Cox, Noel --- "International Law After Iraq: An Ethical or Historical Approach to Justification of Self-Defence" [2006] ALRS 9; (2006) 13(3) Tilburg Foreign Law Review 228-256
Last Updated: 16 August 2010
INTERNATIONAL LAW AFTER IRAQ: AN ETHICAL OR HISTORICAL APPROACH TO JUSTIFICATION OF SELF-DEFENCE
(2006) 13(3) Tilburg Foreign Law Review 228-256
I. Introduction
Arguably one of the seminal
challenges of the twenty-first century will be the role of public international
law, particularly in its
manifestation in what may be termed the global security
system. The importance of this has been shown by the controversial 2003
American-led
invasion of Iraq. While the initial concerns about the legality of
that invasion have largely receded, questions about the relationship
of
international law, state sovereignty, and the global security system, upon which
the invasion focused attention, remain.
This paper will assess some of the
possible implications for the global security system of the Iraq war, and
possible post-war developments
in the law of war. It will review the context of
international law. It concludes with an evaluation of some of the lessons of the
war for the international community. In essence it will ask what is the effect
of the invasion on international law, and how might
the global security system
be revitalised.
II. How international law may be affected by the Iraq invasion
The justification for war can be either theoretical or
historical.[1] The
theoretical aspect is concerned with ethically justifying war and forms of
warfare. The historical aspect, or the ‘just
war tradition’ deals
with the historical body of rules or agreements applied (or at least existing)
in various wars across
the ages. Generally speaking international agreements are
historical rules aimed at limiting certain kinds of warfare.
Historically
the just war tradition developed through the interaction between two countries
within the same cultural environment –
primarily European states. It was
therefore arguably less applicable where there was a great disparity between
combatants, as in
the nineteenth century colonial wars, or for instance.
Whilst parts of the Bible hint at ethical behaviour in war and
concepts of just cause, the most systematic exposition is given by Saint Thomas
Aquinas. In
the Summa Theologicae Aquinas presents the general outline of
what becomes the just war theory. He discusses not only the justification of
war, but also
the kinds of activity that are permissible in war. Aquinas’s
thoughts become the model for later Scholastics and Jurists to
expand.[2] In the
twentieth century it underwent a revival mainly in response to the invention of
nuclear weaponry and other factors including
American involvement in the Vietnam
war.[3] It has now been
revisited due to the Iraq war, but so far without a clear outcome. This raises
two parallel questions: the first
is what is the basis of the law? The second is
what is the proper means of regulating war?
The strategic doctrine of the
Bush administration, laid out in The National Security Strategy of the United
States of
America,[4]
highlights a significant shift from beliefs that dominated Cold War strategic
thought. The new doctrine goes beyond the Cold War
strategy of
deterrence,[5] to one
which backs pre-emptive attacks against terrorists, and states which harbour
them[6] and states with
weapons of mass
destruction.[7] This
doctrine may have profound implications for the world security environment, and
for international law, for it is contrary to
the previously developed norms of
international law, which stressed collective security and the maintenance of
world peace through
the United Nations system. The new doctrine was applied in
full in March 2003, with the US-led attacks on
Iraq.[8]
The war on
Iraq may be central to the development of the ‘new world order’ in
the first half of the 21st century. For, despite its
justification by the US and its allies as a police action to prevent the spread
of weapons of mass destruction
– or any of the other reasons given for
attacking Iraq – the US acted largely outside the pre-existing
international
legal
order.[9] This
unilateralist attitude was illustrated by the US Defence Secretary Donald
Rumsfeld, who wrote that defending the US required
both prevention and,
sometimes, pre-emptive
action.[10]
International law prescribes limited circumstances in which offensive military
action may occur, and it is doubtful that the Iraqi
situation
qualified.[11]
However, it may be that this US approach to the law of war reflects a
theoretical, rather than historical, justification (the right
– indeed
duty – of states to defend their people). Given the changing strategic
situation it may be that this is no less
valid an approach and indeed it may be
more appropriate in an era in which the primary opponents are
ideologically-driven sub-state
groups, rather than nation-states.
Ironically
– but perhaps unsurprisingly – in the aftermath of the war, faced
with scepticism at home and abroad over unproven
claims of weapons of mass
destruction, and an increasingly costly occupation, the US was compelled to back
down from its previously
relatively pure principle, in favour of limited
concession to multilateralism. Coincidentally this may offer an opportunity for
the
world security system to develop a theoretical response to a problem which
has been dominated by an historical approach for over
a century.
III. The Context of International Law
It may be that the American position on Iraq in 2003 reflects international
law, either as it stands now, or as it may be in the future.
For this reason it
is useful to briefly look at the context of international law. Public
international law regulates relations between
nations. That part which relates
to military action is generally known as the Law of Armed Conflict, or anciently
as the Laws of
War. War is both a state of “armed, physical contest
between nations”, and “a legal condition of armed hostility
between
states”.[12] In
common with those aspects of international law which do not relate directly to
the Law of Armed Conflict, the sources of international
law include written and
unwritten rules, treaties, agreements, and customary law. These principally
relate to states, for states
were for long the dominant – if not sole
– participants in international diplomacy and law.
Traditionally the
laws of war were concerned with the regulation of
warfare,[13] usually,
though not exclusively, state
warfare.[14]
Additionally, since the nineteenth century there has been significant growth in
the laws of humanity, or human
rights.[15] It has
been said that these two strands have
joined.[16] There has
been much concentration on humanitarian law, and especially the punishment of
war criminals.[17] But
the basic question of when it is lawful to start an offensive war has received
less attention, if it has not been ignored
altogether.[18]
It
would be simplistic to assume that individual states alone determined what
international law comprised, or that they were always
equally significant. A
look at history, however, tells us that conceptions of world order have by no
means always been shaped by
the model of sovereign co-equal actors with a
territorial basis.
While it is possible for organisations and individuals to
be subjects of international law, States remain the dominant agents in world
politics and the dominant actors in international law. This dominance has led
some theorists to distinguish ‘subjects’
of the law from
‘objects’ of the law, suggesting that although entities other than
States may have rights and duties
in international law, these rights are
conferred upon them by States and, presumably, may be taken away by
States.[19] It is
possibly more correct now to regard international law as a body of rules that
binds States and other agents in world politics
in their relations with one
another, and that is considered to have the status of
law.[20] This is
becoming increasingly irrelevant.
The 20th century,
and particularly the second half of that century, saw the growth of
international organisations and other bodies now accorded
recognition as
subjects in international law. With the growth in both the extent and the reach
of international agreements, treaties,
conventions and codes, the extent to
which individual sovereign States retain the final control over their national
policies may
have diminished, though even in the heyday of State sovereignty,
the late 19th century, the extent to which any State
was truly independent depended much on non-legal factors, such as relative
economic strength.
This tendency is becoming more noticeable in the modern
commercial environment, and especially in respect of the internet. The principal
of these international bodies was the United Nations, which, in succession to
the League of Nations, took a leading role in the post-World
War II global
security system. It may be true that the Iraq war involved one state (or
coalition of states) against another, but
it was very much linked with the
broader US war against terrorism – the historical justification, based as
it is upon state
practice as codified in conventions, was largely inapplicable.
