“I
think in this case international law stood in the way of Iraq
doing the right thing.”
-
Richard Perle, The Guardian
Was
the Iraq War Legal?
“The
architects of this wickedness will find no safe harbor in this
world. We will chase our enemies to the furthest corners of this
earth. It must be war without quarter, pursuit without rest,
victory without qualification.” Tom Daley, the majority whip
of the US House of Representatives, made this statement soon
after September 11, 2001, perhaps America’s darkest day in
history. September 11, on which almost 3,000 people were killed
in terrorist attacks on New York and Washington, revealed
America’s vulnerability to terrorism. It also led to a
dramatic change in US foreign policy - the doctrine of the
preemptive strike.
Concerned
about the dangers to America posed by rogue states with weapons
of mass destruction and terrorists, the Bush administration
decided that it would act against emerging threats first. The
National Security Strategy of the United States published in
September 2002 stated that “the use of WMD can be easily
concealed, delivered covertly and used without warning.”
President Bush presented his case strongly in his State of the
Union address in 2002, arguing that the risk of waiting to act
“could be catastrophic.” The possibilities are truly
horrific. What if a nuclear bomb was dropped on New York or Los
Angeles, for example, or if a terrorist spread smallpox
throughout America? This kind of attack could easily happen
without warning. The new doctrine of preemptive strike is
intended to prevent this kind of dreadful scenario.
Many
critics, however, regard this new policy as dangerously
extending the right of self-defense recognized in international
law, while others think that the doctrine suits the changing
times. Australia’s Prime Minister, Mr. Howard, for example,
has stated that the Charter of the United Nations should be
amended to take account of these new threats.
An
example of a preemptive strike which was, indeed, heavily
criticized by the US and other members of the UN Security
Council was Israeli’s bombing of Iraq’s Osirak nuclear
reactor in 1981. The Israelis argued that the nuclear reactor,
which was about to be turned on, represented an emerging threat
to Israel because Iraq planned to use it to make nuclear weapons
that could destroy Israel. According to the Israeli Government,
the reactor was capable of producing bombs as large as those
dropped on Hiroshima; they believed that they were, therefore,
entitled to strike first. However, there was certainly no clear
threat to Israel, which later admitted that it was capable of
developing its own nuclear weapons.
Critics
also view America’s preemptive strike on Iraq as a bad
precedent to other countries, especially those with nuclear
weapons. India could launch a strike on Pakistan, for example,
arguing that it sees Pakistan as a threat to its national
security. As both countries have nuclear weapons, the
devastation of an India-Pakistan war could be catastrophic.
China regards Taiwan as a threat and could use the precedent of
the Iraq war to justify attacking Taiwan.
The
Principle of Self-Defense in International Law
The
Bush administration regards the new policy of preemptive strike
as a justifiable extension of the principle of self-defense.
This principle of international law dates back to the case of
the Caroline. In 1837, there was a bitter dispute between
Canada and Britain. Americans helped Canadian rebels by sending
an American ship, the Caroline, loaded with supplies and
arms, across the border to Canada. When the British discovered
this, they were furious. They attacked the crew and passengers,
burned the ship, and set it adrift. Two people were killed in
the attack.
The
British regarded their destruction of the Caroline as
self-defense. However, American Secretary of State Daniel
Webster famously stated that the British had to show that the
threat was “instant, overwhelming and left no choice of
means” in order to argue that they were entitled to attack the
Caroline. This was the precedent for future cases.
The
United Nations was founded after two horrific world wars to
“save succeeding generations from the scourge of war which
twice in our lifetime has brought untold sorrow to mankind.”
However, Article 51 of the UN Charter allows the exception of
individual or collective self-defense. One famous example of
this principle is America’s entry into the Second World War
after the Japanese unexpectedly bombed Pearl Harbor, an
unprovoked attack. If troops are amassing on the border of a
sovereign country, that also constitutes an obvious threat.
In
the case of Iraq, the United States’ justification for war was
not nearly as clear-cut. Kofi Annan, the UN Secretary General,
stated that “if the US and others were to go outside the
Council and take military action it would not be in accordance
with the Charter.” In his view, a preemptive strike on Iraq
was not self-defense, even though the United States argued that
Saddam Hussein had weapons of mass destruction that posed a
dangerous threat to America and that he also had links with Al-Qaeda.
