|The second Bush war and international law 2|
The right of individual self-defence of the United States is probably based on three grounds. One, the attempted attack on Bush Senior. But the right of self-defence is only available against an "armed attack" and the response has to be sufficiently "immediate", leaving no choice of other means and as short a time as the context allows for deliberation. A second ground would be the suspected linkages of Iraq with Al Qaeda, an international terrorist organisation that was behind the September 11, 2001 terrorist attacks on the US. This ground of self-defence against Iraq will only be tenable on proof — not just allegations — of definite connection between Iraq and that terrorist organisation in relation to the September 11 attacks. A third possible justification of self-defence offered is the so-called right of pre-emptive attack. The US argument is that Iraq has deadly weapons of mass destruction (WMDs), delivery systems and subsystems, that these will be deployed against the United States and that the United States has a right to take pre-emptive action to prevent this eventuality. The issue of WMDs has been central to the work of the UN inspectors led by Hans Blix and El Barodei and tangible results were being achieved and reported to the Council. At any rate, the argument of a "possible Pearl Harbour" does not fit in with the scenario of a right of self-defence against an armed attack. "In the case of individual self-defence," stressed the International Court in the Nicaragua case, "the exercise of this right is subject to the State concerned having been the victim of an armed attack." Legitimisation of the so-called right of pre-emptive attack would be a free licence for unrestrained and whimsical unilateral use of force by the mighty against the weaker countries, and does violence to the UN Charter scheme of international community action through the instrumentality of the Security Council.
Enforcement of international sanctions for compliance of disarmament obligations does not justify unrestrained unilateral resort to armed force against an obligation-breaking State by individual countries, much less any unilateralism at all by the latter, unless they are individually and directly affected by the breach of sanctions (in which case the retaliatory action must be generally proportionate to the adverse effects of the breach). Breach of obligations imposed by the international community must be dealt with by international community institutions, and if they are not well equipped for the task, the members of the international community should pool in their resources to enable these institutions to act in each case. The Bush statement of March 17 that the UN "Security Council has not lived up to its responsibilities, so we will rise to ours" has been a most irresponsible and arrogant statement for the most powerful country on earth to make. The ban on unilateral use of force in international relations under Article 2.4 of the Charter is absolute and near-total, except in case of self-defence pursuant to Article 51.
Should enforcement of obligations undertaken by Iraq to disarm itself in terms of the relevant Security Council resolutions be the core objective of the US-UK coalition’s current military action, would such an action be forthcoming in respect of every State (including each of the coalition partners) violating or failing to implement disarmament obligations? For instance, Article VI of the Nuclear Non-Proliferation Treaty (1968) imposes an obligation on all parties to the treaty to evolve "effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control." How many of these coalition partners have taken steps in this regard? Is the international community entitled — at least theoretically — to use force against them to enforce such obligations? Or would such coercive enforcement of disarmament obligations apply only against non-nuclear weapon powers, and if so, would it endorse the view that nuclear disarmament obligations are only for the non-weapon countries to comply with? It is difficult to conceive that the nuclear powers party to the treaty had ever seriously contemplated the possibility of renouncing all use of nuclear weapons. Josef Goldblat’s authoritative view is that even after the Cold War, after shedding a little of the excessive stock of military hardware by the nuclear powers, "the nuclear postures remain unchanged" between some of them. Indeed, questioning the self-disarmament qualifications of the US-UK combination is not material to determine whether it is permissible for the US-led forces to resort to unilateralism on the pretext of enforcing Iraq’s international disarmament obligations. Philip C. Jessup of the United States, an eminent international law authority and also a former legal advisor in the US Department of State, has clearly stated that no State could resort to the use of force on the pretext of promoting the "Purposes of the United Nations" (a phrase employed in Article 2.4 of the Charter) because such a use of force would itself be inconsistent with the very first Purpose of the United Nations, ie, "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…" (Article 1.1 of the Charter). The term "or in any other manner inconsistent with the Purposes of he United Nations" in Article 2.4, according to Ian Brownlie, was not intended to have any restrictive effect on that article, but to reinforce the prohibition of the use of force, and perhaps, to refer to the legality of force when this took the form of enforcement action sanctioned by the Security Council.
