustrates under international law that the victims of such attacks are permitted to induce force against those accountable. The threat itself may have been of mere significance to Afghanistan, but to the international community, structured on the rule of law, it was of dire necessity. Given the threshold of force deployed by allied states, such force was undoubtedly rigorous, but given the circumstances, was clearly proportionate in its manner. NATO’S Redirection: It is now evident that since the attacks on September 11th NATO’s role has been fully refurbished and is not solely limited to an alliance, but now as an international peace and security arbitrator. Many of NATO’s current missions and aspirations derive from terrorist activity and potential inclinations spanning regionally across the globe. NATO has become

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more than just a pre-Cold War era alliance built on anticommunist undertones; NATO (de Nevers, 2007): is now commonly described as a political-military alliance that combines the key political function of guiding members' foreign and security policy and providing a forum for alliance consultation with the operational function of ensuring that members can train and develop the capabilities to cooperate militarily. (p. 35-6) Not only does this explain NATO’s endurance after the collapse of the Soviet Union, but also its future role. In 2002, the Prague summit incentivized NATO’s modern transition to combat global terrorism. The political outline of the summit emphasized that the alliance’s revamped military strategy should be to “help deter, defend, disrupt, and protect against terrorist attacks, including by acting against state sponsors of terrorists” (p. 37). While the United States’ unilateral approach to the “war on terror” is not restricted only to measures of deterrence and prevention, American objectives are also fundamentally supportive of seizing and eliminating, if possible, all known terrorist enemies of the United States. The strategic element of this approach is largely focused on nations that may harbor or assist terrorist regimes. NATO’s stance is more defensive and receptive (de Nevers, 2007) to international threats and…“places greater emphasis on reducing vulnerabilities and enhancing capabilities to respond quickly to potential attacks” (p. 38). Contrasting to the position of the United States which attempts to avert terrorist attacks occurring on U.S. soil and in designated regional areas of interest abroad, NATO’s initiative has shown that it can feasibly accept both lead and reinforced functions in either offensive or defensive modes of operation.

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NATO may effectively manage emerging threats, but it is unanimously accepted that operations led by NATO forces will endure substantial planning due to the only prevalent issue plaguing the organization; consensual agreement pertaining core concepts and military strategy towards achieving overall goals. Because NATO consists of 28 member states, immediate direction and strategic approach towards threats can slow duration of missions. Also, member states and NATO as an actor must comply with international law and treaties governing both entities. As NATO must act in accordance to the UN Charter, all applicable UN resolutions, and the Geneva Conventions, member states must also abide by rules and regulations of ratified treaties including international law as well. Principles of both national and international law restrain many NATO members to become quite reluctant in the decision-making process. Encompassing 28 member states does more than vacillate decisions, it circumscribes general direction and objective. Although, U.S. and NATO strategic means may be different by approach, their ends are the same. Similarly, Greenwood (2007) proclaims that “NATO's counterterrorism strategy shares with U.S. policy the recognition that preventing attacks may require offensive action against terrorists or states that support them” (p. 39). Both U.S. and NATO strategies comprise components displaying their similar and dissimilar primary concerns, but critical dissension potentially lays ahead affecting cooperation and future objectives if concentration is not reconceived towards combating the rise of terrorism. Emerging Global Threats and NATO’s Renascence: Responding to the emergence of international threats to peace and security after September 11th, NATO was required to not only make decisive decisions regarding the rise of terrorist activity but also to its own survival. NATO adapted to the influx of transnational

