13(3) Tilburg Foreign Law Review 228-256



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INTERNATIONAL LAW AFTER IRAQ: AN ETHICAL OR HISTORICAL APPROACH TO JUSTIFICATION OF SELF-DEFENCE

(2006) 13(3) Tilburg Foreign Law Review 228-256




I. Introduction

Arguably one of the seminal challenges of the twenty-first century will be the role of public international law, particularly in its manifestation in what may be termed the global security system. The importance of this has been shown by the controversial 2003 American-led invasion of Iraq. While the initial concerns about the legality of that invasion have largely receded, questions about the relationship of international law, state sovereignty, and the global security system, upon which the invasion focused attention, remain.

This paper will assess some of the possible implications for the global security system of the Iraq war, and possible post-war developments in the law of war. It will review the context of international law. It concludes with an evaluation of some of the lessons of the war for the international community. In essence it will ask what is the effect of the invasion on international law, and how might the global security system be revitalised.

II. How international law may be affected by the Iraq invasion
The justification for war can be either theoretical or historical.1 The theoretical aspect is concerned with ethically justifying war and forms of warfare. The historical aspect, or the ‘just war tradition’ deals with the historical body of rules or agreements applied (or at least existing) in various wars across the ages. Generally speaking international agreements are historical rules aimed at limiting certain kinds of warfare.

Historically the just war tradition developed through the interaction between two countries within the same cultural environment – primarily European states. It was therefore arguably less applicable where there was a great disparity between combatants, as in the nineteenth century colonial wars, or for instance.

Whilst parts of the Bible hint at ethical behaviour in war and concepts of just cause, the most systematic exposition is given by Saint Thomas Aquinas. In the Summa Theologicae Aquinas presents the general outline of what becomes the just war theory. He discusses not only the justification of war, but also the kinds of activity that are permissible in war. Aquinas’s thoughts become the model for later Scholastics and Jurists to expand.2 In the twentieth century it underwent a revival mainly in response to the invention of nuclear weaponry and other factors including American involvement in the Vietnam war.3 It has now been revisited due to the Iraq war, but so far without a clear outcome. This raises two parallel questions: the first is what is the basis of the law? The second is what is the proper means of regulating war?

The strategic doctrine of the Bush administration, laid out in The National Security Strategy of the United States of America,4 highlights a significant shift from beliefs that dominated Cold War strategic thought. The new doctrine goes beyond the Cold War strategy of deterrence,5 to one which backs pre-emptive attacks against terrorists, and states which harbour them6 and states with weapons of mass destruction.7 This doctrine may have profound implications for the world security environment, and for international law, for it is contrary to the previously developed norms of international law, which stressed collective security and the maintenance of world peace through the United Nations system. The new doctrine was applied in full in March 2003, with the US-led attacks on Iraq.8

The war on Iraq may be central to the development of the ‘new world order’ in the first half of the 21st century. For, despite its justification by the US and its allies as a police action to prevent the spread of weapons of mass destruction – or any of the other reasons given for attacking Iraq – the US acted largely outside the pre-existing international legal order.9 This unilateralist attitude was illustrated by the US Defence Secretary Donald Rumsfeld, who wrote that defending the US required both prevention and, sometimes, pre-emptive action.10 International law prescribes limited circumstances in which offensive military action may occur, and it is doubtful that the Iraqi situation qualified.11 However, it may be that this US approach to the law of war reflects a theoretical, rather than historical, justification (the right – indeed duty – of states to defend their people). Given the changing strategic situation it may be that this is no less valid an approach and indeed it may be more appropriate in an era in which the primary opponents are ideologically-driven sub-state groups, rather than nation-states.

Ironically – but perhaps unsurprisingly – in the aftermath of the war, faced with scepticism at home and abroad over unproven claims of weapons of mass destruction, and an increasingly costly occupation, the US was compelled to back down from its previously relatively pure principle, in favour of limited concession to multilateralism. Coincidentally this may offer an opportunity for the world security system to develop a theoretical response to a problem which has been dominated by an historical approach for over a century.