IV. US policy towards Iraq and the international legal order
US policy towards Iraq was driven largely by the American perception of
global security.[21]
In accordance with the newly developing US world view, it was incumbent upon the
US to take action, including military action where
necessary, against any and
every potential
threat.[22] In classic
laws of war terminology this might be thought of as theoretical rather than
historical. The question of whether such action
was legally justified in
international law was one which was either disregarded, or left to others
– particularly the UK –
to
annunciate.[23] That
is not to say that international law per se was disregarded, or
international organisations such as the UN
ignored.[24] But it
did mean that the settled norms of international law, to which many smaller
countries attached primacy, was not determinative
in US strategic
thinking.[25] It was
simply that a historic approach, based on technical rules and precedents, was
deemed inapplicable to a new, highly fluid,
environment.
Whatever the
political, military or diplomatic reasons for taking aggressive military action
against Iraq, there were (broadly speaking)
four possible legal justifications.
These were humanitarian grounds (as used in 1999 to authorise the Balkan
operations[26]);[27]
Iraq’s support for terrorism in the past and its (alleged) possession of
weapons of mass
destruction;[28] a
related argument based on anticipatory self-defence
(‘pre-emption’);[29]
and alleged material breach of UN Security Council resolution 1441, reviving
resolution 678.[30]
The US seems to have relied upon all four – and particularly the
third.[31] The UK
relied upon the
last,[32] as being
arguably the strongest. The specific details of these arguments – except
for the last two – will not be examined
in this paper. But the context in
which they were placed – the world security system – will be.
V. Ius ad bellum and Iraq
Not every exercise of military force is lawful. Rules have developed over
time to control and regulate war, and the tendency over
the past few centuries
has been to limit the freedom of sovereign states to levy
war.[33] The UN
Charter in particular, designed to promote peace, enshrined a growing tendency
to prohibit all wars not waged in
self-defence,[34]
though it does allow collective
self-defence,[35] and
the restoration of international
peace.[36] This left
little room for the ‘just
war’,[37] a
concept which has nevertheless increasingly once again reared its head in the
law on the use of force – the ius ad
bellum.[38]
Whether seen as historically or theoretically-based, this doctrine has been
central to the laws of war, in particular as applied
by sovereign states.
The
US-led attack on Iraq could be justified within the framework of modern
international law on the use of force. It might have been
designed to force
compliance with UN resolutions, but it was not expressly authorised by the
UN.[39] Nor did it
resemble traditional peacekeeping missions, or defensive military actions, such
as the British action for the recovery
of the Falkland Islands in
1982.[40] That is not
to say, however, that the US necessarily acted unlawfully in attacking Iraq. But
the legal basis for its action was at
best
uncertain.[41] This
raises serious questions for the world security system. But it has not spelt the
end of the existing system, despite some initial
pessimistic assessments. If it
cannot fit comfortably into an historical framework, merely describing it as
illegal is unhelpful
and possibly simplistic. We must turn to the second
possible basis for legality of ius ad bellum. This could be for
individual states to define, but we have an existing system which could be
utilised for the construction of broader
principles of international public law.
VI. Role of the UN
As the global security system is currently understood, the UN Security Council alone has the power to make a binding determination in international law that a situation constitutes a threat to international peace and security:
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.[42]
Article 41 of the UN Charter provides for a range of non-military measures which the Security Council may authorise to deal with such a situation and, if they prove ineffective, article 42 permits more direct action:
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the UN.
This is a predominantly historical basis for the laws of law and one based on detailed precedents. However, while the UN itself can take or authorise military action, the Charter does not necessarily exclude the possibility of unilateral action by individual states in certain circumstances. This is recognised by article 51:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the UN, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
This article clearly limits the scope of self-defence to interim measures
– any solution adopted is always subject to subsequent
Security Council
action. However, it does not cover situations where the Security Council has
failed, for some reason, to reach agreement
on taking action. Aggressive war is
no longer a legitimate instrument of national policy, but the use of force is
not necessarily
limited or reserved to the UN alone. Thus, although the general
rules for the conduct of international relations may be categorised
as
historical, there may be additional theoretical justifications available –
particularly those based on ethical considerations.
Many international
lawyers argued that, in the context of the UN Charter, the attack on Iraq was
unlawful at international law given
the circumstances in which it
occurred.[43] It was
argued that the action was neither based on a Security Council decision under
Chapter VII (which will be considered below),
nor taken in individual or
collective self-defence under article 51, the only two justifications for the
use of force that are currently
clearly available under international
law.[44]
Whether
this view of international law is correct depends on whether the law of war has
now accommodated, or is in the process of
accommodating, wars conducted for
humanitarian purposes or to reduce the risk of more widespread
war.[45] The latter
ground is particularly important as a possible justification for action, but
runs counter to the general trend of legal
developments over the past few
centuries. In particular, it appears to be inconsistent with the UN Charter,
though the principle
protagonists in the 2003 Iraqi war relied upon Security
Council resolutions to justify the use of
force.[46]
However, it is also true that the post-World War II security system was in
need of radical reform, with the end of the Cold War, and
that in this new
strategic environment theoretical justifications for war are more important that
historical. The former may be immutable,
the latter founded on strategic
situations which may no longer be relevant. The UN and its public international
law bodies could
work on the theoretical basis of the law of war – because
the focus is no longer on states, less relevant for states alone
to develop
principles of law. We could see signs of this developing in the ongoing
diplomacy surrounding the US involvement in Iraq.
VII. The opening of hostilities without the approval of the UN
The post-World War II security system did allow some freedom of action for states. The exercise of independent action by the US and its allies was not necessarily contrary to the UN Charter. Article 1 of the Charter states that one of the purposes of the UN is:
to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.
However, such police actions are only allowed to suppress a breach of
international law. What had Iraq done? It had not invaded or
threatened a
neighbour. But it had defied, or at least obfuscated and obstructed, UN arms
inspections designed to ensure Iraqi compliance
with the resolutions of the
Security Council which dealt with Iraq’s invasion of and subsequent
expulsion from Kuwait, particularly
resolutions 678 and 687. This was seen by
the US, and those states which supported it, as sufficient to justify war on the
basis
that Iraq had violated the ‘ceasefire’ at the conclusion of
the 1991 Gulf War.
VIII. Pre-emptive self-defence?
The US-led coalition finally took action
in March 2003, acting partly in reliance on article 51 of the UN
Charter.[47] The international legal standard
for whether a particular use of force is justified in self-defence comes from an
1837 incident where
British subjects destroyed an American ship, the Caroline,
in a US port, because the Caroline had been used in American raids into
Canadian
territory.[48] The British claimed the attack
was in self-defence. Through an exchange of diplomatic notes, the dispute was
resolved in favour of
the Americans. US Secretary of State Daniel Webster urged
the following definition of self-defence, which the British accepted:
There
must be a necessity of self-defence, instant, overwhelming, leaving no choice of
means, and no moment for deliberation. [The
means of self-defence must involve]
nothing unreasonable or excessive; since the act, justified by the necessity of
self-defence,
must be limited by that necessity, and kept clearly within
it.[49]
It is hard to see how the US action against Iraq in 2003 could satisfy this
test, unless there was evidence that Iraq intended using
weapons of mass
destruction on its neighbours or the US itself. If that was the case, the UN
arms inspectors did not uncover clear
evidence of
it.[50] Nor have
subsequent US investigations disclosed clear evidence of the presence of these
weapons in Iraq at the relevant
time.[51] With the
passage of time is seems increasingly probable that Iraq did indeed destroy any
remaining stocks of banned weapons some
years before the US-led invasion of
2003.
