The recent US led invasion of Iraq without any United Nation's mandate clearly demonstrates, and will be proved in the course of the essay, that at least so far as international law is concerned, might is synonymous to right.
The recent US led invasion of Iraq without any United Nation's mandate clearly demonstrates, and will be proved in the course of the essay, that at least so far as international law is concerned, might is synonymous to right.
This essay shall first demonstrate as to how the US-led war against Iraq can be debated as an illegal war and how did the attacking States violate the United Nations Charter and other international treaties and institutions. The relevant features of the Charter have been used to make the foundation of a legal argument. Secondly, it will highlight the adverse impact on the 'Rule of Law'. It will then show how the 'rule of fist' is proving to be the governing factor in international law and how it sets itself as a unilateralist approach for conducting various external affairs.
The preamble of the United Nations Charter expresses a determination 'to save succeeding generations from the scourge of war', 'to practise tolerance and live together in peace with one another as good neighbours', 'to unite our strength to maintain international peace and security', and to ensure 'that armed forces shall not be used, save in the common interest'. This charter provides the guidelines to the use of force in international law.
Any state which considers using force against another State with the aim of restoring international peace and obtaining adherence to Security Council decisions requires a UN Security Council resolution. In situations where a State has failed to meet the requirements of Security Council resolutions, they cannot take any action to resolve the matter, the sole right of taking an action remains in the hands of the Security Council.
According to the Charter, there are only two situations in which one State can legally use force against another:
) In individual or collective self-defence (a right under international law, in Article 51 of the Charter).
(2) In accordance to a UN Security Council resolution, if asked to do so.
United States of America claims the Iraqi Government to have links with Al-Qaeda and as a potential threat to international security and peace. Having no proof or any substantial evidence to back its allegation, Iraq cannot be considered to be a threat as it has not attacked any country neither it is preparing for a war against any country. "The United States intends to invade Iraq, with or without a resolution," said Iraqi Culture Minister Hamed Yusef Hammadi. 1
The United States of America led war against Iraq was motivated firstly, for the destruction and declaration of weapons of mass destruction which included biological, chemical and nuclear weapons, which Iraq was alleged to be possessing. Secondly, bring about a change in the political leadership of Iraq. The justification given to the aggression by the United States was based on self-defence (referred to Article 51 of the UN Charter) and the aggression by the US was an action of defence against armed attacks by hostile forces.
"The USA cannot claim justification under this article, by way of self-defence, as the right to pre-emptive self defence is unrecognized in international law. In 1981 the UN Security Council condemned Israel unanimously for destroying the Iraqi nuclear power plants in Tuweitha. It described this action as a violation of international law, and ruled that no State had a right to pre-emptive self defence. Five years later the UN condemned the USA for bombing Tripoli as revenge for the attack on the West Berlin discotheque La Belle, describing it as a violation of international law. At that time the USA for the first time tried to justify their air strike as being 'preventive defence against terrorism'. Such so called preventive defence actions are regarded as aggressive actions in international law. A war would mean a grave violation of international law, in particular of Article 2.4 and Article 39 of the United Nations Charter."2
In Resolution 1441, passed November 8, 2003, the Security Council will "convene immediately...to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security," if Iraq fails to comply with the guidelines of the inspection team. The resolution further reads, "The Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations." A majority of the Security Council Members believed that 'serious consequences' referred to the UN taking action, largely abiding to the rule of ...
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In Resolution 1441, passed November 8, 2003, the Security Council will "convene immediately...to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security," if Iraq fails to comply with the guidelines of the inspection team. The resolution further reads, "The Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations." A majority of the Security Council Members believed that 'serious consequences' referred to the UN taking action, largely abiding to the rule of law using peaceful means but the United States of America conversely interpreted 'serious consequences' to have included armed force and action.
"A number of council members...have said they meant no such thing, asserting that they did not intend to authorize armed force without another vote."3
Furthermore, the resolution allowed a regime of inspectors to further investigate the matter. This itself had laid the foundations for a peaceful disarmament of Iraq.
Resolution 1441 also makes the following statements:
* "The Security Council decides to afford Iraq a final opportunity to comply with its disarmament obligations."
* "The Security Council decides to remain seized of the matter."
"As I have said, my own opinion (and that of most international lawyers) is that Resolution 1441 did not go as far as to authorize the use of force. In the first Anglo-American draft there was a paragraph that expressly did so. It was removed before the resolution was adopted."4
There are various States possessing the technological know-how of weapons of mass destruction as well as weapons itself, whose issues have never been discussed or bought up in the UN Security Council as violations to the UN Charter. If Iraq happens to be one of those weapon possessing States (as claimed by USA), it still does not justify a war against Iraq.