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terrorism by swiftly initiating Operation Active Endeavor (OAE); the first military action of its kind invoked by the Security Council determined by Article 5. OAE was formally implemented to address global terrorism in the wake of Al-Qaeda’s ascent to power in the Middle East and was designed to cease any movement of armaments, drug smuggling, and weapons of mass destruction. Concurrently, (de Nevers, 2007) “this activity has corresponded both to Washington's goal of preventing terrorist attacks and to NATO's antiterrorism strategy” (p. 41) through its deployment as a collective deterrent mechanism casting surveillance and support in Middle Eastern regions directly affected by Al-Qaeda’s presence. OAE, rising to the challenge of escalating threats (de Nevers, 2007), “has clear military objectives, and NATO has developed valuable experience in maritime surveillance and interdiction through this mission…and at the same time, the mission has had both strategic and political aims” (p. 41). Future operations involve designations increasing the number and cooperative measures of Mediterranean countries obligating more nations to take action in their own and extended areas of security. The future holds no definitive certainties when it concerns global security and emerging threats. OAE effectively morphed into a greater counterterrorism deterrent spanning throughout the Mediterranean Sea and beyond. Collateral benefits become apparent through the enhancement of import-export shipping security through many neighboring harbors in areas deemed vulnerable. OAE held responsibility for monitoring thousands of ships and engaging, intercepting, and boarding countless suspicious vessels as well. With the rise and even more atrocious transgressions exhibited by the Islamic State of Iraq and Syria (ISIS), a group denounced by Al-Qaeda for its greater barbarism, NATO and the West have had no alternative but to direct full attention to a terrorist organization which

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knows no boundaries or rules regarding the conducts of warfare. Once upon a time, terrorism was thought to only be a domestic issue eliciting dangers only to the internal foundations of a state. The yester rules of warfare and 20th century assumptions which iterated military ethics and conduct have all been forgotten with ISIS’s savage Middle Eastern conquest attempting to divide territory and declare a State of its own. It may be presumed that several of NATO’s members share the same worries and concerns over future threats as does the United States, but many of these states have not transitioned their efforts into productive and qualitative cooperation. Because NATO’s initiative is structured on countless perspectives by member states, a more feasible approach to threat reduction lies within bilateral and loose partnerships between impotent and vulnerable states and the command of NATO. Friction between member states constructing formal strategies (Gordon, 2002) display that “problems will grow far more intractable if American and European military capabilities continue to diverge” (p. 38) and common ground is not achieved. Interoperability must be rediscovered between member states solidifying not only their own priorities but those of NATO’s whose total forces and capabilities will surely combat future plots of international terror. That being said, it has become quite apparent that modern-day terrorism is geographically boundless and has now become a global issue; a time for NATO to transition and react. NATO’s most prominent and effective means to combat future terrorist transgressions is by continuously ascertaining regional dominance preventing and deterring terrorist organizations sanctuary within cooperative states. The overall success of NATO has relied strictly on the performance of OAE in destabilized regions of the Middle East and outlying regions. As former Deputy Secretary of State Strobe Talbott (Stimma, 1999) stated in 1999,

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“Disputes over ethnicity, religion or territory, can, as we’ve already seen, trigger armed conflict, which in turn can generate cross-border political instability…” (p. 14). By gathering intelligence, OAE skillfully connected allied partners with NATO databases sharing crucial information optimizing results. OAE’s success rate (Bernasconi, 2011) has proven that “NATO as de facto formalized the importance of operational counter-terrorism cooperation in a multilateral framework, putting extra emphasis on the key role played by interoperability among Allies and Partner Countries in data sharing” (p. 3). OAE has done more than collect, share, and provide information, it also safely escorts partnering ships to and from their points of destination. Perceptions of greater security and safety have been accompanied by OAE’s Mediterranean presence, especially felt by vessels travelling in between hostile areas. While NATO’s role in fighting international terrorism has been limited to a more defensive than offensive role, NATO’s most significant contribution has been through the UN-created and NATO-led security mission, the International Security Assistance Force (ISAF). NATO (de Nevers, 2007) has exceptionally provided: a central role in training Iraqi security forces. NATO's training effort has several elements: mentoring of Iraqi military officers by NATO personnel; creation of an officer training facility in Iraq; and training of Iraqi officers in NATO facilities. (p. 53) ISAF missions may have ceased in December, 2014, but the improvements in military training and conflict mediation and support have been invaluable to a region of the Middle East that will continue to encounter threats long into the foreseeable future. Through its conception, ISAF gave inefficient militaries the tools and training they require to ascend and

