Indonesia Becomes UN Security Council Members


INDONESIA WILL BE THE KEY PLAYER
TO INTERNATIONAL PEACE
By: Pan Mohamad Faiz
Good news comes from New York, U.S. where the United Nation located. The United Nations Security Council (UNSC) announced last Monday that Indonesia had become a nonpermanent member of the Security Council (SC) for two-year terms starting 1 January 2007. Indonesia’s strongest competitor in that race to represent Asia was Nepal, following the sudden withdrawal of South Korea last month.

As one of Indonesian citizens I shall proud to my lovely country, because become the member of UNSC it means that Indonesia will get an acknowledgment from world nations that can play a key role in maintaining global peace, security and stability.

The main reasons why mostly of UN Countries voted Indonesia become SC member because Indonesia has played a significant role in maintaining peace and security at both the regional and global levels and Indonesia is also a developing country that is the world’s third largest democratic state, with a moderate vision, and the fourth largest state by population that warrants representation in the Security Council.

Being a peacekeeper country is a fundamental principle in the conduct of Indonesian foreign policy which has been mandated in Indonesian Preamble of the 1945 Constitution that Indonesia have to actively participate in the maintenance of international peace and security.

As we know that the international geopolitical situation in the last few years has been tinted with the growing use or threat of force. Pre-emptive unilateral actions are eroding the painstakingly built paradigm of multilateralism. Discrimination and double standards are on the rise. Therefore, it is urgently required that a moderate voice promoting multilateralism and dialog should resonate again inside the hallowed chambers of the Security Council.

The big advantages when Indonesia becomes the SC member that Indonesia had a very independent foreign policy, had no state enemies and had close relations with major powers, Asia, and all SC members. It will be strong diplomatic assets, which will allow the country to act as a bridge to promote international peace and stability.

The participation of Indonesia in the Security Council during the next two years will promote not only its national interests, but also the interests of other developing countries in the maintenance of international peace and security, in accordance with the UN charter and international law.

That’s why to fulfill its role in Security Council Indonesia should work closely with South Africa and Guatemala, along with the remaining elected members, Congo, Ghana, Peru and Qatar, all members of the Non Aligned Movement (NAM), to consolidate the views of the developing countries.

In another way, as a leading member of the Organization of Islamic Countries and the nation with the world’s largest Muslim population, Indonesia can play a significant role in issues related to the Middle East, particularly the simmering question of the Palestinian occupied territory which is the prominent issues in the UNSC agenda as well as the latest tensions on the Korean peninsula crisis in the drama over North Korea’s nuclear program.

It should be remembered, however, that at the Security Council the five permanent members hold supreme power with their veto right. Like it or not, the United States also remains the sole global superpower. For the latest example, the prospect of Venezuela gaining membership to the Security Council was worrying for major powers, especially the United States, due to Venezuelan President Hugo Chavez has set himself up as one of the most outspoken opponents of U.S. President George W. Bush’s administration. Because of that Venezuela hadn’t elected as a member of UNSC. To anticipate the same condition and situation inside the SC forum, however, Indonesia and others member can do is actively contributed to the enhancement of multilateral cooperation in countering the U.S. negative domination.

Constructive cooperation, not confrontation, provides the best chance for Indonesia to help in the creation of a better world. This can only be achieved if Indonesia sets a good example for the world, especially for the third world countries.

Godspeed and Glorious Indonesia…!

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North Korea Nuke Test


NORTH KOREA NUKE TEST:
THE FAILURE OF BUSH DIPLOMACY
By: Pan Mohamad Faiz *

Several days ago North Korea claimed a successful nuclear test, despite pressure from the international community for it to abandon its nuclear weapons program. It also has brought into sharp focus on International peace and security, provisionally in East Asian Region which can trigger an arms race.

The blast was believed to have occurred at an underground facility in North Hamgyong province of North Korea. Many defence analysts believe North Korea does not yet have the capability to do that, but there seemed no reason to believe North Korea was bluffing. Both Russian and U.S. experts said they believed the claim was accurate and that the explosion may have had the power of about 15 kilotons of TNT, roughly the same as the Hiroshima bomb in 1945.

The world leaders condemn the North Korean act because it has threatened peace and stability. Therefore they are calling for sanction in the Security Council on North Korea under Chapter Seven of The UN Charter which deals with “threats to the peace” and “acts of aggression”.

International Atomic Energy Agency reported nuclear test threatens the nuclear non-proliferation regime and creates serious security challenges not only for the East Asian region but also for the international community. The problem is Pyongyang pulled out of the nuclear Non-Proliferation Treaty in 2003 and has refused for a year to attend talks aimed at ending its nuclear ambitions, so the treaty was no longer binding for North Korean.

