PRESENT LEGAL REVIEW OF WAR IN IRAQ:
WHO IS THE DEFENDANT, BUSH OR SADDAM?
The US President Bush in his televised address to his nation on 17 March 2003 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”. The question is why Saddam and his sons should leave Iraq, their motherland on the dictate of a foreigner?
The Bush ultimatum was the US response it failure to get an US-UK-Spanish draft resolution through UN Security Council. The draft resolution would have the Council to decide that “Iraq will have failed to take the final opportunity afforded by resolution 1441 (2002) unless, on or before 17 March 2003, the Council concludes that Iraq has demonstrated full, unconditional, immediate and active cooperation in accordance with its disarmament obligations under resolution 1441 (2002) and previous relevant resolutions, and is yielding possession to UNMOVIC and the IAEA of all weapons, weapon delivery and support system and structures, prohibited by resolution 687 (1991) and all subsequent relevant resolutions, and all information regarding prior destruction of such items”.
The Resolution 661 of 1990 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 of the legitimate Government of Kuwait”. The Resolution 678 (1990) authorized “Member States co-operating with the Government of Kuwait” – a euphemy for then US-led 28 nation multinational 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”. The Resolution 1441 of 2001 noted that the Council “has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligation”.
Evidently, the draft resolution did not anticipate any role for the Council in this second Iraq war, save that of reaffirmation of the authorization it had given, more than a decade ago, to the US-led multinational force. This was against the legal position that once a decision is 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 other permanent members of the Security Council, namely, France, Russia, and China, strongly objected to the Council into another authorization of use of force against Iraq. They were of the view that peace be given another chance, and that the UN inspectors be given some more time. Why all this rush to use of force?
According the US and UK, previous Council resolution on Iraq, including those of 661 and 678 (1990) and 687 (1991), already embodied adequate legal basis for any use 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. The Resolution 661 of 1990 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 of the legitimate Government of Kuwait”. The Resolution 678 (1990) authorized “Member States co-operating with the Government of Kuwait” – a euphemy for then US-led 28 nation multinational 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”. The Resolution 687 (1991), adopted after 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 constitutional prerogative to enforce its previous resolutions remains exclusively with the Council.
The justification for unilateral use of force include a right of collective self-defence, a right of individual self-defence, a right or a duty to enforce international sanctions, a right of action to prevent and combat international terrorism, and a right to humanitarian intervention.
The right of collective defence of Kuwait was specially recognized by a Security Council resolution of 1990. By Resolution 661 of 6 August 1990, the Council affirmed through its sixth preamble paragraph, “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”
Armed attack is the pre-condition for invocation of the right of collective self-defence. The international Court of Justice (ICJ) held in the Nicaragua case: – “States do not have a right of “collective” armed response to acts which do not constitute an “armed attack”. (ICJ Reports 1986, p. 14, at. p. 110, para. 211).
The right of individual self-defence of the United States is probably based on three gorunds. First, 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. Second, the suspected linkages of Iraq with Al-Qaeeda, an international terrorist organization that was behind the 11 September 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 organization to the 11 September attacks. Third, the so-called right of pre-emptive attack. The US argument is that Iraq has deadly weapons of mass destruction (WMD’s), delivery systems and subsystems, that these will be deployed against the US and that the US 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 tangiable results were being achieved and reported to the Council. The argument of a “possible Pearl Harbour” does not fit in with scenario of a right of self-defence against an armed attack. “In the case of individual self-defence,” stressed the International Court in Nicaragua case, “the exercise of this right is subject to the State concerned having been the victim of an armed attack”. Legitimation 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 odes violence to the UN Charter scheme of international community action through the instrumentality of the Security Council.
Discussing the legality of the concept of “anticipatory self-defence”- more fashionable name for the rush and ready “pre-emptive attack” – Albrecht Randelzhofer’s commentary on Article 51 of the UN Charter has this to say, “An anticipatory right of self-defence would be contatry to the wording of Article 51 (‘if armed attack occurs’), as well as to the object and purpose, which is to cut a minimum the unilateral use of force in international relations. Since the (alleged) imminence of an attack cannot usually be assessed by means of objective criteria, any decision on this point would be necessarily have to be left to the discretion of the state concerned. The manifest risk of an abuse of that discretion which thus emerges would de facto undermine the restriction to one particular case of the right of self-defence”. Therefore Art. 51 has to be interpreted narrowly as containing a prohibition of anticipatory self-defence.
The Bush statement of 17 March that “Security Council has not lived up to its responsibilities, so we will rise to ours” has been 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.
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”.
Philip C. Jessup has clearly stated that no state could resort to use of force in the pretext of promoting the “Purposes of the United Nations” – a phrase employed in Article 2 (4) of the Charter -, because such as United Nations, i.e., “to take effective collective measures for the prevention and removal of threats to the peace …” (Article 1(1) of UN Charter).
The term “or in any manner inconsistent with the Purposes of the United Nations” in Article 2(4), according to Ian Brownlie was not intended to have any restrictive affective on that article, but to reinforce the prohibition of the use of force, and perhaps, to refer to the legality of force when his took the form of enforcement action sanctioned by the Security Council.
No state can claim a unilateral right to use force against another state in the pretext of combating terrorism either, unless it acts in self-defence, in which case the conditions of the right of self-defence apply.
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 of the principles of international humanitarian law.
The so-called right of humanitarian intervention against Iraq offers a range of justification. 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.
Any action against gross violations of human rights must come from competent international institution such as the Security Council reflecting international community consensus, not based on unilateral and selective judgments by a mighty power. The more so when it involves core issues of national self-determination, such as regime change. The International Court held in the Nicaragua case ruled: – “A prohibited intervention must accordingly be one bearing in matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices which must remain free ones”. The Court further held that while a state might “form its own appraisal for the situation as to respect for human rights” in another state, “the use of force could not be the appropriate method to monitor or ensure such respect. With regard to the steps actually taken [in this case], the protection of human rights, a strictly humanitarian objective, cannot be compatible with the mining of ports, the destruction of oil installations, or gain with the training, arming and equipping of armed bands in the state accused of human rights violations.
Finally, the Bush statement claims with impunity, “The United States of America has the sovereignty 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 ground sovereignty, unless one recognizes that national sovereignty is subject to law. So not state, however mighty, enjoys absolute sovereignty, only sovereignty under law.
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 organization, 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 preventing the administration of international justice itself”. (Corfu Channel case, ICJ Reports 1949, p. 4, at p. 35. This ruling was in the context of the British justification of use of force in self-defence or self-help, in the forcible removal of mines from the Albanian territorial waters with the help of naval minesweepers).
The Conclusion is that the Second Bush war has been illegal war, ab initio, in terms not only of the UN Charter, but also of the peremptory norms of international law. As the war unfold itself, other international law issues such as the proportionality of use of force (the “shock and awe” military strategy and the resulting shock, pain death of civilians), compliance with the rules of international humanitarian law (allegations of mistreatment of POWs, use of civilians as a human shield, etc.), protection of historical monuments (bearing in mind that Iraq has the cradle of as many as three ancient civilizations). So it means Bush should changes or at least accompanies Saddam position in the Court at the present. Let’s dragging Mr. Bush either to The International Court of Justice (ICJ) or The International Criminal Court (ICC), shall we?