No State can claim a unilateral right to use force against another State on the pretext of combating terrorism either, unless it acts in self-defence, in which case the conditions of the right of self-defence apply. These conditions are as follows: Use of force in self-defence is only legally permissible against an armed attack. It is further conditioned and limited by the principles of necessity, immediacy (without undue delay), and proportionality. It must also be in conformity with the principles of international humanitarian law.
The so-called right of humanitarian intervention in Iraq offers a range of justifications. The US argument is that Saddam Hussein is a detestable dictator, that Iraq must have a regime change and the people there deserve a western form of democratic government, that under Saddam, the Iraqi people constantly suffer gross violations of human rights, and that the UN sanctions have failed to bring down the Saddam regime. So President Bush declared, "Saddam Hussein and his sons must leave Iraq within forty-eight hours." In spite of the crescendo of approval by a number of pro-establishment international lawyers of the United States and some other western countries since the Yugoslavia interventions, the principles and rules of international law remain founded on legitimacy and consensus among the members of the international community. Any action against gross violations of human rights must come from competent international institutions such as the Security Council, reflecting an international community consensus, not based on unilateral and selective judgments by a mighty power. All the more so when it involves core issues of national self-determination, such as regime change.
Finally, the Bush statement claims with impunity: "The United States of America has the sovereign authority to use force in assuring its own national security." The sovereignty argument is the hallmark of bankruptcy of international legality and legitimacy. Anything can be ‘justified’ on grounds of sovereignty, unless one recognises — and the US does not — that national sovereignty is subject to law. And this is not the first time the US has raised it on the international plane. It is common among government legal advisers to refer to the ruling of the Permanent Court of International Justice in the Lotus case: "Restrictions on independence of States cannot be presumed." But the Court made this observation while stressing the need for evidence of both permissive and prohibitory rules to determine the international validity of an act of a State. Thus the Court observed significantly: "[T]he first and foremost restriction imposed by international law upon a State is that, failing the existence of a permissive rule to the contrary, it may not exercise its power in any form in the territory of another State." The International Court further clarified in the Anglo-Norwegian Fisheriescase in 1951, that every State has a burden to prove that its unilateral acts on the international plane are in conformity with international law. So no State, however mighty, enjoys absolute sovereignty, only sovereignty under law.
It is a matter of historical record that some of these current defenders of democracy and human rights failed in their test of commitment to these ideals when they supported and collaborated with dictators in the past, or when, not long ago, strong organisational actions were proposed against certain repressive White minority regimes in southern Africa.
Unilateral resort to armed force by a group of States outside the framework of the UN Charter remains condemnable both under international law and international morality. The International Court declared in 1949, at the height of the first Cold War: "The alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organisation, find a place in international law. Intervention is perhaps still less admissible in the particular form it would take here; for, from the nature of things, it would be reserved for the most powerful States, and might easily lead to perverting the administration of international justice itself."
On September 11, 1990, at a time when the United States was emerging as the sole superpower on earth, President George Bush Sr. asserted in his address to a joint session of the US Congress: "Today, a new world is struggling to be born. A world quite different from the one we have known. A world where the rule of law supplants the rule of the jungle. America and the world must support the rule of law." Ironically, however, the second Bush war will go down in the history of humankind as one dictated by neither the rule of law nor the rule of international legitimacy, but driven by pure caprice and greed for the natural resources of a developing country.
The long and short of the above analysis is that the second Bush war has been an illegal war, ab initio,in terms not only of the UN Charter, but also of the peremptory norms of international law. As the war unfolds, other international law issues such as the proportionality of use of force (the "shock and awe" military strategy and the resulting shock, pain and death of civilians), compliance with the rules of international humanitarian law (allegations of mistreatment of POWs, use of civilians as human shields, etc.), protection of historical monuments (bearing in mind that Iraq has been the cradle of as many as three ancient civilisations), and so on will need to be examined in terms of objective evidence that may come to light, perhaps at the end of the war.
V.S. Mani is Professor of International Legal Studies, Jawaharlal Nehru Iniversity, New Delhi