Book Reviews Norton Moore, John (ed.). Deception and Deterrence in 'Wars of National Liberation', State-Sponsored Terrorism and Other Forms of Secret Warfare. Durham, North Carolina: Carolina Academic Press, 1997. Pp. xiii, 257. In this volume Moore has collected 16 essays, the great majority of which were presented at two major conferences held in May 1987 and April 1989. In addition, some papers originally delivered at a Symposium held in January 1992 are included. Amongst these, the most important contribution is that by Turner on 'State Sovereignty, International Law, and the Use of Force in Countering Low-Intensity Aggression'. The papers provide political and legal analyses of secret warfare from a US perspective and are based on assumptions akin to those of the (neo-) realist school of international relations. As the title indicates, the book's leitmotif is the need for the use of firm deterrence by liberal democracies, not only against the threat of a massive and open armed invasion but also against more subtle types of aggression in the form of secret warfare. Parts I to IV deal with the political aspects of the subject. The studies by Hammond and Ra'anan on, respectively, communist techniques in the takeover of power and proxy warfare are now largely of historical interest. The following essays are concerned with the deception of (parts of) liberal societies in relation to ideologically disguised security threats. In his first contribution to the volume, Turner sets the scene of political warfare. The means of deception are then described in case studies by Sumner (Cuba) and Lewy (Vietnam) and are analytically identified by Bozemann (whose focus is on the [misleading] use of the human rights vocabulary) and Hayes Parks (who focuses on the instrumentalization of humanitarian law for ideological ends). Next, intellectuals and churches are identified as major 'targets', 'victims' and 'multipliers' of deception by Hollander (in an extremely well-written piece) and Weigel, respectively. Possible political and administrative strategies to counter deception are finally put forward by Summers and Corr. The ideas presented in Parts I to IV are certainly for the main part valid. But they can hardly be said to offer fundamentally new insights for the European reader; particularly as they too strongly resemble the brilliant and angry analysis of Revel (Comment les democraties finissent, 1983). In substance, some may argue that, following the collapse of the Soviet bloc, scepticism about the strength of liberal democracy's immune system in relation to security threats which are more subtle than open aggression has proved to be unjustified. One should not forget too quickly, however, the enormous political difficulties faced by some democratic governments at the domestic level in relation to containment efforts, such as the deployment of middle-range nuclear weapons in Western Europe. Part V deals with the international legal framework of secret warfare under the UN Charter. The common denominator of the contributions by Coll, Moore, O'Brien, Goldie and Turner is the rejection of the so-called restrictive view (partly represented by the Nicaragua judgment - majority view - of the ICJ), which limits the right to cross-border unilateral (counter) uses of force to cases of narrowly defined armed attacks. The ratio behind the author's criticism is couched by Moore in the representative formula (at 138): 'It is largely the differential between the treatment of aggression and the treatment of defense that measures the degree of effectiveness of the legal system in contributing to the deterrence of aggression - not the degree to which the use of force is outlawed.' The rejection of the restrictive view rightly focuses on the legal treatment of three factual aspects which must be distinguished for the purpose of legal analysis but which cumulatively characterize a great number of real conflict scenarios: firstly, the restrictive view's denial of a right to self-defence against relatively minor aggressive acts is rebutted (this point is dealt with in greatest detail by Goldie). Secondly, the restrictive view's limitation of the victim's right to use force in a hit and run scenario to a very limited needle-prick response is to be contrasted with a somewhat wider right to self-defence against a continuing armed attack (this point is taken up by O'Brien). Finally, the wide-ranging exclusion of a right to use counter-force against so-called indirect uses of force, i.e. forcible acts of private persons in which another state is involved, is questioned throughout the essays. At this point the analyses lack the desirable degree of differentiation between various types of state involvement in private acts of armed force that are governed by different legal regimes (this criticism is beyond the scope of this review; but for a typology of seven forms of state involvement in private armed force and the corresponding legal regimes see Kreß, Gewaltverbot und Selbstverteidigungsrecht unter der