Neo-Conned! Again
Page 51
Self-Defense Under the UN Charter
We turn first to the underlying rationale for the invasion of Iraq, self-defense. Article 51 of the UN Charter provides in part: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense 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.” The use of “inherent” acknowledges that the Charter does not create a right to self-defense; rather, the right preexists the Charter and is fundamental to the system of states. But the Charter also strictly limits self-defense, in that the triggering condition for its exercise is the occurrence of an armed attack.
This limitation prompted an ongoing debate whether the right to use force in anticipation of an attack, which existed prior to the Charter, remains in effect. Some scholars believe Article 51 should be read literally and therefore the right of anticipatory self-defense has been terminated. Others believe that the reference to “inherent right” expresses an intent not to limit the right of self-defense under customary international law.1States generally have been reluctant to acknowledge a right of anticipatory self-defense under the Charter, preferring if necessary to interpret “armed attack” broadly to include actions incident to launching an attack.2
The right to anticipatory self-defense under customary law has never been unlimited. One generally recognized formulation dating from the mid-nineteenth century is that set forth by Daniel Webster, that the necessity for action must be “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”3 Since then, and especially since World War II, capabilities to launch devastating attacks with little advance warning have improved dramatically. Nonetheless, scholars have continued to affirm Webster's restraints on legitimate self-defense, recognizing their value in inhibiting resort to war. A recent edition of a leading treatise states that self-defense may justify use of force under the following conditions: an attack is immediately threatened; there is an urgent necessity for defensive action; there is no practicable alternative, particularly when another state or authority that legally could stop or prevent the infringement does not or cannot do so; and the use of force is limited to what is needed to prevent the infringement.4
Assuming its continued relevance, application of the doctrine of anticipatory self-defense in the months preceding the invasion of Iraq should have been straightforward. The United States accused Iraq of retaining stocks of chemical and biological weapons and materials and of reconstituting the chemical, biological, and nuclear weapons and missile programs that were terminated or at least severely disrupted by the post-Gulf War inspections. However, no definitive evidence was presented to establish Iraq's possession of such weapons or missiles, or their current use to threaten the United States or other states. In his February 15, 2003, briefing of the Security Council, Secretary of State Colin Powell focused on alleged program activities, and the “evidence” he presented seemed thin at the time, a perception borne out by its later discrediting. The UN Monitoring, Verification and Inspection Commission (UNMOVIC) made it very clear that only uncertainty existed as to such matters as whether Iraq had fully destroyed stocks of chemical and biological weapons and materi-als.1 Given UNMOVIC's stance, especially in view of the fact that states were requested to provide relevant information to UNMOVIC, any plea that U.S. and other intelligence agencies reasonably believed Iraq retained such weapons is unpersuasive. In any event their possession, taken alone, would not suffice to demonstrate a threat of imminent attack. Similarly, the International Atomic Energy Agency (IAEA) publicly and emphatically confirmed what was common knowledge among specialists, namely that the Iraqi nuclear weapons program had been successfully dismantled under IAEA monitoring in the early 1990s.2
Seen from a larger perspective, the months of ongoing, public deliberations on Iraq strongly suggested that there was no immediate threat; only part of that time was required for the build-up of U.S. military forces. Further, absent an imminent attack, nonviolent options such as negotiation and verification of claimed compliance with disarmament and non-proliferation norms should be pursued in all cases of suspected acquisition of banned weapons. This follows from the doctrine of anticipatory self-defense, which in Webster's formulation allows force only if there is “no choice of means,” and, more broadly, from the UN Charter, which requires the peaceful resolution of disputes when possible. Finally, since the 1990 Iraqi invasion of Kuwait, the Security Council had asserted its authority with respect to Iraq, most centrally by imposing disarmament obligations. Under Article 51, once “the Security Council has taken measures necessary to maintain international peace and security” the right of self-defense is terminated.