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develop their own capabilities creating an independent framework for security. While conflicts still persist in and around Iraq and Afghan regions, the existence of ISAF cannot be criticized because no other organization or country for that matter confronted such a challenge in order to induce future peace and security to an area of the world which has not experienced either for decades. Many challenges still face the future of NATO, and as European military capabilities remain imbalanced and formidable threats to international peace and security remain prevalent, NATOâ&#x20AC;&#x2122;s larger objective will be to mitigate such predicaments by safeguarding regions of the international system where hostilities are abundant. Provided that NATO encourages distressed states to seek assistance, states in and outside of NATO membership should take all necessary and viable measures to ensure cooperation with NATOâ&#x20AC;&#x2122;s tremendous capabilities for reasons more than protection, but to enhance and improve their own threat awareness procedures and conflict resolution tactics indefinitely. Conclusion: The traditional auspices of international law regarding the ethics and rule of war, particularly the contents of jus in bello, retain both precise yet ambiguous elements. The laws of war may be well-defined, yet the interpretation of international law and the principles of warfare are redefined and evaluated so on and so forth. While the constructs of jus in bello are considered articulate, margins remain vacant for self-interpretations leaving much as a conventional guideline instead of actual rule implementation. Giving rise to international threats of terrorism, the U.S. and allied coalitions have successfully, through complex interpretation, justified Western-led forces to take lead against emerging threats to global peace and security. It is unanimously agreeable that the attacks on

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September 11th established a precedent for future initiatives quelling global terror through a re-interpretive analysis regarding the statutes of self-defense. International law may have undergone a renovation of its original fundamental concepts, but through a constant metamorphosis of law, it becomes necessary to ensure that peace is feasibly conceivable. Although NATO was established on the context of pre-Cold War suppositions, it would be unfair to conclude that NATO no longer plays an effective role on the international stage. Coinciding with NATO’s re-envisioned raison d'être, NATO (de Nevers, 2007) has helped institute a “crucial forum in which the United States can discuss foreign and security policy with its key allies to reach common understandings of shared problems” (p. 65). NATO presently, and for years to come, should be considered the international opinion of U.S. policy and interests, especially within the realm of European and Middle Eastern security affairs. It has come apparent that NATO’s future relies on further development of strategic concepts. A common initiative and political will of member states must be revitalized now that Cold War assessments are no longer valid depicting the threshold of today’s threats. Present threats are not concealed to states, but now span internationally. Modern times justify a modern approach which implies a reinterpretation of the rights and laws of war and also a globally-restructured initiative suppressing the ascent of terrorism. NATO must seize the opportunity to divert from outdated operandi and readjust and revamp core concepts to the emergent dangers of incessant and unorthodox threats.

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Works Cited: Bernasconi, C. (April, 2011). NATOâ&#x20AC;&#x2122;s fight against terrorism: Where do we stand? NATO Defense College, Rome, 66, p. 3. Bradley, A. C. & Goldsmith, L. J. (May, 2005). Congressional authorization and the war on terrorism. Harvard Law Review, 118(7), pp. 2061-2094. Gordon, P. (2002). NATO and the war on terrorism: A changing alliance. The Brookings Review, 20(3), pp. 38. Greenwood, C. (2002). International law and the war against terrorism. International Affairs, 78(2), pp. 301-317 de Nevers, R. (2007). NATO's international security role in the terrorist era. International Security, 31(4), pp. 34-66. Sterio, M. (2012). The United Statesâ&#x20AC;&#x2122; use of drones in the war on terror: The (il)legality of targeted killings under international law. Journal of International Law, 45(1 & 2), pp. 209-210. United Nations. (1949). Chapter VII of the United Nations Charter, Articles 39 and 51. United Nations Security Council. (November, 1993). Resolution 883, Libya.