When Sulaiman Al-Adsani traveled from the United Kingdom to Kuwait to repel Saddam Hussein’s invasion in 1991, he never dreamed he would depart with bruises and burns inflicted by the very government he had sought to defend. According to Al-Adsani, his troubles began when he was accused of releasing sexual videotapes of Sheikh Jaber Al-Sabah Al-Saud Al-Sabah, a relative of the emir of Kuwait, into general circulation. After the first Gulf war, with the aid of government troops, the sheikh exacted his revenge by breaking into Al-Adsani’s house, beating him, and transporting him to a Kuwaiti state prison, where his beatings continued for days. Al-Adsani was subsequently taken at gunpoint in a government car to the palace of the emir’s brother, where his ordeal intensified. According to Al-Adsani, his head was repeatedly submerged in a swimming pool filled with corpses and his body was badly burned when he was forced into a small room where the sheikh set fire to gasoline-soaked mattresses.

On August 2,1990, Iraqi forces invaded and occupied Kuwait, beginning a seven-monthlong series of events that would come to be known as the Persian Gulf war. Perhaps the most thoroughly examined of these events was the thirty-eight-day air campaign, which began on January 17,1991, and marked the beginning of the offensive by the coalition of states arrayed against Iraq, which ended after the latter’s withdrawal from Kuwait. Much has been written about the air campaign and its objectives, its implications for the future use of military force, and the extent to which it conformed to international law. Although this article will focus on the last of these topics, a contextual understanding of the air campaign is essential to a serious consideration of the military necessity and proportionality issues that lie at the heart of the legal analysis.

Pending the establishment of the African Court on Human and Peoples' Rights, the African Commission on Human and Peoples' Rights remains the only institutional body for the implementation of the rights guaranteed in the African Charter on Human and Peoples' Rights. The Assembly of Heads of State and Government of the Organization of African Unity (OAU), reconstituted as the African Union (AU), established the Commission in 1987, after the entry into force of the African Charter, in 1986, and pursuant to its Article 64 (1). The Commission was established, inter alia, “to promote human and peoples' rights and ensure their protection in Africa.” That is, besides “any other tasks which may be entrusted to it” by the Assembly, the Commission performs three primary functions: it promotes and protects human and peoples' rights and interprets the provisions of the Charter.

Some of the worst human rights catastrophes of the twentieth century were famines created or manipulated by governments. In 1932 at least five million Ukrainians starved to death, while hunger was largely unknown across the border in Russia.The Soviet government imposed disastrous grain quotas on the Ukraine, then let its own citizens literally collapse in the streets while it exported grain to further its “revolutionary” objectives.The Ethiopian famine of 1983-1985, preserved in popular memory as a natural disaster of biblical proportions, most fiercely struck those parts of the country that harbored irredentist movements. In a stunning, but telling, rejoinder to international pity for the purportedly hapless Ethiopian government, the Ethiopian foreign minister told a U.S. chargé d’affaires that “food is a major element in our strategy against the secessionists.” Since 1994, more than two million out of a population of twenty-two million in North Korea have starved to death, while South Koreans, affected by similar weather patterns, have remained completely untouched by famine. Nongovernmental organizations (NGOs), trying to distribute aid earmarked for famine victims, have watched helplessly as the government callously interfered and have arrived at the conclusion that “the authorities are deliberately depriving hundreds of thousands of truly needy Koreans of assistance.”

There is an inherent tension in international human rights law between affirming a universal substantive vision of human dignity and respecting the diversity and freedom of human cultures. Although understanding and securing human rights in international law requires us to grapple with that conflict, classic notions of state sovereignty cannot adequately address the issue. The principle of subsidiarity, instead, gives us a conceptual tool to mediate the polarity of pluralism and the common good in a globalized world and helps us make sense of international human rights law. I argue that we should regard subsidiarity as a structural principle of international human rights law.

The rapid ratification of the Rome Statute of the International Criminal Court (ICC) and the orderly election of its judges and prosecutor belie the radical nature of the new institution. The Court has jurisdiction over genocide, aggression, crimes against humanity, and war crimes—crimes of the utmost seriousness often committed by governments themselves, or with their tacit approval. The ICC has the formal authority to adjudge the actions of high state officials as criminal and to send them to jail, no matter how lofty the accused’s position or undisputed the legality of those acts under domestic law. While the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) also possess this authority, those institutions operate directly under the control of the United Nations Security Council and within narrow territorial limits. The ICC, by contrast, is largely independent of the Council and vests the power to investigate and prosecute the politically sensitive crimes within its broad territorial sweep in a single individual, its independent prosecutor.

Although much criticized, the concept of “sovereignty” is still central to most thinking about international relations and particularly international law. The old “Westphalian” concept in the context of a nation-state’s “right” to monopolize certain exercises of power with respect to its territory and citizens has been discredited in many ways (as discussed below), but it is still prized and harbored by those who maintain certain “realist” views or who otherwise wish to prevent (sometimes withjustification) foreign or international powers and authorities from interfering in a national government’s decisions and activities. Furthermore, when one begins to analyze and disaggregate the concept of sovereignty, it quickly becomes apparent that it has many dimensions. Often, however, the term “sovereignty” is invoked in a context or manner designed to avoid and prevent analysis, sometimes with an advocate’s intent to fend off criticism orjustifications for international “infringements” on the activities of a nation-state or its internal stakeholders and power operators.

Preemption comes in many forms and what we think of it depends on the circumstances. One state may not strike another merely because the second might someday develop an ability and desire to attack it. Yet few would criticize a strike in the midst of an ongoing war against a second state’s program to develop new types of weapons. Between these two examples lie countless fact patterns.

In the end, each use offeree must find legitimacy in the facts and circumstances that the state believes have made it necessary. Each should be judged not on abstract concepts, but on the particular events that gave rise to it. While nations must not use preemption as a pretext for aggression, to be for or against preemption in the abstract is a mistake. The use of force preemptively is sometimes lawful and sometimes not.

In his speech before the United Nations (UN) in September 2002, President George W. Bush characterized the possible use of force against Iraq as necessary to enforce existing Security Council resolutions and to eliminate a dangerous threat to international peace and security. The Security Council responded by adopting Resolution 1441, which found Iraq to be in material breach of previous Security Council resolutions and threatened serious consequences for further intransigence. When Iraq refused to fully comply with these resolutions, the United States led an ad hoc “coalition of the willing” that invaded Iraq on March 19,2003, quickly defeated Iraq’s armed forces, and ended the regime of Saddam Hussein and the Ba’ath party. On May 1,2003, President Bush announced that major combat operations in Iraq had ended. At the time of this writing, the United States has assumed the position of an occupying power that is responsible for rebuilding Iraq, as recognized by the Security Council in Resolution 1483.