In short, it was manifest prior to the invasion of Iraq that conditions, even liberally interpreted, for exercise of any right to anticipatory self-defense were far from being met. The history with respect to Iraq should strengthen resistance to the general U.S. doctrine claiming the right to act militarily against states based on potential threats arising from states' possession or development of non-conventional weapons together with links to terrorism. Although the doctrine has been in gestation for over a decade, it was given great impetus by the September 11 terrorist attacks. This is true even though expanding the scope of self-defense was not necessary to legitimize the military operations undertaken in Afghanistan in response to the attacks; these are generally acknowledged to fall under the existing right of self-defense. The Bush administration, however, contends that September 11 demonstrates that threats facing the United States, especially from non-conventional weapons, have reached a magnitude that demands a far-reaching revision of jus ad bellum.1
The articulation of what amounts to a doctrine of preventive war has met with a great deal of resistance. A rule permitting a military response to an uncertain threat absent immediate danger or exhaustion of peaceful alternatives is a standard ripe for abuse that would destabilize the UN Charter system of restraints on use of force that protects all states. Preventive war undertaken unilaterally by states also appears contrary to international law predating the Charter. The International Military Tribunal sitting at Nuremberg rejected defendants' arguments that Germany was entitled to attack Norway to forestall an Allied invasion, finding that no such invasion was imminent.2 Defenders of the new doctrine point to the 1981 Israeli air strike against the Osirak nuclear reactor in Iraq as an example of a beneficial preventive military action. In terms of the legality of the action, the Security Council condemned the strike as a violation of the UN Charter and of the “norms of international conduct.”3 From a practical standpoint, whether the strike aided in protecting Israel against an Iraqi nuclear weapons capability remains in dispute; it may have strengthened Iraqi resolve to pursue a concealed program. Whatever the assessment of the balance of factors affecting medium-term Israeli security, it is also true that one case does not justify a rule; the consequences for long-term regional and global security must be weighed in considering general application of a doctrine of preventive war.4
Security Council Authorization of Force
The only generally recognized legitimate use of force other than self-defense is that directed or authorized by the Security Council to restore or maintain international peace and security. Chapter VII of the UN Charter establishes that force may be used for this purpose when the Security Council has determined the existence of a threat to peace, a breach of peace, or an act of aggression, and efforts to address the matter using measures short of force have failed or would be futile. In the post-cold war era, Security Council resolutions regarding Somalia, Haiti, Rwanda, the Darfur region of Sudan, and other states have established that “international peace and security” encompasses situations of humanitarian emergency or massive human rights violations which may be largely internal to a state but nonetheless are deemed to have adverse consequences for regional or global security. The Charter originally envisaged
that states would make their troops and facilities available for Security Council use pursuant to Article 43, essentially creating a standing force, but that arrangement never materialized. Instead, the Security Council delegates its authority to willing states on an ad hoc basis.
A central issue is whether a state or group of states may legally conduct military operations not expressly authorized by the Security Council. The issue was highlighted sharply by the 1999 U.S./NATO bombing of Yugoslavia and is at the forefront of the debate over the invasion of Iraq. In the Yugoslavia case, the United States argued, albeit not very strongly, that the use of force was implied by resolutions condemning Yugoslavia's conduct in Kosovo. Given that Russia and/or China was likely to veto an explicit authorization of use of force, this argument carries little weight. Despite the lack of Security Council authorization, the action received considerable international support as a humanitarian intervention, evidenced in part by the 12–3 vote in the Security Council against a resolution condemning the bombing then under way.
Indeed, some generally contend that non-Security Council authorized military action to prevent genocide, crimes against humanity, and other gross human rights violations is lawful under human rights clauses of the UN Charter, the Genocide Convention, and other international law. One influential report, The Responsibility to Protect, has called intervention for human protection purposes “an emerging norm” growing out of international law and state practice.1 The report holds that Security Council authorization for interventions must be sought, but if the Council fails to act in response to threats of genocide, ethnic cleansing, and comparable large-scale human rights abuses, other entities may legitimately authorize intervention, including the UN General Assembly and regional organizations. This view has been strengthened by widespread criticism of the abject failure of the Security Council and major states to respond effectively to ethnically-motivated killings on a vast scale in Rwanda and Bosnia. Many states, especially those in the developing world that fear major power interference in their affairs, oppose arguments tending to legitimize intervention. It is fair to say, though, that should the Security Council continue to prove unable to act to prevent massive atrocities, pressure will build for recognition of the lawfulness of humanitarian intervention by regional organizations and coalitions of states.
In the case of Iraq, humanitarian intervention was not a principal rationale for the invasion. While in the past the Ba'athist regime at a minimum had committed serious violations of human rights and humanitarian law,1there was no contention that large-scale atrocities were presently occurring or impending. The question posed, rather, is whether there was implied Security Council authorization for military action to compel Iraqi compliance with disarmament obligations. Shortly before the war was launched, together with Britain the United States sought a Security Council resolution that would have declared that Iraq had missed its “final opportunity” to comply with disarmament requirements laid down by the Security Council in resolution 1441. Given that resolution 1441 recalled that the Council had “repeatedly warned Iraq that it will face serious consequences as a result of its continued violations,” a resolution making that declaration would have been widely understood to authorize military action. But despite determined lobbying, the United States and Britain were unable to muster the required majority of nine members of the 15-member Council. Further, one of the five permanent members, France, signaled that it was prepared to veto the proposed resolution.
Consequently, the United States and Britain had to fall back on the argument that military action was authorized by resolution 1441 and prior resolutions, if in their view Iraq failed to fulfill disarmament requirements. That indeed had been the U.S. position all along. The Bush administration contended that because resolution 1441 “decides that Iraq has been and remains in material breach of all relevant resolutions,” the United States already had the authority to use force to ensure compliance with the new inspection regime should the Security Council choose not to use force. The logic behind the assertion was that (1) the Security Council previously authorized force in response to Iraq's invasion of Kuwait; (2) authorization was suspended only pursuant to a cease-fire codified by Resolution 687; (3) Iraq is in breach of the cease-fire terms; and (4) the authorization therefore remains in effect.
