|The second Bush war and international law 1|
In a colloquy over the trial of Rebecca, Sir Walter Scott had one of his characters say — "I ordered the hall for his judgement seat." "What," asked Bois Guilbert, "so soon?"
"Aye," replied the Preceptor, "the trial moves rapidly on when the judge has determined the sentence beforehand.’
The sentence against Iraq was delivered before the trial by the sole surviving superpower on earth, the United States of America. In his televised address to his nation on March 17, 2003, US President George Bush demanded: "Saddam Hussein and his sons must leave Iraq within 48 hours. Their refusal to do so will result in military conflict commenced at a time of our choosing." Why would Saddam and his sons leave Iraq, their motherland, on the diktat of a foreigner? Following this, on March 20, American and British air forces started pounding various parts of Iraq, and the so-called allied forces began pouring into the southern part of Iraq. Thus began the Second Bush War against Iraq. The Bush ultimatum of March 17 was the US response to its failure to get a US-UK-Spanish draft resolution through the UN Security Council. Tabled ten days in advance of a deadline of March 17 — a deadline arbitrarily fixed by its co-sponsors — the draft resolution would, in the first place, have the Council decide that "Iraq will have failed to take the final opportunity afforded by Resolution 1441 (2002) unless, on or before March 17, 2003, the Council concludes that Iraq has demonstrated full, unconditional, immediate and active cooperation in accordance with its disarmament obligations under Resolution 1441 and previous relevant resolutions, and is yielding possession to UNMOVIC (UN Monitoring Verification and Inspection Commission) and the IAEA (International Atomic Energy Agency) of all weapons, weapons delivery and support systems and structures, prohibited by Resolution 687 (1991) and all subsequent relevant resolutions, and all information regarding prior destruction of such items." Second, the joint draft resolution recalled in its very first preambular paragraph a selection of its previous Iraq resolutions, including those of 661 and 678 of 1990. Resolution 661 reaffirmed "the inherent right of individual or collective self-defence, in response to the armed attack by Iraq against Kuwait, in accordance with Article 51 of the Charter" and asked all States "to take appropriate measures to protect assets of the legitimate Government of Kuwait." Resolution 678 authorised "Member States co-operating with the Government of Kuwait" — a euphemism for the then US-led 28-nation force — "to use all necessary means to uphold and implement Security Council Resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area." Third, the joint draft resolution would have the Council pre-determine failure on the part of Iraq to comply with Resolution 1441 in so far as the subsequent Iraqi declaration contained "false statements and omissions." It also noted that the Council "has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations."
In other words, simply on the strength of the draft resolution, if adopted, "Member States co-operating with the Government of Kuwait" would have been entitled "to use all necessary means" to uphold and implement all Iraq-relevant Security Council resolutions adopted since August 2, 1990 (the day Iraq invaded Kuwait). Evidently, the draft resolution did not anticipate any role for the Council in this second Iraq war, save that of reaffirmation of the authorisation it had given, more than a decade ago, to the US-led multinational force. This was against the legal position that once a decision has been taken by the Security Council, pursuant to Article 42 of the UN Charter, to use armed force against a State, the Council shall be in total control of the prosecution of all military measures including "plans for application of armed force"(Articles 44-49). The draft resolution assumed that this post-Cold War phenomenon of ‘contracting out’ the Council’s powers of enforcement action under Chapter VII of the Charter was legal. But it was a palpably wrong assumption, and a perversion of the very basis of the Charter concept of enforcement action. International sanctions for "any threat to the peace, breach of the peace, or act of aggression" or for any breach of obligations embodied in Security Council resolutions is the mandate and discretion of the Council itself. It is a special power delegated to the Council alone by States party to the Charter. Even the Council itself is not legally competent to re-delegate this mandate and discretionary power to any State or States by abdicating its control over the proceedings. As a result, the Council decision for such re-delegation will not be legally binding on UN members.
The draft resolution, however, would have the Council decide that "Iraq will have failed to take the final opportunity afforded by Resolution 1441." Such a decision was in fact anticipated by Resolution 1441, which provided for a variety of reports from Iraq, the UN Inspectors, and the UN Secretary-General within various time-limits and anticipated decisions by the Council on "the need for compliance with all of the relevant Council resolutions in order to secure international peace and security." Yet the draft resolution did not anticipate nor did it specifically provide for any observance of the principle of audi alteram partem, the age old Anglo-Saxon and Continental principle of natural justice, now part of international procedural law.
Nor would it wait for further reports from the UN inspectors who were at the time at serious work in different parts of Iraq, finding Iraqi missiles and supervising in their destruction. The co-sponsors would have pushed for its adoption on or before March 17 without waiting for further reports from the UN inspectors. The other permanent members of the Security Council — namely France, Russia and China — strongly objected to the Council rushing into another authorisation of use of force against Iraq. They were of the view that peace should be given another chance, and the UN inspectors some more time. Why this rush to use force?
COUNCIL RESOLUTIONS 661, 678 and 687
According to the United States and the United Kingdom, previous Council resolutions on Iraq, including those of 661 and 678 (1990) and 687 (1991), already embodied adequate legal basis for any use of force against Iraq. Evidently, they did not want to give the Council an opportunity to specify what action it would take, as that would have deprived them of their so-called ‘right’ to unilateral military action. The Bush ultimatum specifically invoked resolutions 678 and 687.
As mentioned earlier, resolution 661 of 1990 reaffirmed "the inherent right of individual or collective self-defence, in response to the armed attack by Iraq against Kuwait" and appealed to all States "to protect assets of the legitimate Government of Kuwait" while resolution 678 authorised the US-led multinational force "to use all necessary means to uphold and implement Security Council Resolution 660" and other relevant resolutions "to restore international peace and security in the area." Both Resolutions 661 and 678 were adopted specifically for the purpose of securing Iraq’s withdrawal from Kuwait and upon such withdrawal the use of force authorisation ceased to exist. The Council did not and, constitutionally could not, issue any such authorisation for all time to come. Also, there is a view that the initial authorisation itself was of doubtful legality. Resolution 687, adopted after the Iraqi withdrawal, imposed on Iraq a broad range of devastating disarmament obligations, with the Council opting "to remain seized of the matter and to take such further steps as may be required for the implementation of this resolution and to secure peace and security in the area." Thus the constitutional prerogative to enforce its previous resolutions remains exclusively with the Council.
ISSUES OF INTERNATIONAL LEGALITY OF THE WAR
The numerous statements emanating from the US Government since late last year and in particular in recent weeks, as also the Bush ultimatum, have thrown up a wide range of justifications for the unilateral use of force. They include a right of collective and individual self-defence, a right or duty to enforce international sanctions, a right of action to prevent and combat international terrorism, and a right to humanitarian intervention.
The right of the collective defence of Kuwait was specifically recognised by a Security Council resolution of 1990. But this right cannot continue to exist for so long, merely on the basis of the alleged violations by Iraq of the obligations imposed on it by the Council through its various resolutions. Under Article 51 of the Charter, the right of collective self-defence ceased to have a legal basis when the Iraqi invasion of Kuwait was vacated in March-April 1991, and when the Council stepped in. Armed attack is the pre-condition for invocation of the right of collective self-defence. The International Court of Justice held in the Nicaragua case: "States do not have a right of ‘collective’ armed response to acts which do not constitute an ‘armed attack’."
V.S. Mani is Professor of International Legal Studies, Jawaharlal Nehru Iniversity, New Delhi