III. The Context of International Law
It may be that the American position on Iraq in 2003 reflects international law, either as it stands now, or as it may be in the future. For this reason it is useful to briefly look at the context of international law. Public international law regulates relations between nations. That part which relates to military action is generally known as the Law of Armed Conflict, or anciently as the Laws of War. War is both a state of “armed, physical contest between nations”, and “a legal condition of armed hostility between states”.12 In common with those aspects of international law which do not relate directly to the Law of Armed Conflict, the sources of international law include written and unwritten rules, treaties, agreements, and customary law. These principally relate to states, for states were for long the dominant – if not sole – participants in international diplomacy and law.

Traditionally the laws of war were concerned with the regulation of warfare,13 usually, though not exclusively, state warfare.14 Additionally, since the nineteenth century there has been significant growth in the laws of humanity, or human rights.15 It has been said that these two strands have joined.16 There has been much concentration on humanitarian law, and especially the punishment of war criminals.17 But the basic question of when it is lawful to start an offensive war has received less attention, if it has not been ignored altogether.18

It would be simplistic to assume that individual states alone determined what international law comprised, or that they were always equally significant. A look at history, however, tells us that conceptions of world order have by no means always been shaped by the model of sovereign co-equal actors with a territorial basis.

While it is possible for organisations and individuals to be subjects of international law, States remain the dominant agents in world politics and the dominant actors in international law. This dominance has led some theorists to distinguish ‘subjects’ of the law from ‘objects’ of the law, suggesting that although entities other than States may have rights and duties in international law, these rights are conferred upon them by States and, presumably, may be taken away by States.19 It is possibly more correct now to regard international law as a body of rules that binds States and other agents in world politics in their relations with one another, and that is considered to have the status of law.20 This is becoming increasingly irrelevant.

The 20th century, and particularly the second half of that century, saw the growth of international organisations and other bodies now accorded recognition as subjects in international law. With the growth in both the extent and the reach of international agreements, treaties, conventions and codes, the extent to which individual sovereign States retain the final control over their national policies may have diminished, though even in the heyday of State sovereignty, the late 19th century, the extent to which any State was truly independent depended much on non-legal factors, such as relative economic strength. This tendency is becoming more noticeable in the modern commercial environment, and especially in respect of the internet. The principal of these international bodies was the United Nations, which, in succession to the League of Nations, took a leading role in the post-World War II global security system. It may be true that the Iraq war involved one state (or coalition of states) against another, but it was very much linked with the broader US war against terrorism – the historical justification, based as it is upon state practice as codified in conventions, was largely inapplicable.

IV. US policy towards Iraq and the international legal order
US policy towards Iraq was driven largely by the American perception of global security.21 In accordance with the newly developing US world view, it was incumbent upon the US to take action, including military action where necessary, against any and every potential threat.22 In classic laws of war terminology this might be thought of as theoretical rather than historical. The question of whether such action was legally justified in international law was one which was either disregarded, or left to others – particularly the UK – to annunciate.23 That is not to say that international law per se was disregarded, or international organisations such as the UN ignored.24 But it did mean that the settled norms of international law, to which many smaller countries attached primacy, was not determinative in US strategic thinking.25 It was simply that a historic approach, based on technical rules and precedents, was deemed inapplicable to a new, highly fluid, environment.

Whatever the political, military or diplomatic reasons for taking aggressive military action against Iraq, there were (broadly speaking) four possible legal justifications. These were humanitarian grounds (as used in 1999 to authorise the Balkan operations26);27 Iraq’s support for terrorism in the past and its (alleged) possession of weapons of mass destruction;28 a related argument based on anticipatory self-defence (‘pre-emption’);29 and alleged material breach of UN Security Council resolution 1441, reviving resolution 678.30 The US seems to have relied upon all four – and particularly the third.31 The UK relied upon the last,32 as being arguably the strongest. The specific details of these arguments – except for the last two – will not be examined in this paper. But the context in which they were placed – the world security system – will be.



