In the dominant strand of post-1945 legal opinion, the UN Charter made reprisals involving the use of force obsolete. The Charter, with its prohibition on the use of force unless approved by the UN Security Council or used in self-defence, seemingly had no place for this old-world tool of statecraft. Against the lawyers, however, arose a brand of strategic thinker that saw reprisals—understood as discrete and fitting responses to particular acts of violence—as particularly suited to Cold War situations requiring some force, but not so much as to provoke all-out war. One such thinker, Thomas Schelling, thought the August 1964 American airstrikes on North Vietnamese patrol boats and naval installations delivered a neatly tailored message in response to the Gulf of Tonkin incidents: “it was as an act of reprisal—as a riposte, a warning, a demonstration—that the enterprise appealed so widely as appropriate.” But if the logic of reprisal drove this action, as well as other key US policies and targeting directives during the Vietnam War, the language of reprisal was often shunned. Lawyers within the Johnson Administration consistently argued against laying bare the logic of reprisal underlying US policy, and a key plank in their argument was the official US opposition to Israeli reprisal raids in the Middle East. This paper examines the trajectory of those internal US government deliberations, and assesses their significance in terms of broader debates over the legitimate use of force in world politics.
6 Dec 2018
The Vietnam and Arab-Israeli Conflicts: International Legal Migrations, Comparisons, and Connections