Legal
Argument of the United States
Although
the United States failed to gain Security Council approval for
its attack on Iraq, it argued that Resolution 1441 supported its
case for the invasion. This UN Security Council Resolution
threatened Iraq with serious consequences if it did not take up
the last chance to get rid of its weapons of mass destruction.
However, as France, Russia, and China only approved this
resolution on explicit written condition that it would not be
used by individual states to justify military action, this was a
difficult position to sustain.
The
United States also argued that, as Iraq did not obey the terms
of the cease-fire after the Iraq-Kuwait war, Resolution 678 was
revived. This authorized the use of force to “expel Iraqi
troops from Kuwait and restore peace and security in the
area.” However, many critics regarded this as a specific
resolution referring to the immediate aftermath of the Iraq
invasion.
For
example, Lord Alexander of Weedon QC, a distinguished English
jurist, was quoted in The Guardian recently describing
the reliance by the British government on a UN resolution passed
in 1990 as the basis for the invasion of 2003 as “risible.”
In his opinion, the United States and its allies only had the
right to use force against Iraq under a current resolution.
Astonishingly,
Pentagon hawk Richard Perle admitted in The Guardian
that, in his view, the invasion of Iraq was illegal. Perle told
the London audience at an event organized by the Institute of
Contemporary Arts at the Old Vic theatre that “I think in this
case international law stood in the way of Iraq doing the right
thing.”
He
stated that “international law… would have required us to
leave Saddam Hussein alone” and this would have been
“morally unacceptable.”
Humanitarian
Justification for Regime Change
As
Perle confirmed, one justification that the United States used
for the invasion of Iraq was humanitarian intervention. Saddam
Hussein’s tyrannical regime committed torture, murder, and
ignominiously massacred the Kurds. Why then, shouldn’t the
coalition have ended this brutal regime by military force, even
without UN approval?
The
United States and Europe also intervened in Kosovo without UN
approval in order to stop the “ethnic cleansing” of the
Albanians by the Serbs. Kosovo was also governed by a murderous
regime that the United States wanted to change. The NATO air
strikes had far wider approval than the Bush administration’s
action in Iraq. Most experts in international law, however,
agree that the intervention in Kosovo was illegal.
Article
2(4) of the UN Charter prohibits the threat or use of force
against the “political independence of any state, or in any
other manner inconsistent with the Purposes of the United
Nations.” So it would seem that, regardless of the motive, the
action was against the black letter of the law. Some critics
argue that the Charter should be changed to allow for
humanitarian intervention. According to Mr. Kidd, former
lecturer in international law at The University of Queensland in
Australia, “There are two views on this. Some would regard
humanitarian intervention (the preemptive doctrine) as being
intrinsically dangerous - the thin edge of the wedge. Others
would defend it as spreading human rights protection and
democracy because of its effectiveness in toppling tyrannical
regimes.”
The
Future of the United Nations
Ironically,
the wrangling over whether the United States and its allies
would gain UN approval for the invasion may actually strengthen
the United Nations. It is likely, for example, that the United
Nations will play a major role in the reconstruction of Iraq
even though most members of the Security Council - such as
France, Russia, and Germany - strongly disapproved of the war.
According
to Professor Sean Murphy, an expert in international law at
Georgetown University in Washington, DC:
The
intervention in Iraq may help strengthen the United Nations for
two reasons. First, even in the course of deciding whether to
intervene, it was clear that the legal and moral authority of
the United Nations was important not just to the global
community, but to the U.S. Government as well, since the United
States went to considerable efforts to gain U.N. approval. The
United States proceeded to intervene without that approval, but
it paid a price for doing so. Second, as the aftermath of the
intervention plays out, it is readily apparent how difficult it
is to succeed with an intervention without the global support
that a U.N.-authorized action provides. One can only conclude
that the next time a state seeks to intervene in another state,
it will worry about the costs of doing so without U.N.
authority.
Lisa
Sanderson is an Australian freelance writer who holds a
BA in English Literature and a BA in Law. Her articles have been
published in many magazines and websites, including Alive
Magazine, Internet.au, Writing Australia, Crescent Blues and
Suite101. You can reach her at starshine@ozemail.com.au
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