V. Ius ad bellum and Iraq
Not every exercise of military force is lawful. Rules have developed over time to control and regulate war, and the tendency over the past few centuries has been to limit the freedom of sovereign states to levy war.33 The UN Charter in particular, designed to promote peace, enshrined a growing tendency to prohibit all wars not waged in self-defence,34 though it does allow collective self-defence,35 and the restoration of international peace.36 This left little room for the ‘just war’,37 a concept which has nevertheless increasingly once again reared its head in the law on the use of force – the ius ad bellum.38 Whether seen as historically or theoretically-based, this doctrine has been central to the laws of war, in particular as applied by sovereign states.

The US-led attack on Iraq could be justified within the framework of modern international law on the use of force. It might have been designed to force compliance with UN resolutions, but it was not expressly authorised by the UN.39 Nor did it resemble traditional peacekeeping missions, or defensive military actions, such as the British action for the recovery of the Falkland Islands in 1982.40 That is not to say, however, that the US necessarily acted unlawfully in attacking Iraq. But the legal basis for its action was at best uncertain.41 This raises serious questions for the world security system. But it has not spelt the end of the existing system, despite some initial pessimistic assessments. If it cannot fit comfortably into an historical framework, merely describing it as illegal is unhelpful and possibly simplistic. We must turn to the second possible basis for legality of ius ad bellum. This could be for individual states to define, but we have an existing system which could be utilised for the construction of broader principles of international public law.



VI. Role of the UN
As the global security system is currently understood, the UN Security Council alone has the power to make a binding determination in international law that a situation constitutes a threat to international peace and security:
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.42
Article 41 of the UN Charter provides for a range of non-military measures which the Security Council may authorise to deal with such a situation and, if they prove ineffective, article 42 permits more direct action:
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the UN.
This is a predominantly historical basis for the laws of law and one based on detailed precedents. However, while the UN itself can take or authorise military action, the Charter does not necessarily exclude the possibility of unilateral action by individual states in certain circumstances. This is recognised by article 51:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the UN, 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.
This article clearly limits the scope of self-defence to interim measures – any solution adopted is always subject to subsequent Security Council action. However, it does not cover situations where the Security Council has failed, for some reason, to reach agreement on taking action. Aggressive war is no longer a legitimate instrument of national policy, but the use of force is not necessarily limited or reserved to the UN alone. Thus, although the general rules for the conduct of international relations may be categorised as historical, there may be additional theoretical justifications available – particularly those based on ethical considerations.

Many international lawyers argued that, in the context of the UN Charter, the attack on Iraq was unlawful at international law given the circumstances in which it occurred.43 It was argued that the action was neither based on a Security Council decision under Chapter VII (which will be considered below), nor taken in individual or collective self-defence under article 51, the only two justifications for the use of force that are currently clearly available under international law.44

Whether this view of international law is correct depends on whether the law of war has now accommodated, or is in the process of accommodating, wars conducted for humanitarian purposes or to reduce the risk of more widespread war.45 The latter ground is particularly important as a possible justification for action, but runs counter to the general trend of legal developments over the past few centuries. In particular, it appears to be inconsistent with the UN Charter, though the principle protagonists in the 2003 Iraqi war relied upon Security Council resolutions to justify the use of force.46

However, it is also true that the post-World War II security system was in need of radical reform, with the end of the Cold War, and that in this new strategic environment theoretical justifications for war are more important that historical. The former may be immutable, the latter founded on strategic situations which may no longer be relevant. The UN and its public international law bodies could work on the theoretical basis of the law of war – because the focus is no longer on states, less relevant for states alone to develop principles of law. We could see signs of this developing in the ongoing diplomacy surrounding the US involvement in Iraq.



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