The Hindu : A war to enforce disarmament?

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Thursday, Mar 20, 2003

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A war to enforce disarmament?

By V. S. Mani

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 weak.

THE U.S. President, George W. Bush, in a televised address to his nation on March 17 declared: "Saddam Hussein and his sons must leave Iraq within 48 hours. Their refusal to do so will result in military conflict commencing at a time of our choosing."

This ultimatum was the U.S. response to its failure to get a U.S.-U.K.-Spanish draft resolution through the U.N. Security Council. (It was withdrawn in the face of staunch opposition.) Tabled ten days in advance of an arbitrary deadline of March 17, the draft resolution wanted the Council to decide that "Iraq will have failed to take the final opportunity afforded by resolution 1441 (2002)." Such a decision was in fact anticipated by resolution 1441 which provided for a variety of reports from Iraq, the U.N. Inspectors, and the U.N. Secretary-General within various time-limits and anticipated decision(s) by the Council on "the need for compliance with all of the relevant Council resolutions in order to secure international peace and security".

According to the U.S. and the U.K., the previous Council resolutions on Iraq, including 661 and 678 (1990) and 687 (1991), already embodied adequate legal basis for any use of 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 invokes resolutions 678 and 687.

Resolution 661 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 assets of the legitimate Government of Kuwait." Resolution 678 authorised "Member-States cooperating with the Government of Kuwait" — a euphemism for the then U.S.-led 28-nation multinational force — "to use all necessary means to uphold and implement" Security Council resolutions and "to restore international peace and security in the area". Both resolutions 661 and 678 of 1990 were adopted specifically for the purpose of securing Iraq's withdrawal from Kuwait and upon withdrawal the use of force authorisation ceased to exist. The Council did not and, constitutionally could not, issue any such authorisation for all time to come. Also, there is a view that the initial authorisation itself was of doubtful legality. Resolution 687, adopted after the Iraqi withdrawal, imposed on Baghdad 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 the constitutional prerogative to enforce its previous resolutions remains exclusively with the Council.

The numerous statements emanating from the U.S. Government since late last year and in particular in the recent weeks as also the Bush ultimatum have thrown up a wide range of justifications for unilateral use of force. They 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 self-defence of Kuwait was specifically recognised by a Security Council resolution of 1990. But this right cannot continue to exist so long, merely on the basis of the alleged violations by Iraq of the obligations imposed on it by the Council through its various resolutions. Under Article 51 of the Charter, the right of collective self-defence had long ceased to have its legal basis, once the Iraqi invasion of Kuwait was vacated in March-April 1991 and once the Council steps in.

The right of individual self-defence of the U.S. 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 terrorist attacks on the U.S. This ground of self-defence against Iraq will only be tenable on proof — not just allegations — of definite connection between Iraq and Al-Qaeda 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 American argument is that Iraq has deadly weapons of mass destruction, delivery systems, and subsystems and these will be deployed against the U.S. and that it has a right to take pre-emptive action to prevent this eventuality. The issue of WMD has been central to the work of the U.N. inspectors led by Hans Blix and ElBaradei 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 scenario of a right of self-defence against 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 weak, and does violence to the U.N. Charter scheme of international community action through the instrumentality of the Security Council.

Enforcement of international sanctions for compliance with 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 the international community institutions, and if they are not well equipped for the task, the members of the international community should pool their resources to enable these institutions to act in each case. 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. 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.

The so-called right of humanitarian intervention against Iraq offers a range of justifications. But, any action against gross violations of human rights must come from competent international institutions 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.

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 ground of sovereignty, unless one recognises — and the U.S. does not — that national sovereignty is subject to law. And this is not the first time the U.S. has raised it on the international plane.

The second Bush war, like the first, will be based on neither the rule of law nor the rule of international legitimacy, but driven by pure greed and caprice over the natural resources of a developing country.

(The writer teaches international law at the JNU.)

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