North Korea also test-fired seven missiles in July this year, including a failed test on a long-range Taepodong-2 thought capable of reaching the U.S., that is why North Korea’s nuclear weapons test creates “a grave threat” to the U.S. and its allies in trying to rein in the rogue state, in spite of opens a dangerous new chapter in nuclear proliferation. Consequently hard-liners in Washington have called for a pre-emptive attack on the North’s nuclear sites in the case of an imminent threat.

Even the motive to use pre-emptive attack has a good purpose, but my personal though will not agree with that action. Because, however, legitimating 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.

As we know that The U.S. and its partners in East Asia have had a broad array of financial sanctions in place for months that affected to the root of economical problems for North Korea. Indeed, analysts in Seoul, Beijing and Washington believe Pyongyang’s fury over the sanctions was one of the reasons behind its defiant nuclear test. North Korea’s claimed nuclear test is the culmination of nearly two decades of confrontation with the United States, a dangerous game of chicken in the heart of the world’s most dynamic economic region. Therefore, China and some other countries reluctant to back tough U.N. sanctions, pristine drafted by the US, which calls for sanctions on North Korea over its claimed nuclear test. They don’t want Pyongyang responds with “strong countermeasures” that will inflict the countries surroundings the North Korea if the sanctions are enforced.

Therefore, from the other end of the political spectrum, Taylor Marsh argues that the North Korean test is further proof of the failure of the Bush administration’s diplomacy, in first dumping Bill Clinton’s policy and then taunting Pyongyang by bracketing North Korea with Iran and Iraq in the “axis of evil”. The North Korean learned from Iraq that they need to be as nasty as they can be to avoid an invasion from.

From Iran to North Korea to Venezuela one is witnessing a strategic calculation by anti-western leaders to call the west’s bluff is it on the strength of Oil dollars or on the weakness of an overstretched U.S. Military with a diminished public appetite for pre-emptive Military action. We are absolutely agree that the nuclear proliferation shall be exterminated, nevertheless if the US, UK and other governments wish to stop other countries having nuclear weapons then I think they should lead by giving an amity example first.

[The writer is a Postgraduate Student of Master of Comparative Law at Faculty of Law, University of Delhi. He can be reached through his email: pm_faiz_kw@yahoo.com or log on into http://faizlawjournal.blogspot.com]

Present Legal Review of War in Iraq


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?

Introduction to the Terminology of Use Force and Self-Defence


STUDY ABOUT USE OF FORCE AND SELF-DEFENCE

The crisis in the Middle-East Asia between Israel and Lebanon has become a hot issue in every newspaper, magazine, journal or in society daily conversation. A lot of article addressing that Israel should be responsible for their action that caused huge damage in the cities of Lebanon. Even some practitioner had given opinion that Israel shall be dragged into International Court because they not obey the International Convention and International Law. But, in their opinions there still occurs of contrary and debatable opinion whether Israel shall be punishing for their armed attack in International Criminal Justice (ICJ) or International Criminal Court (ICC).

For this argumentation, we shall refer to United Nation Charter that lays down the regulation for the state to use a force [Art. 2(4)] to maintain international peace and security or using self-defence [Art. 51] to protect their people sovereignty.

After read these several articles above, I’m sure you will make a good hypothesis and conclusion for that debatable opinions. I hope it will make a clearly explanation whether Israel, if only they proved to used an illegal action, should be dragged into ICJ or ICC.

“QUATATION FROM CHARTER OF THE UNITED NATIONS”

CHAPTER I

PURPOSES AND PRINCIPLES

Article 1

The purposes of the United Nations are:

  1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threat 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;
  2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and so take other appropriate measures to strengthen universal peace;
  3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
  4. To be a center for harmonizing the actions of nations in the attainment of these common ends.

Article 2

The Organization and its Members, in pursuit of the Purpose stated in Article 1, shall act in accordance with the following Principles:

  1. The Organization is based on the principle of the sovereign equality of its Members.
    All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the pursuit with the present Charter.
  2. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
  3. All Members shall refrain in their international relations from the threat or use force against the territorial integrity or political independent of any state or any other manner consistent with the Purposes of the United Nations.
  4. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.
  5. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.
  6. Nothing contain in the present Charter shall authorized the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.

CHAPTER VII

ACTION WITH RESPECT TO THREATS
TO THE PEACE, BREACHES OF THE PEACE,
AND ACTS OF AGGRESSION

Article 51

Nothing in present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, 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.