Until the Caroline
case,[52] self-defence
was a political justification for what, from a legal perspective, were ordinary
acts of war. The positivist international
law of the
19th century rejected natural law distinctions between
just and unjust wars. Military aggression was unregulated and conquest gave good
title to
territory.[53] The
Caroline case did nothing to prevent aggression, but it did draw a legal
distinction between aggressive war and military action in self-defence.
As long
as the act being defended against was not itself an act of war, peace would be
maintained – a matter of considerable
importance to relatively weak
states, as the United States then was – and Iraq was in 2003.
However,
the Bush doctrine makes no attempt to satisfy the criteria of the
Caroline case; there is no suggestion of waiting for a ‘necessity
of self-defence’ that is ‘instant, overwhelming, leaving
no choice
of means, and no moment of deliberation’. The US President is not
‘reserving a right’ to respond to imminent
threats; he is seeking an
extension of the right of self-defence to include action against potential
future dangers. The distinction
between a state of war, and a state of peace, is
thereby blurred.
It has been argued that the right of self-defence should not
be seen as having been restricted by the UN Charter:
The history of Article 51 suggests ... that the article should safeguard the right of self-defence, not restrict it ... furthermore, it is a restriction [no right of anticipation] which bears no relation to the realities of a situation which may arise prior to an actual attack and call for self-defence immediately if it is to be of any avail at all. No state can be expected to await an initial attack which, in the present state of armaments, may well destroy the state’s capacity for further resistance and so jeopardise its very existence.[54]
However, it would seem that there must still be the elements of urgency, immediacy and the absence of credible alternatives to war.[55] A modern version of the Caroline approach is described in Oppenheim’s International Law: [56]
The development of the law, particularly in the light of more recent state practice, in the 150 years since the Caroline incident suggests that action, even if it involves the use of armed force and the violation of another state’s territory, can be justified as self defence under international law where:
an armed attack is launched, or is immediately threatened, against a state’s territory or forces (and probably its nationals);
there is an urgent necessity for defensive action against that attack;
there is no practicable alternative to action in self-defence, and in particular another state or other authority which has the legal powers to stop or prevent the infringement does not, or cannot, use them to that effect;
the action taken by way of self-defence is limited to what is necessary to stop or prevent the infringement, i.e. to the needs of defence ... (Emphasis added.)
Iraq had not attacked any state, nor is there any evidence whatever that an
attack by Iraq was imminent. Therefore self-defence did
not justify the use of
force against Iraq by the United States or any state. Potential capacity to
attack the US, real or imagined,
is an insufficient basis for action.
Furthermore, article 51 requires that any exercise of self-defence is subject to
the Security
Council taking measures to maintain international peace and
security, and indeed requires that any action in self-defence be reported
to the
Security Council.
Even if one puts article 51 aside, self-defence would
appear to require, as a bare minimum, credible evidence of not merely capacity
to strike, but also of an intention to do so, on the part of the government of
the state to be attacked in pre-emptive self-defence.
For, although a desire to
rid the world of a tyrant may be a laudable intention, and ought perhaps to be
allowed by international
law, this was not the ground upon which the war was
waged, though the US argued – as the invasion neared – that the
exile
of Saddam Hussein – something not required by any of the UN
resolutions – would alone prevent a US attack on
Iraq.[57]
It may
however be possible to assert that the Caroline test is no longer
relevant, particularly in situations where national authorities have to
determine – perhaps on the basis of
restricted intelligence – that a
country is a threat to peace generally, or specifically to one’s one
nationals. This
would be particularly valid in the case of weapons of mass
destruction. The immediacy of the threat would not necessarily be as significant
as the magnitude of the threat. This would, of course, be justified in
theoretical terms rather than in reliance on a historical
justification (such as
the UN Charter).
This would be entirely appropriate given that the
Caroline test for pre-emptive self-defence is itself largely a customary
justification of self-defence and only partly enshrined in the UN
Charter. If
the UN Charter is inadequate in the provisions allowing self-defence then it may
well be proper for countries to fall
back upon customary law – provided
the justification is the prevention of war and not its initiation (returning to
the ethical
element).
IX. The ‘war on terrorism’
The invasion of Iraq must
be seen in its wider context, both legal and political. This can be traced back
to 1991. Perhaps more importantly,
the 11 September 2001 attacks on US cities
caused a psychological reaction in the US, which was echoed by the actions of
its government.
This reaction, the response of the UN, and the operations in
Afghanistan which followed, were noted by the author in the New Zealand
Armed
Forces Law Review in
2002.[58]
It may
be that the threat of terrorism does change the legal situation to some extent.
What actually happened in the Security Council
following the attacks of 11
September 2001 looks quite different from what was conceived in the UN Charter.
It also represents a
watershed in the Security Council’s practice. The
Council passed two resolutions on the matter within a few
days.[59] Resolution
1368 characterised the terrorist attacks on New York and Washington as a
‘threat to peace’, and recognised
the right of individual and
collective self-defence. It also declared the Council’s readiness to
authorise military action.
A second Security Council resolution adopted a few
days later, resolution 1373, reaffirmed once again the right of individual
self-defence
and characterised ‘any future terrorist attack to come’
as a threat to international peace. This second resolution also
entails a
comprehensive package of measures to combat international terrorism, all of them
non-military in nature. The package is
so far reaching that it is said to go
beyond the competence of the Security
Council.[60]
The
behaviour of the Security Council can itself perhaps be described as anomalous
– if not contradictory. In the first place,
it recognised the right of
self-defence without having determined an act of aggression. Failing to fulfil
this precondition, the
resolutions jumped the formal link between this notion
and aggression. The right of self-defence can only be lawfully invoked in
response to an armed attack. However, the terrorist attacks were characterised
as a ‘threat to peace’, which does not
in itself necessarily justify
self-defence as a matter of law (or logic). A state is only empowered to act in
self-defence after
having been the victim of an armed attack, and not when it
merely confronts ‘a threat to peace’. There is however some
signs of
a developing consensus that the attacks are best characterised as crimes against
humanity rather than as threats to
peace.[61]
More
importantly, as explained above, a state or coalition of states can only invoke
the right of self-defence for a limited period
of time, normally ‘until
the Security Council has taken the necessary measures’. Contrary to this
provision, in resolution
1373 the Security Council took a set of measures while
recognising the persistence of the United States’ right of self-defence.
Although resolution 1368 had expressed the Security Council’s readiness to
authorise military action, this authorisation never
materialised. The Security
Council could have easily authorised the victim of an armed attack, alone or in
conjunction with other
states, to use force against the aggressor. This is not
only permitted, since the Security Council is unable to enforce such a mandate
itself,[62] but is
also the usual practice. It was done in the Korean War in 1950, and more
recently in the 1991 Gulf War. In both instances,
a coalition of states, led by
the US, aided the state attacked acting in self-defence. However the Security
Council did not issue
any authorisation. This effectively left the operation
entirely to the US to direct as it saw fit – with the tacit approval
of
the UN. In both situations the UN security system did not operate as it was
designed to do. But the end result was the limitation
of war.
The Security
Council’s reaction to the 11 September 2001 events set a precedent
allowing states to use forcible measures in
response to terrorist attacks. This
represents a breakthrough in the ius ad bellum in more than one sense.