This argument, together with the underlying rationale of the need for a preemptive strike against a gathering threat, received support from some international lawyers, especially in the United States.1 But the vast majority of international lawyers, certainly outside the United States, were far from persuaded, with good reason, as explained below.2 The prevailing rejection of U.S. arguments is well illustrated by the extraordinary readiness of UN Secretary-General Kofi Annan to continue to publicly state that the war was “not in conformity with the UN Charter” and, when pressed, was “illegal.”3
At the most basic level, it is for the Security Council, not individual states, to decide whether and how to enforce its resolutions.1 Presumably the United States would not accept that other members of the Council could decide, over U.S. objections, to take military action to compel compliance with Council resolutions. Resolution 1441 refers to “serious consequences” of Iraqi non-compliance, but also provides that the Council “upon receipt of a report” of Iraqi non-compliance will convene “to consider the situation.” While the United States purported to make such a report in Powell's presentation, none was received from UNMOVIC or the IAEA, and as noted above, the Council publicly and unambiguously declined to approve the U.S./British proposed resolution that would have been understood to authorize force. Further, when resolution 1441 was adopted, Russia, France, China, Mexico, Ireland, Colombia and other states noted that it provided for no “automaticity” or “hidden triggers” regarding use of force without further Council authorization. Finally, the last paragraph of the resolution stated that the Council “[d]ecides to remain seized of the matter.”
The U.S. and British invocation of prior resolutions is also unavailing. Resolution 687 required that Iraq end its long-range missile and its chemical, biological, and nuclear weapons programs and account for having done so, but the Security Council reserved for itself the power to make determinations regarding enforcement of the cease-fire terms. Paragraph 34 of the resolution states that the Council “[d]ecides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area.” Since then, although the Security Council repeatedly has found Iraq to be in a state of non-compliance, it has not clearly and specifically authorized the use of force to achieve compliance. When the Security Council has authorized force in other situations, it has employed language universally understood to authorize force, e.g., “all necessary means.” This applied to use of force in Korea in 1950; ejection of Iraq from Kuwait in 1990; and in Somalia, Haiti, Rwanda, and Bosnia in the 1990s. Further, the Security Council has expressly authorized force only in response to actual invasion, large-scale violence, or humanitarian emergency, not to potential threats of the kind the United States claimed were posed by Iraq. The U.S. claim that material breach by Iraq provides a basis for termination of the ceasefire ignores the fact that the Gulf War was an action authorized by the Security Council, not a state-versus-state conflict. Accordingly, only the Security Council could determine whether to end the cease-fire. As Jules Lobel and Michael Ratner wrote in a seminal and prescient 1999 article, for the Security Council to maintain international peace and security credibly, it must “retain strict control over the initiation, duration and objectives of the use of force.”1
Claims of implied authorization of force should be examined critically in light of the fundamental principles of the UN Charter.2 The Charter gives priority to the peaceful settlement of disputes and the non-use of force. The Article 2(4) prohibition on the threat or use of force has been described by the International Court of Justice as a peremptory norm of international law from w
hich states cannot derogate.3 Strained interpretations of Security Council resolutions, especially when opposed, as in the case of Iraq, by a majority of other Council members, cannot overcome those fundamental principles. Rather, given the values embedded in the Charter, the burden is on those who claim use of force has been autho-rized.4 The United States failed to meet that burden.
Conclusion
The question naturally arises, what difference does it make that international lawyers, or even the UN secretary-general, declare the illegality of an action by the world's most powerful state? One answer is that by undermining the legitimacy of the U.S. occupation, it may influence political developments in Iraq and the region. But it is also the case that there are no readily identifiable consequences, legal or other, for the states and their leaders responsible for launching the invasion. In this respect, the main aspiration is to affect future decisions about use of force.
It is certainly true that weakness of enforcement with respect to issues of war and peace is endemic to the current international order. Most importantly, the body charged with the responsibility to govern use of force, the Security Council, remains subject to the veto power of the United States and other permanent members, and those states or their allies have often been principal actors in uses of force. The International Court of Justice is a suitable venue for redress against transgressing states only to the extent that involved states have accepted or would accept its jurisdiction. The United States withdrew from its jurisdiction in the wake of the 1980s case brought by Nicaragua challenging U.S. support for Nicaraguan counterrevolutionary forces. The International Criminal Court will not have jurisdiction over individuals accused of the crime of aggression unless and until agreement is reached on definition of the crime and the treaty creating the court is amended, a process that will take at least a decade and probably longer. Moreover, the United States refuses to join the treaty, limiting, though not excluding, circumstances under which the court can have jurisdiction over U.S. nationals.