Satzung der Vereinten Nationen in Fällen staatlicher Verwicklung in Gewaltakte Privater, 1995). Going beyond these three issues, Turner argues at some length (at 246-253) in favour of allowing the targeting of a Head of State who is directing an armed attack. This position, which the present reviewer has not previously come across in such detail, deserves the close attention of international lawyers. In many instances strong policy considerations will support such an approach in order to avoid casualties among the 'ordinary' soldiers and suffering among civilians. For the most part, this collection of essays is highly relevant for the current international political and legal debate. Taking the editor's own contribution as an example (especially at 146-149), one can hardly fail to recognize the extent to which it reflects (or has even influenced?) current US security policy. This is most evidently so with respect to anti-terrorist air strikes, such as those on Libya (in April 1986) and on targets in Afghanistan/Sudan most recently (in August 1998). Without hesitation, the US Administration portrayed both of these military actions as defensive measures under Article 51 of the UN Charter and reported to the Security Council accordingly. This position will remain controversial. The present reviewer shares the doubts voiced on the appropriateness of the restrictive view, both in terms of positive law and legal policy. Therefore, he has no difficulties in understanding those national administrations which do not take the restrictive view as their legal guideline. Yet at the same time, he firmly beliefs that a national strategy of deterrence (especially that of the world's only superpower) which goes beyond the limitations of the restrictive view must meet the following three criteria to be legally valid and politically acceptable: firstly, it must in itself be firmly grounded in law; secondly, it must be incorporated in an overall foreign policy which respects international legal rules and; thirdly, it should allow for preference to be given to collective mechanisms of deterrence, wherever possible. Turner's second contribution is remarkable in that it not only subscribes to these criteria but also makes it clear that the current US foreign policy is not in full harmony with them. Firstly, Turner leaves no room for doubt that his rejection of the restrictive view in no way ignores existing international legal limitations on the unilateral use of (counter-)force. Accordingly, he makes an effort (esp. at 215-238) to justify his position not only by reference to policy assumptions but also by way of thorough legal analysis (space restrictions do not allow the reviewer to explain why Turner's arguments go only some, but not all the way, to rebutting the restrictive view). Beyond this, Turner does not hesitate (at 241-244) to point to the US invasion of Panama in 1989 as a recent example of the transgression of the legal limitations on the unilateral use of force, which a wider view on self-defence must also acknowledge as a legally valid position. Secondly, Turner rightly questions the international legality of such other aspects of US foreign policy as the enactment of 'long-arms statutes' (at 242) and the undertaking of extra-territorial law-enforcement actions (at 244). Some years after Turner completed his essay the Helms-Burton Act unfortunately added even more weight to his criticism (the illegality of this Act under customary international law has rightly been confirmed by the Inter-American Juridical Committee, ILM 35 [1996], at 1329). Thirdly, Turner's positive assessment (esp. at 255-257) of the potential of collective mechanisms for deterrence cannot be stressed enough. At this point the reviewer would like to add an element which he believes fits in with Turner's reasoning. Whatever the final legal and political judgment may be about Turner's idea of what might be called 'the defensive targeting of a high-ranking aggressive individual', such an option should in any event be complemented, in terms of an overall political strategy of deterrence, by that of 'repressive targeting' before the new International Criminal Court (ICC). Deplorably, the US Administration has not yet endorsed the idea of an independent and effective ICC as a useful mechanism of collective deterrence and thus voted against the Rome Statute of 17 July 1998. Turner's important essay could - though most probably unintentionally - contribute to a reconsideration of the current US position and could even help to mobilize US support for the incorporation of a workable definition of the crime of aggression to the ICC Statute as soon as possible. Claus Kreß Ständige Vertretung der Bundesrepublik BR Deutschland bei der EU
	© 1990-2004 European Journal of International Law All comments and suggestions should be sent to webmaster This site is part of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European Law at the European University Institute. This file was last modified: Tuesday, October 14, 2003 01:14PM