|
May 2, 2003
Some Legal Aspects of the Iraq War
The war in Iraq is over; Saddam and his regime are gone; and, American satrategic objectives have been achieved. But, the war was executed, according to a vast majority of legal academics and practitioners of law, in contravention of the existing global law. The Bush doctrine of pre-emptive strike, they contend, holds no validity under the international law. The US administration and the world community are now faced with the challenge of restoring the fractured legal structure.
Any war is a paradigm for anarchy. But the breakdown of law and order, the total chaos, the loot and robberies particularly at the museums housing centuries old, priceless objects of art can hardly provide enough diversion from the need of the US forces to find a grounding in law for the continued exercise of power.
Let us first examine the legal status of the war.
Since the signing of the UN Charter in June 1945, the only body with the authority to initiate military action is the UN Security Council, except in the case of self-defense when an armed attack has actually occurred against a sovereign state.
Article 2.4 of the UN Charter says: “All members shall refrain in their international relations from the threat or use of force.”
Article 51 lays down that even in self-defense, a state may not go to war “until the Security Council has taken measures necessary to maintain international pace and security.”
Preemptive war is not permitted by the UN Charter no matter how much evidence there may be of a potential for violence. The Bush administration’s incessant cries of Iraqi threat to its security, the existence of vast stockpiles of weapons of mass destruction, and so on, despite the inability of the UN inspectors, and subsequently of its own troops, to find any such caches exposed the hollowness of the psychological war slogans while reinforcing the sound basis of the UN postulates.
The Bush administration had indeed secured for itself the legitimacy and authority from both the House and the Senate to wage a war on Iraq. But its position externally was open to question under the international law and in view of the worldwide, unprecedented public rallies against the war. The US required the involvement of the United Nations to lend its intervention in Iraq a veneer of legitimacy. The US administration could not marshal enough support in the Security Council despite intensive diplomatic efforts.
The UN was designed, with the US playing a leading role, to save succeeding generations from the scourge of war. And, the most serious damage that can be done to the UN would be to entrap the Security Council into a situation where it was presented with a choice of losing the support of some of its most powerful members unless it agreed to provide legitimacy to an action that contravened the Charter itself.
The principle on which the UN operates is that sovereign states cannot be invaded to effect a regime change unless it posed a threat to world peace, and even then only with the explicit authority and under the direction of the Security Council.
On the other hand, the US has postulated the theory that Iraq posed an imminent threat to the security of the US and therefore it could invoke an exception to the general prohibition on war. Fact of the matter is that Iraq could have posed a threat to Israel, as it had got involved in almost all conflicts of that state with the Palestine. But, the Bush administration meticulously avoided mentioning even the very name of Israel in the entire episode. The country did not even figure in the list of willing US partners in the war. This was evidently done to avoid the conflict taking an anti-Zionist conflagration in the Arab world and forfeiting whatever goodwill the US enjoys among its Arab and other Muslim allies. It might have, nevertheless, strengthened the US stand on its threat perception.
The next suggestion floated was that it was necessary to achieve a regime change because the Saddam regime was highly objectionable on humanitarian grounds.
Both the above theses were considered by the International Court in case No. 70 of 28th June, 1986 -- Nicaragua vs. USA and were found untenable.
Seeking regime change on the basis that you do not like the ideology of another state is not justifiable in international law.
Another argument repeatedly presented by the Administration was that Iraq was in material breach of UN resolutions calling it to disarm and had thus provided enough justification for a resort to force against it. The UN Resolution 1441 did warn Iraq of serious consequences if it did not comply with the UN demand to disarm.
Several professors of law at eminent law schools hold that authorization by the Security Council for the use of force was not explicit; then it had to be under its own supervision.
There is little doubt about the nefarious nature of Saddam’s dictatorial rule, but that does not provide legal ground for invasion.
It may be relevant to recall here that the US challenged three of its closest allies - Britain, France and Israe l- before the UN in 1956 when they invaded Egypt to overthrow the radical anti-Western regime of Gamal Nasser. The Eisenhower administration insisted that international law and the UN charter must be upheld by all nations regardless of their relations with the US.
The British Attorney-General has offered an interesting argument in support of the use of force. He said that the Security Council resolution 678 which had authorized the use of force to expel Iraq from Kuwait in 1991 stood revived as Iraq was in material breach of resolution 687 as well as resolution 1441.
Lawyers around the world found this hair-splitting interpretation of the resolutions as untenable and implausible.
What is the way out then? There appears to be no alternative to UN involvement, although this might be interpreted as an indirect endorsement of an illegal fait accompli.
The current face-off between the UN and the US will have to yield to a rapprochement, a modus vivendi. The US is not only the sole super power of the world now but the most invincible juggernaut with feet of steel embedded in science, technology and innovation particularly in the field of defense. That is the ground reality.
But, power alone can coerce, it cannot persuade. As Kofi Annan, UN Secretary General said on March 20, 2003: The people of the world have made it clear that in confrontation uncertainty and danger, they want to see power harnessed to legitimacy.
All sides need to work together and compromise. Europe and Arab states in particular must be prepared to engage with the US on rebuilding Iraq. The US and the UK might in the flush of victory forget the fact that their pacification efforts would be handicapped by their historic baggage. The UK is remembered for its colonial rule and maneuverings, while the memory of US support to Saddam in the Iran-Iraq war, the perception of US encouragement for the invasion of Kuwait are still fresh in the minds of the people. US allies in the Muslim world, both Arab and non-Arab, may therefore be involved in the pacification process.
All roads from Baghdad do not lead to Rome or Washington, but back to the multilateral world of the UN.
(arifhussaini@hotmail.com ph: 714-921-9634 April 21, 2003)
| 