First, it accepted a broadening of the use of force in self-defence, since it
can apparently now be invoked
in cases of terrorist attacks. The notion of
self-defence appears to have evolved to include the repulsion not only of
attacks carried
out by states, but also by terrorist organisations. The Security
Council practice regarding international terrorism explained above
gives an idea
of the magnitude of this novelty. In general, this
matter has always been difficult to handle at UN level, given the lack of
agreement as to how to define the term
‘terrorism’. Obviously, most
Third World countries rejected any definition which would characterise as
terrorism efforts
by colonised peoples to resist foreign rule.
Second, a
non-state actor – a terrorist network – has been accommodated in the
regulation of this right. For the first
time, it can lawfully be the object of
actions conducted in the exercise of the right of self-defence.
Third, it
also represents a certain modification of the understanding of state
responsibility. To date, states had an international
duty to ‘refrain from
organising, instigating, assisting or participating in terrorist acts in another
state or acquiescing
in organised activities within its territory directed
towards the commission of such
acts’.[63] The
refusal of some states to extradite indicted terrorists had also on occasion
been subject to condemnation by the Security Council,
which characterised it as
a ‘threat to peace and
security’.[64]
The novelty is that it appears that the breach of this duty can now justify the
use of force in the territory of the harbouring state.
While the state of
Afghanistan was not made directly responsible for the attacks emanating from the
terrorist organisation al-Qaeda,
the forcible measures carried out in response
were inflicted on Afghan territory. The Council’s approach suggests that
the
fact that the harbouring state promoted or merely acquiesced in the
existence of terrorists warrants the violation of its territory.
For the purpose
of legitimising the use of force, harbouring terrorist cells is apparently
equated with an armed attack.
This rationale might be extended to the Iraqi
regime. The difficulty with this is that there was no notion of immediacy, and
little
evidence that Iraq posed a threat to the
US.[65] More
importantly, the Security Council, far from authorising the US action, had
already taken specific non-military action against
Iraq, and was still
deliberating the nature of the next steps to be taken when the US took
unilateral action. However, customary
law would arguably give the US the right
to defend itself in the absence of specific authorisation, if faced with a
genuine threat,
if the UN failed to act in circumstances in which it should have
done so. Thus every state should enjoy the ethical right to self-defence
where
the international security system imposes unduly restrictive limitations on
their freedom of action.
X. Implicit authorisation of force by the UN
While
there is no doubt that article 51 of the UN Charter directly authorises the use
of force in certain circumstances (apparently
now including attacks by
terrorists), its target in this case was more problematic, for Iraq was not
clearly linked to al-Qaeda (although
many people in the US were led to believe
that it was).
Even if Iraq was in material breach of Security Council
resolution 1441,[66]
that did not authorise unilateral US action, though there were valiant efforts
to show that it did, initially by
British,[6]
American,[68] and then
by Australian
authorities.[69] This
was perhaps more important for the latter two states, as their military
commanders in the field, and even their political leadership,
were potentially
liable to prosecution before the new International Criminal Court for waging an
unlawful
war.[70]
The UK
Government relied upon resolution 1441 to justify military
action.[71] The
reasoning for this position was as follows: Authority to use force against Iraq
existed from the combined effect of resolutions
678, 687 and 1441, all of which
were adopted for the express purpose of restoring international peace and
security. In resolution
678 the Security Council authorised force against Iraq,
to eject it from Kuwait and to restore peace and security in the area. In
resolution 687, which set out the ceasefire conditions after the war to liberate
Kuwait (known to the US as Operation Desert Storm), the Security Council
imposed continuing obligations on Iraq to eliminate its weapons of mass
destruction in order to restore international
peace and security in the area.
Resolution 687 suspended but did not terminate the authority to use force under
resolution 678. A
material breach of resolution 687 revived the authority to use
force under resolution 678.
According to the UK Attorney-General, resolution
1441 was worded in such a way that a further decision of the Security Council to
sanction force was not
required.[72] Thus,
all that resolution 1441 required was reporting to and discussion by the
Security Council of Iraq’s failures, but not
an express further decision
to authorise force.
The difficulty with the analysis which was offered was
that it presupposed that an authorisation of force, once made, limited the
role
of the Security Council. The role of the UN Security Council does not cease
merely because it has passed a resolution concerning
a specific
problem.[73] While
Iraq continued to respect the Iraq-Kuwait border, it had failed to disarm in the
manner demanded of it. However, it is doubtful
that this automatically
authorised military intervention to enforce
disarmament.[74] Only
a serious breach of the ceasefire terms, such as an attack upon Kuwait, could
automatically revive the operation of those Security
Council resolutions
authorising the use of all necessary means to expel Iraq from Kuwait and restore
regional peace and
security.[7] This
would require the UN Security Council to consider the matter, and authorise
action if appropriate. In the words of Professor
Hilary Charlesworth:
To trace original authority for the use of force in 678 to current circumstances goes against the plain meaning of words and against the whole fabric of the UN charter.[76]
Professor Charlesworth went further and accused the US, UK and Australian
Governments’ lawyers of selectively using phrases
from UN resolutions to
support their
case.[77] The
difficulty is that diplomatic, political, and military factors meant that the
precise role of the UN, and by extension, of international
law, was being
publicly challenged and questioned. In such circumstances it is difficult to
discern precise legal principles.
Associate Professor Don Rothwell said that
resolution 1441 had expressly left it to the Security Council to determine
whether there
had been a breach by Iraq severe enough to justify the use of
force.[78]
Nor was
the American and allied legal position strengthened by the repeated assertions
by US government figures in the last phase
of pre-war diplomatic manoeuvring,
that the exile of Saddam Hussein – something not required by any of the
resolutions –
would alone prevent a US attack on
Iraq.[79]
It was
certainly arguable that it was US aggression which would – and indeed did
– heighten regional tension. This is
shown, for instance, by Turkey moving
troops into northern
Iraq.[80] Indeed,
resolution 1441 was clearly written in a way which required the Security Council
to consider any Iraqi breach, and consider
the consequences (which were
identified as potentially ‘serious’). The representative of France
welcomed the two-stage
approach required by the resolution, saying that the
concept of ‘automaticity’ for the use of force had been
eliminated.[81] While
the Security Council failed to authorise military force against Iraq, that did
not mean the world security system had failed.
It meant that the members of the
Security Council could not agree that force was justified. In the absence of a
Security Council
authorisation of force, the use of force was contrary to
established international law.
The Security Council had assumed
responsibility regarding Iraq, and it was for the Security Council to decide,
unambiguously and specifically,
that force was required for enforcement of its
requirements. Taking a contextual approach, past Security Council resolutions
authorising
use of force have employed language generally understood to do so.
This was the case with Korea in
1950,[82] and Kuwait,
Somalia, Haiti, Rwanda and Bosnia in the
1990s.[83] In all
these instances, the Security Council responded to actual invasion, large-scale
violence, or humanitarian emergency, not to
potential threats.
Any claim that
‘material breach’ of ceasefire obligations by Iraq justifies the use
of force by the United States is unconvincing.
The 1991 Gulf War was an action
authorised by the Security Council, not an interstate conflict; accordingly, it
was for the Security
Council to determine whether there had been a material
breach and whether such a breach required the renewed use of force.
Strained
interpretations of Security Council resolutions, especially when opposed, as in
the case of Iraq, by a majority of other
Security Council members, cannot
overcome those fundamental principles. Rather, given the values embedded in the
Charter, the burden
is on those who claim the right to use force to show that it
is authorised.[84]
That this was not clearly done is perhaps less an indication that the war was
‘illegal’ than that it is a sign that the
historic justification for
war in this type of situation is inapplicable – and that an ethical
justification might have been
more appropriate, though ultimately this may also
have failed.