Russian President Putin in a televised statement on military action against Iraq said "The world must be governed by international law, not 'the rule of the fist'. No country in the world will be safe if the current system of international security is allowed to collapse. There was no need for war as the UN and weapons inspections had been making progress. I should stress straight away that the hostilities are being carried out against world public opinion, against the principles and norms of international law and the UN Charter. This military action cannot be justified by anything: neither by the accusations that Iraq supports international terrorism - we have never had and we do not have information to support this - nor by the desire to change the political regime in this country, a desire which directly contradicts international law and should be determined only by the citizens of this or any other state. If we allow international law to be replaced with the rule of the fist, according to which the strongest has the right to do whatever he wants and is not limited by anything in choosing means to achieve his goals, then one of the basic principles of international law will be called into question - the principle of the inviolability of a state's sovereignty. Then nobody and no country of the world will feel safe. The vast hotbed of instability which has emerged today will grow and cause negative consequences in other regions of the world."5
Rudolf Dolzer, specialist in international law remarks, "International law currently finds itself in a peculiar phase. On the one hand, especially with the war in Iraq, we realize that the old structures are probably no longer applicable for the future. On the other hand, at least according to my diagnosis, very few international players, heads of state, or heads of government have really placed the issue of international order on their agendas."
"The Rule of Law is not some abstract notion developed with the sole aim of befuddling generations of students. It is, in fact, the lynch-pin of all civilized conduct, arising out of a compact between States and their peoples with duties and rights devolving on governments and citizens to behave in accepted ways for the mutual benefit and safety of all."6
The United States of America has a written constitution of its own and is known for respecting important features of law such as 'The Rule of Law' and 'Doctrine of Separation of Power'. If it deliberately violates the Constitution by carrying out an unauthorised and undeclared war, it violates the Rule of Law which separates democratic societies from dictatorial societies, setting a false precedent to successive Presidents and to encourage imperialistic concepts.
The United States of America, being one of the world's most powerful states, sets examples by its own conduct for other fellow states. If they themselves violate international law leading to an argument over international security and peace, it might create an irreversible impact to the world order. Indian Foreign Minister, Yashwant Sinha, has marked out that "India has a much better case to go for a pre-emptive action against Pakistan than the United States has in Iraq." Washington has strong opinions against a pre-emptive war by India against Pakistan but would lose all creditability by this act of theirs.
The United States has always been the consistent player respecting the boundaries of legal constraints in international affairs. It stood for its tradition of respecting and following the Rule of Law in world politics. It was the United Stated that crafted and designed the UN Charter that prohibited all uses of international force that could not be justified as an act of pre-emptive self defence. "It was the US Government that took the initiative, along with France, to produce the Kellogg-Briand Pact of 1928 that outlawed recourse to war except in instances of self-defence and established the legal foundation for treating aggressive war as a crime against peace. It was also the US, and especially Franklin Delano Roosevelt, that insisted on the veto being given to the leading countries in 1945, ensuring that the UN could not pretend to control the vagaries of geopolitics."7
The war fought with one of the aims being a change in the leadership of Iraq can be seen as a positive step for the people to relieve them from an oppressive regime but this step does not also ensure that Iraq recovers its political independence without a civil war. This action still does not justify the war. On the other hand, the war against Iraq was a breaking point and was also indirectly encouraged by previous decisions of the UN on issues like the war on Afghanistan and the situation in Kosovo, where the use of force was permitted.
On the day Bush announced the 48 hour ultimatum to Saddam Hussein, the World had 'anticipated' the victory of US over Iraq, leading to the acquisition of the oil reserves of Iraq which is evident from the drop of the oil prices and the 'shoot' of the Stock Market. On the other hand, if UN had continued to use peaceful means by further investigating into the matter, the economy would have remained depressed. This shows the US being recognised as a 'global market force' and been accepted as the new hegemonic State.
The entire foundations of international order are based upon the inter-relation of various international institutions. To maintain world order, their decisions are hence expected to be respected in every possible means. The Iraq war has made a great impact to the world system and international order. The greatest impact been made on the United Nations while North Atlantic Treaty Organization (NATO) also suffers a brush. The action of the formation of the so-called 'Coalition of the Willing' by the United States showed their disrespect to NATO discussing about the division between the Old Europe and the New One. To this, the United States reacted in its National Security Strategy, as a completely independent issue standing aside their commitment to lasting institutions like the United Nations, the World Trade Organization and NATO. The UN Secretary-General describes the Iraqi war as a war not in conformity with the Charter.
This act has laid an example of the practice of unilateralism and a selfish approach by States to the solutions of international disputes. The future of international law lays uncertain as it leaves States with a stark choice of choosing between unilateralism or multilateralism, the respect to the rule of law, international institutions, treaties or their own will, disregarding the want of the world community.