XI. Diplomatic consequences of the war
The United States chose to take what was effectively unilateral action because it had decided that this was in the best interests of the US. Speaking of Iraq, President Bush said that:
The regime has a history of reckless aggression in the Middle East. It has a deep hatred of America and our friends. And it has aided, trained and harboured terrorists, including operatives of al Qaeda.[85]
Importantly, this last accusation – though important – remained unproven. The “deep hatred of America” is not a justification for military action. It is in his next sentences that the president provided what was the most significant justification for the war:
The United States of America has the sovereign authority to use force in assuring its own national security. That duty falls to me, as Commander-in-Chief, by the oath I have sworn, by the oath I will keep.
Recognizing the threat to our country, the United States Congress voted overwhelmingly last year to support the use of force against Iraq. America tried to work with the United Nations to address this threat because we wanted to resolve the issue peacefully. [86]
National security – as determined (not surprisingly) by the US, required military action against Iraq. Whether or not international law sanctioned it, or the international community approved, if US authorities determined that a country was a threat, the US was morally justified in taking action. This might be said to provide theoretical (rather than historical) justification for war. In a telling remark, the President continued:
Under Resolutions 678 and 687 – both still in effect – the United States and our allies are authorized to use force in ridding Iraq of weapons of mass destruction. This is not a question of authority; it is a question of will.
Many nations, however, do have the resolve and fortitude to act against this threat to peace, and a broad coalition is now gathering to enforce the just demands of the world. The United Nations Security Council has not lived up to its responsibilities, so we will rise to ours.[87]
This world view required pre-emptive action, even if the Security Council failed to authorise it; indeed, if the UN failed to act when action was justified, it was morally incumbent upon the US and like-minded countries to take action. However, it was questionable whether the action taken reflected the views of the majority of the international community; for example, China maintained that the attacks occurred “in disregard for the opposition of the international community”.[88] Speaking just prior to the outbreak of war the French President Jacques Chirac said that:
France’s action has been inspired by the primacy of international law, and guided by its understanding of the nature of relations between peoples and nations.
Faithful to the spirit of the UN charter, which is our common law, France considers the use of force is a last resort when all other options have been exhausted. France’s stance is shared by the great majority of the international community.
The latest discussions clearly showed that the Security Council was not disposed in the current circumstances to sanction a rush towards war.[89]
Not only was the action of doubtful legality, it was also possibly not justified diplomatically:
The United States has just given Iraq an ultimatum. Whether it is a question – I repeat – of the necessary disarming of Iraq or the desirable change of regime in that country, there is no justification here for a unilateral decision to resort to war.
However events develop in the near future, this ultimatum calls into question the notion that we have of international relations. It commits the future of a people, the future of a region, and the stability of the world.
It is a grave decision at a time when the disarmament of Iraq is under way and the inspections have proved they were a credible alternative for disarming that country.
It is also a decision which compromises – for the future – the methods for peacefully resolving crises linked to the proliferation of weapons of mass destruction. Iraq does not today represent an immediate threat such as to justify an immediate war.
To act without the legitimacy of the United Nations, to favour the use of force over law, is taking a serious responsibility.[90]
A similar position was taken by the German Chancellor, Gerhard Schroeder:
The world is on the eve of war.
My question has been and remains: does the scale of the threat from the Iraqi dictator justify the launch of a war that will certainly bring death to thousands of innocent men, women and children?
My answer in this case has been and remains: No.
Iraq today is a country that is under comprehensive UN supervision. The disarmament steps that the UN Security Council has demanded are being increasingly fulfilled. [91]
Which perspective was correct? If the difference is merely one of interpretation
of diplomatic realities, then the scope of international
law is narrowed. Should
it be the role of the international community – perhaps led by the UN
– to determine what conduct
constitutes a grave enough threat to security
to justify war? The US would undoubtedly say no. Given that the threats to world
security
today come from terrorism, and smaller rouge states, rather than from
superpower or great power rivalry, the UN may no longer be
the appropriate
agency. However, norms of international law do remain, and these do restrict the
freedom of countries to levy war.
International law restricted the use of
force – but the Security Council may have been too slow (certainly it was
in American
eyes) in dealing with Iraq. Should any state have the right to
enforce justice, or its own perception of justice, irrespective of
the view of
the Security Council? This question has particular importance in an age without
effective superpower rivalry or great
power blocks, which served to balance one
another during the Cold War. One nation alone has sufficient resources to act
contrary
to the wishes of the majority of the international community.
XII. The role of the UN and international organisations in the ‘New World
Order’
The US is the sole superpower, though this term is now perhaps
meaningless. In terms of defence expenditure alone the US was far ahead
of any
of the other participants in the 2003 Iraq war, or of the great powers in
general.[92] Any democratic state must be able
to point to legal and moral justification for undertaking offensive action. The
moral arguments
for waging war on Iraq would have been stronger if convincing
evidence had been available regarding Iraq’s possession of weapons
of mass
destruction and/or links to terrorists
groups.[93]
The legal arguments put forward
did not bear close scrutiny. But the fact that the US sought, however
reluctantly, to justify its
action, gives some hope for the future. We cannot
yet be sure what lessons can be learnt. In the longer term it would be desirable
if this war were to be seen as an aberration, rather than as setting a precedent
or developing customary international law. For it
departs in too many
particulars from pre-existing international law, and opens up too many
possibilities for conflict. Unfortunately,
such aberrations are becoming
distressingly common and may in time create a custom which the world would be
better without.
The Security Council may be imperfect, but it should be
improved rather than discarded. The lesson must be that the Security Council,
and the associated security system, remains our best option for preserving world
peace, but that international law will, and indeed
must, adapt to take into
account political realities – including the economic, military, and
political dominance of the US
on the world stage. Whether the invasion of Iraq
will ultimately be held to have been lawful may have profound repercussions for
the future of international law and the UN.
The invasion was initially seen
by many as a grave threat to international law. The sole superpower was ignoring
established customary
law and utilising a strained interpretation of the UN
Charter to justify action. Subsequent developments – particularly the
increasing evidence that Iraq did not have weapons of mass destruction, and the
difficulties facing the occupation forces –
could have been cited as proof
that the US acted improperly. Yet calls for the US – or the UK and
Australia – to be penalised
for their actions have failed to materialise.
The reasons for this may not be hard to find.
Half
a decade ago, Joseph Lorenz, a retired senior US foreign service officer, with
extensive experience centred on the United Nations
and the Middle East,
published a study entitled Peace, Power and the United Nations – A
Security System for the Twenty-first
Century.[94] This
book was a serious discussion, in the context of post-Cold War international
politics, of alternative collective security systems
and means of policing wars
within states. It was an analysis of modern collective security operations, and
outlines a practical design
for reviving the United Nation’s battered
capacity to deter aggression and nurture wider peace.
In light of subsequent
American action, it may be instructive to look at Lorenz’ thesis. He
begins with an outline of the history
of collective security and the related
concept of balance of power. This involves a discussion of the failure of the
League of Nations.
But this book is not concerned with history; it proposes a
new approach. As Lorenz reads the situation, the United Nations approach
to
crisis management is built on an out-dated premise. The collapse of the Soviet
Union, regional challenges to the economic and
political interests of the major
powers, the increase in membership of the UN, all open the way for a smaller,
cheaper, more realistic
UN force, more realistic in expectation, and more
credible in deterrence than the first fifty years of the organisation.
The
reason for this, in Lorenz’ view, is simple. The UN was designed to
prevent global war. There is not now the same fear of
this as there was in
1945-46 when the UN Charter was written. This is reflected in the grey area
between collective security and
traditional peacekeeping which has been apparent
in the most sensitive UN missions since the Gulf War.
What Lorenz calls for
is nothing less than the structural adjustment of the international security
system, to recognise that great
power rivalry is no longer the single greatest
threat to the people of this planet. Unfortunately Lorenz offers little by way
of
suggestions for the form of this ‘new order’. But he is not one
to advocate unilateralism. It is equally true that the
UN is outdated because
the single threat model emphasised the historic approach. The multiple sub-state
threats facing the modern
world are often unsuited to precise definition, and a
formal response based on strict rules.
It may be that this particular war
was unjustified – and even illegal – but the principle that a
sovereign state may sometimes
breach the laws of war and not be punished, seems
to have developing – or rather that it is not a breach in certain
situations.
Traditionally the laws of war were concerned with the regulation of
warfare,[95] usually,
though not exclusively, state warfare. Additionally, since the nineteenth
century there has been significant growth in the
laws of humanity, or human
rights. It may be that the Iraq war is further evidence that these two strands
have joined. There has
been much concentration on humanitarian law, and
especially the punishment of war criminals.
Few had sympathy for Saddam
Hussein or his regime. Whatever the weakness of the legal justification for the
invasion, relatively few
(at least outside the Middle East, where American
motives are often misdoubted) doubted that the allies were motivated by a desire
to rid the region and the world of a particularly unpleasant dictator. The UN
was perhaps not the best organ to oversee such a project,
given the variable
human rights records of many UN member states. But the UN itself may be seen as
more significant than the sum
of its members. The difficulty is the US was
openly opposed to the UN – and the US was by far the largest financial
contributor
to the UN, and the dominant world power.
XIII. Conclusion
It is too early to be sure what effect, if any, the
US-led invasion and occupation of Iraq will have on international law. However,
it has served to remind us that international law is evolutionary, and is not
primarily legalistic. It is applied theory and primarily
practice-driven. But it
is not without a moral context (despite appearances to the contrary).
The
theoretical aspect of the laws of war is concerned with ethically justifying
war. The historical aspect, or the ‘just war
tradition’ deals with
the historical body of rules or agreements applied in various wars. It is this
latter aspect which has
been dealt a blow by US action in Iraq. The task now for
governments, and international lawyers, is to attempt to revitalise global
security system while bearing in mind the new strategic realities. This will
require some measure of consensus as to the proper balance
of national sovereign
autonomy, and international collectivity. It may be seen that post-war US
difficulties in Iraq has already
compelled the US to largely abandon
unilateralism in favour of multilateralism. It may be expected that the global
security system
will evolve in much the manner as hitherto – occasional
false moves, but a general tendency towards the control of warfare
and the
globalisational of security. Once again it may be an opportune time for a new
Grotius to review the state of public international
law, and assist us to
clarify the nature of the law by which we are governed.
The historical basis
of law may have swung back in favour of 19th century
statism. As in many 19th century cases self-interest is
the ostensible basis of action – the world-view of self-defence is
predominant. But the effect
of law is to force legalism to the forefront of
public awareness, unlike during WW2 or even the Korean War. Thus the solution
may
be to emphasise the importance of the role of the legal system, whether
based on the UN, or regional security. But at the same time
it will not exclude
the possibility of the single-state approach, but may render unilateral action
less likely. This could be a gradual
de-emphasising of the process (based on the
historic approach) in favour of principle (based on the theoretical approach),
allowing
states greater flexibility. The danger then would be that principle may
be readily accepted (though even this is doubtful) but how
this works in
practice is uncertain.
[1] See, for
instance, P. Christopher, Ethics of War and Peace: An Introduction to Legal
and Moral Issues
(1998).
[2] The
most important of these are: Francisco de Vitoria (1548-1617), Francisco Suarez
(1548-1617), Hugo Grotius (1583-1645), Samuel
Pufendorf (1632-1704), Christian
Wolff (1679-1754), and Emerich de Vattel (1714-1767).
[3] The most
important contemporary texts include M. Walzer, Just and Unjust Wars
(1977), B. Paskins / M. Dockrill, The Ethics of War (1979), R. Norman,
Ethics, Killing, and War (1995), as well as seminal articles by Thomas
Nagel, “War and Massacre”, Elizabeth Anscombe, “War and
Murder”,
and a number of others, commonly found in the journals
Ethics or The Journal of Philosophy and Public Affairs.
[4] (17 September
2002)
<http://www.whitehouse.gov/nsc/nss.html>
.
[5]
F. Boyle, Nuclear Deterrence and International Law
(1999).
[6] Such as
the operations against the al-Qaeda in Afghanistan; “Limited success in
war on al-Qaeda”
<http://news.bbc.co.uk/2/hi/americas/2638437.stm/>
.
[7]
Such as Iraq, and possibly, for the future, North Korea, or
Iran.
[8] “US
launches huge attack on Iraq”, 20 March 2003,
<http://news.bbc.co.uk/2/hi/middle_east/2869121.stm>
at 21 March
2003.
[9] For
example, see the views of the French and German leaders (18 March 2003)
<http://news.bbc.co.uk/2/hi/europe/2860715.stm>
.
[10]
“Transforming the Military”, 2002 (May-June) Foreign
Affairs Magazine
1.
[11] C.
Banham, “Experts at odds as PM releases legal advice”, 19 March
2003,
<http://www.smh.com.au/articles/2003/03/18/1047749774530.html>
Public Issues Committee of the Auckland District Law Society,
“International law, the United Nations and Iraq”,
<http://www.adls.org.nz/public/media/media6.asp>
“New York City Bar
Urges No US Military Action in Iraq
Without UN Security Council
Authorization”, 15 October 2002,
<http://www.abcny.org/currentarticle/abcny_%20Urges_No_US_Military.html>
.
[12]
Hugo Grotius, De Jure Belli ac Pacis
(1625).
[13] G.
Kewley, International Law in Armed Conflicts
(1984).
[14] H.
Wilson, International Law and the Use of Force by National Liberation
Movements (1988). Laws were allowed, in the view of St Thomas Aquinas in the
thirteenth century, if it was by sovereign authority, accompanied
by a just
cause, and supported by the right intention of the belligerents; St Thomas
Aquinas, “Summa theologica”, Secunda
secundae, Quaestio XL (de
bello), quoted in J. Eppstein, The Catholic Tradition of the Law of
Nations 83 (1935); V. Elbe, “The Evolution of the Concept of
the Just War in International Law”, 33 American Journal of
International Law 669
(1939).
[15] G.
Best, War and Law since 1945 (1994); L.C. Green, The Contemporary Law
of Armed Conflict (1993); C. Swinarski (Ed.), Studies and Essays on
International Humanitarian Law and Red Cross Principles (1984); Bothe et
al, New Rules for Victims of Armed Conflict (1982); J. Pictet,
Humanitarian Law and the Protection of War Victims (1982); G. Best,
Humanity in Warfare: The Modern History of the International Law of Armed
Conflict (1980); A. Cassese (Ed.), The New Humanitarian Law of Armed
Conflict (1979); F. Karlshoven, The Law of Warfare (1973); G. Draper,
“The Geneva Convention of 1949”, 114 Recueil des Cours de
l’Académie de droit international 59; G. Draper,
“Implementation and Enforcement of the Geneva Conventions and of the Two
Additional Protocols”, 164 Recueil des Cours de l’Académie
de droit international 1. Consideration of human rights obligations have
become central to planning military operations; F. Rogers,
“Australia’s
Human Rights Obligations and ADF Operations”, 131
Australian Defence Force Journal 41-44
(1988).