The failure of the United States to ratify the CTBT or enter into substantive disarmament negotiations as it had agreed, the acknowledgement by North Korea about its possession of nuclear weapons, the declaration of the United States supported by the 'coalition of the Willing' to use armed forces against Iraq are all ominous developments of non-proliferation, the NPT and the rule of law. The United States and its allies refused access to the International Atomic Energy Agency (IAEA) in Iraq. The IAEA is responsible for the safeguard of fissionable material in possession or the carrying out of any peaceful nuclear activity by a non-nuclear-weapon State Party to the Treaty. Further on, the occupying powers will violate The Hague Regulations and Geneva Conventions if they fail to prevent looting or safeguarding the site, which may result to the reporting of radiation sickness.8
The concept and foundation of international law lies on the pillars of 'equal sovereignties'. These pillars were shaken by the US by ignoring the views of its allies over the issues of raging a war against Iraq and proving itself superior over some of its allies. The Iraq War also raises issues regarding the intervention of a State over the internal matters of other States, arising questions of US, in years to come, intervene over issues ranging from the political affairs to emergencies. This has led to discussions of US possibly intervening into matters of Iran and North Korea leading onto a threat to the Belarussian dictatorship and finally might end up correcting Russia's affairs.
To summarise the entire essay, I feel that that the United States led invasion of Iraq was not justified under any grounds and the aim for which the invasion was carried out, could have been reached in a matured, peaceful and legal manner. This has propelled, as I see the headlines in the newspapers, different forms of terror strikes which shows the anti-feelings of US in the Islamic Community. US and its allies, though have been successful in invading Iraq, are finding it increasingly difficult to restore peace and law. The entire city of Baghdad is crying a chaotic note and there is a clear graph showing the increase in the rate of crime and violence. US has questioned the existence of international institutions like the UN and its powers by this act, setting an example demonstrating that, in international law, might is synonymous to right.
WORD COUNT: 2,465
BIBLIOGRAPHY
BOOKS AND ARTICLES
"Rules of Law and War", B Mahendra, New Law Journal.
"After the Iraq War: Thinking Ahead" by Richard Falk and David Krieger.
"Public Law" by John F. McEldowney, 3rd Edition
"Constitutional and Administrative Law" by Hillary Barnett, 4th Edition
WEBSITES
http://www.qantara.de/webcom/show_article.php/_c-476/_nr-42/i.html
www.globalpolicy.org/security/issues/ iraq/attack/lawindex.htm
www.globelaw.com/Iraq/Preventive_war_after_iraq.htm
www.greenpeace.org/international_en/multimedia/download/ 1/285773/0/paper_on_preventive_war_doctrine.pdf
www.wagingpeace.org/articles/2003/ 05/01_falk_after-iraq.htm
www.qantara.de/webcom/show_article.php/ _c-476/_nr-42/i.html
www.worldpress.org/specials/iraq/
http://specials.politinfo.com/Latest_Specials/Focus_on_Iraq/The_Case_against_War_on_Iraq/the_case_against_war_on_iraq.html
http://66.102.11.104/search?q=cache:QiEqmYF93rwJ:www.asil.org/selections_toc.pdf+future+international+law+after+iraq+war&hl=en&ie=UTF-8
http://www.wagingpeace.org/articles/2003/05/01_falk_after-iraq.htm
http://www.cdi.org/russia/249-8.cfm
http://www.siis.org.cn/english/journal/en20031-2/yangjiemian.htm
http://specials.politinfo.com/Latest_Specials/Focus_on_Iraq/Crimes_of_War/crimes_of_war.html
UN studies US proposals on Iraq, 24 October, 2002. http://news.bbc.co.uk/2/hi/americas/2353967.stm
2European Association of Lawyers for Democracy and World Human Rights, January 2003. http://www.ejdm.de/stop%20the%20war.htm
3 An article in Washing Post dated March 18, 2003.
4 Interview of Professor Crawford by Media Release (2003) http://www.adelaide.edu.au/pr/media/releases/2003/iraq.html
5 The following is the text of the statement by Putin broadcasted by Russia TV on 20 March 2003 http://www.cdi.org/russia/249-2.cfm
6 "Rules of Law and War", B Mahendra, New Law Journal, 24 October 2003.
7 "After the Iraq War: Thinking Ahead" by Richard Falk and David Krieger, May 1, 2003 http://www.wagingpeace.org/articles/2003/05/01_falk_after-iraq.htm
8 Preventive War and International Law after Iraq, Duncan E.J. Currie, LL.B. (Hons) LL.M. http://www.greenpeace.org/international_en/multimedia/download/1/285773/0/paper_on_preventive_war_doctrine.pdf