[16] F.
Thorogood, “War Crimes: How Do We Define Them and Punish the
Criminals?”, 119 Australian Defence Force Journal 4-16
(1996).
[17] G.
Simpson, “Nuremberg Revisited? The United Nations War Crimes Tribunal for
the Former Yugoslavia”, 1994 (February)
International Law News 1.
There is, however, no unified system of sanctions in international law; S.
Schwebel (Ed.), The Effectiveness of International Decisions (1971); G.
Fitzmaurice, “The Foundations of the Authority of International Law and
the Problem of Enforcement”, 19 Modern Law Review 1
(1956).
[18] C. af
Jochnick / R. Normand, “The Legitimation of Violence: a Critical History
of the Laws of War”, 35 Harvard International Law Review 72
(1994). See J. Gillingham and J. C. Holt (Eds.), War and Government in
the Middle Ages
(1984).
[19] G.
Schwarzenberger / E.D. Brown, A Manual of International Law 42
(1976).
[20] H.
Bull, The Anarchical Society: A Study of Order in World Politics 127
(1977); E. Lauterpacht, “The Subjects of the Law of Nations”, 63
Law Quarterly Review 444 (1947); R. Higgins, The Development of
International Law Through the Political Organs of the UN 1 (1963); P.
Jessup, A Modern Law of Nations (1968); J.G. Castel, International
Law: Chiefly as Interpreted and Applied in Canada 1
(1976).
[21]
See supra note
4.
[22]
See supra note 10, and
id.
[23]
Secretary of State Colin Powell, “Briefing on Situation With Iraq”,
17 March 2003,
<http://www.state.gov/secretary/rm/2003/18771.htm>
:
We believe and I think you’ve also heard an opinion from British legal authorities within the last 24 hours that there is sufficient authority in 1441, 678 and 687, earlier resolutions, for whatever military action might be required.
[24] A UN
Security Council resolution to use force was being sought until the last several
weeks, though the US Government denied that
this was a legal necessity; White
House Press Secretary Ari Fleischer, “Bush to Address Nation on
Iraq”,
<http://usinfo.state.gov/topical/pol/terror/03031701.htm>
.
[25]
In contrast to the position maintained by the New Zealand Government, and that
of the US at time of the Caroline incident in 1837. Rt Hon Helen Clark,
“Statement to Parliament on the Iraq crisis”, 18 March 2003,
<http://www.beehive.govt.nz/ViewDocument.cfm?DocumentID=16266>
: “New
Zealand’s position on this crisis has at all times been based on its
strong support for multilateralism and
the rule of law, and for upholding the
authority of the Security
Council”.
[26]
N. Cox, “Developments in the Laws of War: NATO attacks on Yugoslavia and
the use of force to achieve humanitarian objectives”,
2002 New Zealand
Armed Forces Law Review
13.
[27] It is
sometimes argued that there is a right to use armed force against a State
without Security Council authorisation where moral
imperatives demand
intervention in order to prevent massive and grave violations of human rights:
A. Roberts, “Humanitarian
War: Military Intervention and Human
Rights”, 69 International Affairs 429 (1993); E. Mooney,
“Presence ergo Protection? UNPROFOR, UNHCR and ICRC in former
Yugoslavia”, 7 International Journal of Refugee Law 436 (1995); M.
Hutchinson, “Restoring Hope: Security Council Resolutions for Somalia and
an Expanded Doctrine of Humanitarian Intervention”,
34 Harvard
International Law Journal 624 (1993).
[28]
“President Says Saddam Hussein Must Leave Iraq Within 48 Hours”,
<http://www.whitehouse.gov/news/releases/2003/03/20030317-7.html>
.
[29]
Id. Antonio Cassese has observed that “[i]n the case of
anticipatory self-defence, it is more judicious to consider such action
as
legally prohibited while admittedly knowing there may be cases where
breaches of the prohibition may be justified on moral and
political grounds and
the community will eventually condone them or meet out lenient
condemnations”, 2001 International Law
307-311.
[30] D.
Rothwell, “US and its allies threaten rule of international law”,
New Zealand Herald, 17 March 2003, at
1.
[31] See
supra note
28.
[32] “War
and law: Attorney General statement”, The Times (London), 17 March
2003 at 1.
[33]
See supra note
26.
[34]
Id.
[35] By
states acting in accordance with Art.
51.
[36] By the
Security Council in accordance with Art. 42.
[37] See
discussion of this concept supra note
26.
[38]
Id.
[39] The
UN normally enforces its own resolutions; Michael Reisman, “Sanctions and
Enforcement” in C.E. Black / R. Falk (Eds.), The Future of the
International Legal Order 273 (1971); J. Brierly, “Sanctions”,
17 Transactions of the Grotius Society 68
(1932).
[40] A.
Coll / A. Arend (Eds.), The Falklands War – Lessons for Strategy,
Diplomacy and International Law
(1985).
[41]
See, for the applicable principles generally, A. Arend / R. Beck,
International Law and the Use of Force: Beyond the UN Charter Paradigm
(1993); J. Gow, Triumph of the Lack of Will: International Diplomacy and the
Yugoslav War
(1997).
[42] UN
Charter, Art.
39.
[43] For just
two examples, see Foreign Policy In Focus Statement, “Lawyers Statement on
UN Resolution”, 5 December 2002,
<http://fpif.org/commentary/2002/0212lawyers.html>
“No legal
justification” 608 Al-Ahram (Cairo, Egypt), 17 – 23 October
2002,
<http://weekly.ahram.org.eg/2002/608/op12.htm>
.
[44]
Humanitarian intervention not being recognised yet (and probably inapplicable in
any case). See O. Bring, “Should NATO take the lead in formulating
a doctrine on humanitarian intervention”, 3 NATO Review 24, 25
(1999).
[45] See
supra note
26.
[46] See
supra note 32; Press Briefing by Ari Fleischer, 13 March 2003,
<http://www.whitehouse.gov/news/releases/2003/03/20030313-13.html>
C.
Banham / M. Seccombe, “PM says war legal, but won’t disclose
advice”, Sydney Morning Herald, 18 March 2003 at
1.
[47]
Press Briefing by Ari Fleischer, 13 March 2003,
<http://www.whitehouse.gov/news/releases/2003/03/20030313-13.html>
.
[48]
The Caroline Case, 29 B.F.S.P. 1137-1138; 30 B.F.S.P.
195-196.
[49]
Letter from Secretary of State Daniel Webster to Lord Ashburton, 6 August 1842,
in J.B. Moore (Ed.), A Digest of International Law 409, 412
(1906).
[50] D.
Ensor, “Fake Iraq documents “embarrassing” for U.S.”,
CNN Washington Bureau, 14 March 2003,
<http://www.cnn.com/2003/US/03/14/sprj.irq.documents/index.html>
.
[51]
“Uproar after US admits Iraq’s terror weapons may not exist”,
New Zealand Herald, 30 May 2003, A1; M. Steel, “Prepare for more
hallucinations from the Gulf War Syndrome”, New Zealand Herald, 30
May 2003, A18.
[52]
For more on this case see K. Stevens, Border Diplomacy: The Caroline
and McLeod Affairs in Anglo-American-Canadian Relations, 1837 — 1842
(1989).
[53]
See, for instance, Lyons Corp v. East India Co [1836] EngR 1155; (1836) 1 Moo PCC
175, 272, 274; [1836] EngR 1155; 12 ER 782; Freeman v. Fairlie (1828) 1 Moo Ind Ap
305, 324, 345; [1828] EngR 63; 18 ER 117; 1 Bl Com 104 (PC); Campbell v. Hall
[1774] EngR 5; (1774) 1 Cowp 204; 20 State Tr 239, 328-329 (KB).
[54] D.W. Bowett,
Self-Defence in International Law 188-192
(1958).
[55] D.W.
Greig, “Self-Defence and the Security Council: What does Article 51
require?” (1991) 40 International and Comparative Law Quarterly
366; K.H. Kaikobad, “Self-Defence, Enforcement Action and the Gulf Wars,
1980-88 and 1990-91”, 63 British Year Book of International
Law 299 (1992).
[56] Sir R.
Jennings / Sir A. Watts (Eds.) 412
(1991).
[57]
Institute for International Law for Peace and Humanitarian Law of the
Ruhr-University Bochum, Germany, “Getting Saddam off
the Island –
The Legality of Regime Change”, BOFAXE No 243E, 21 March
2003.
[58] See
supra note
26.
[59] Res. 1368
was adopted on 12 September and Res. 1373 on 28 September
2001.
[60] See
L. Condorelli, “Les attentats du 11 Septembre et leurs suites:
Où va le Droit International?”, 4 Révue
Général de Droit International Public 829-848
(2001).
[61] See
A. Cassese, “Terrorism is Also Disrupting Some Crucial Legal
Categories of International Law”, 12(5) European Journal of
International Law 993-1002 (2001). However, it has been noted that both
characterisations are not necessarily exclusive. See S. Murphy,
“Terrorism and the Concept of ‘Armed Attack’ in article 51 of
the UN Charter”, 43(1) Harvard International Law Journal 41
(2001).
[62] Art.
43 of the Charter prescribes that: “Members of the United Nations ...
undertake to make available to the Security Council,
on its call and in
accordance with a special agreement or agreements, armed forces, assistance, and
facilities”. However, these
agreements have never been signed.
Consequently, Security Council resolutions have always been enforced by member
states through
an authorisation, which is equally
lawful.
[63] UN
General Assembly Res. 2625 (XXV) of 24 October
1970.
[64] See
Security Council Res. 1267 (1999) concerning the demands on the Taliban
regime to extradite
terrorists.
[65]
See supra note
50.
[66] Which
required compliance with Res. 661, 678, 686, 687, 688, 707, 715, 986 and
1284.
However, the resolution, in particular para. 13 (which recalls
“that the Council has repeatedly warned Iraq that it will face
serious
consequences as a result of its continued violations of its obligations”)
must be interpreted in good faith and in
the light of the fact that enforcement
action under Chapter VII of the UN Charter is an exception to the principle of
the peaceful
settlement of disputes and the prohibition of the use of force in
international relations: N. Grief, “On the legality of a
military strike
against Iraq”, 19 December 2002,
<http://www.bbc.co.uk/radio4/today/reports/international/antistrike_argument.shtml>
.
67
See supra note 32. It seems that the legal advice backing this claim of
legality was not unanimous: E. MacAskill, “Adviser quits
Foreign Office
over legality of war”, Guardian (London), 22 March 2003 at
1.
[68] Powell,
supra note 23:
There were some nations who insisted [during the Security Council debate
prior to the passage of resolution 1441] that a second resolution
would be
required. And we insisted that a second resolution would not be required. And as
we negotiated our way through that, we
made it absolutely clear that we did not
believe that the resolution as it finally passed would require a second
resolution.
[69]
“Memorandum of Advice on the Use of Force Against Iraq, provided by the
Attorney General’s Department and the Department
of Foreign Affairs and
Trade, 18 March 2003”,
<http://www.smh.com.au/articles/2003/03/19/1047749818043.html>
.
[70]
The US and Iraq have not ratified the Rome Statute, which established the Court,
but the UK and Australia have; International Criminal
Court, “Assembly of
State Parties” 14 November 2005,
<http://www.icc-cpi.int/asp/statesparties.html>
[71]
See supra note
32.
[72]
Id.
[73]
See V. Gowlland-Debbas, “Security Council Enforcement Action and
Issues of State Responsibility”, 43 International and Comparative Law
Quarterly 55 (1994); C. Gray, “After the Ceasefire: Iraq, the Security
Council and the Use of Force”, 65 British Year Book of International
Law 135
(1994).
[74]
Dominique de Villepin, Minister of Foreign Affairs, to French television
stations (Paris, 13 March 2003),
<http://www.diplomatie.gouv.fr/actu/bulletin.gb.asp?liste=20030314.gb.html#Chapitre2>
:
We have said all along that this idea [of automatic authorisation of force] was dangerous. UNSCR 1441 is geared to the peaceful disarmament of Iraq, clearly saying that the use of force can be only a final resort.
See also Banham supra note 11.
75
See supra note
30.
[76] See
Banham, supra note 11.
[77]
Id.
[78]
Id.
[79]
See supra note
57.
[80]
“Turkey opens airspace but invades northern Iraq”, Straits
Times (Singapore), 22 March 2003 at
1.
[81]
“Security Council holds Iraq in ‘Material breach’ of
disarmament obligations, offers final chance to comply, unanimously
adopting
resolution 1441 (2002)”, Press Release SC/7564, 8 November
2002.
[82] Prior to
General Assembly action, Security Council res. 83 recommended that UN member
states provide “such assistance to the
Republic of Korea as may be
necessary to repel the armed attack and to restore international peace and
security in the area”.
[83] ‘All
necessary means’ or ‘all measures necessary’.
[84] For these and
other reasons why existing Security Council resolutions did not authorize use of
force against Iraq, see J. Lobel / M. Ratner, “Bypassing the
Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the
Iraqi Inspection
Regime”, 93 American Journal of International Law
124-154 (1999); R. Singh / A. Macdonald, “Legality of use of force
against Iraq: Opinion”, 10 September 2002,
<www.lcnp.org/global/IraqOpinion10.9.02.pdf>.
[85]
See supra note
28.
[86] See
supra note 28;
id.
[87]Id.
[88]
The Times (London), 20 March 2003 at
1.
[89] See
supra note
9.
[90]Id.
[91]Id.
[92]
The US spends $343 billion, as compared with the UK’s $34.5 billion and
pre-war Iraq’s $1.4 billion. Other major powers
spend as follows: Russia
$56 billion, China $39.5 billion, Germany $33.3 billion, France $27 billion,
India $15.9 billion: “Balance
of power: US and Iraqi forces”, BBC,
19 March 2003,
<http://news.bbc.co.uk/2/hi/middle_east/2839761.stm>
.
[93]
J. Diamond, “Connection sought between Iraq, al-Qaeda”, USA
Today, 29 July
2002.
[94] J.P.
Lorenz, Peace, Power and the United Nations – A Security System for the
Twenty-first Century
(1999).
[95]
See supra note 13.