America's Right to the World
By Reinhard Merkel
[This article originally published in: DIE ZEIT 41/2002 is translated from the German on the World Wide Web, http://www.zeit.de/2002/41/Kultur/print_200241_voelkerrecht.html. Reinhard Merkel is a professor of criminal law and legal philosophy at the University of Hamburg.]
Will America's planned military strike against Iraq be a "preventive war"? Does international law prohibit "preventive war"? Is such a war prohibited even if the UN Security Council authorizes such a strike? Cannot the supreme power of the world simply ignore the normative order in a question of its own vital interests? Why shouldn't the US whose military strength is not matched by the rest of the world force its new signature on future international law and a Pax Americana after September 11, 2001 if no one except for America can create worldwide peace?
Is only self-defense at issue, something that every legal order allows? Certainly this is a kind of anticipatory defense. Must an act of self-defense wait until an aggressor strikes? Has not America long been in a defensive war against a worldwide terror whose hideous present is absolutely certain alone with Saddam Hussein's trace?
There are good reasons for each of these questions. However none of the answers justifies what America is now planning. This is the insight of all present and future international law and of law itself..
"Preventive wars" are illegal. This undeniable conclusion of positive international law results from Article 2 paragraph 4 and Article 51 of the UN Charter: from the prohibition of violence and its explicitly recognized exception, the "natural right" of a state that becomes the target of an "armed attack". Only a "present" attack can legitimate force in defense. The fundamental principle of the right of self-defense is ending an illegal attack. Whoever forcibly "wards off" what has not occurred does not defend anything. This makes the actor normatively into the aggressor.
The Right to Self-defense
No one is subject to a legal duty to wait for the "first strike" of an adversary. Setting the right of self-defense under conditions infringing or excluding its effectiveness would be inept. As a result, an attack is only "present" when it is so imminent that any further delay endangers the possibility of a defense. This is also a foundation of law. Submitting to the injustice of an acute attack or the risk of an aggressor "about to attack" is not commanded. Specialists in international law committed to positivism have little difficulty in demonstrating this principle in current law.
The limits of anticipatory self-defense are also absolutely certain. Positive international law emphasizes these limits. The historical origin of these limits was in 1837. The US steamer Caroline was seized by English troops at the border to British-colonial Canada and chased into the Niagra Falls. The US government opposed the criteria of a necessary limitation to England's justification. The US defined "imminence" so that a threatened attack became a present attack. A century later, the US cited the Nurnberg military tribunal in rejecting the argument of the accused that the German occupation of Denmark and Norway was an act of "anticipatory self-defense" (namely against England's plan to do the same). The "Caroline criteria" appear even today as a recognized rule of international law in the decisions of the Hague International Tribunal.
This may be known in the White House. On page 15 of the new "security strategy" of the US, the "imminent threat" of an armed attack is named as a necessary condition of a legitimate military self-defense. However an imminent Iraqi aggression is not claimed in Washington. Tony Blair's assertion that Bagdad can mobilize its dangerous arsenals in 45 minutes also does not prove imminence. The sentence in the strategy paper "We must adjust the idea of `imminent threat' to the capacities and goals of our present adversary" is abysmal for the future of international law.
Who is "we"? What does adjustment mean? How far can a principle of law be changed per adjustment until the principle loses its legal substance and becomes a principle of naked power? The community of states could obviously answer this question. However that the US judges this differently, regards itself as competent and carries out that "adjustment" is also obvious. Since the collapse of the eastern block described by Wilhelm Greve, specialist in international law, as the beginning of the "American epoch of international law", the US increasingly claims exclusive competence in interpreting the norms of international law. This appeared clearly in its Iraq policy since the 1990 Operation Desert Storm. The establishment of no-fly zones in the north and south of the country were supported on its own exclusive reading of certain resolutions of the Security Council.
The central argument was as follows: Arms control resolution 667 of April 1991 suspended and did not annul the previous authorization of military action. Since Iraq did not satisfy different conditions of this resolution and its legal regime continually violated its disarmament, the original authorization of force was automatically revived ("implied authorization"). England joined this interpretation. This authorization of force is now resuscitated for a new Iraq war as a kind of self-evident argument alongside self-defense.
This is undoubtedly wrong according to all rules of legal interpretation on resolutions 686 and 687 from the spring 1991. The authorization of military force was extinguished with the Iraqi withdrawal from Kuwait. Later resolutions hardly supported the American version of an implicit authorization of force. This raises a cold light on the military strikes against Iraq since 1991. Most of them were illegal.
This presupposes accepting these rules of legal interpretation. America rejects these rules with growing impatience. Why shouldn't it reject these rules? Without the US, the whole Gulf war together with its previous authorization by the Security Council would have been impossible. Repairing the most flagrant breaches of international law since the UN's founding is imperative. Why should a state that eclipses all others in power and political authority not claim a corresponding priority competence in establishing new legal rules?
This was the perspective in the White House. The community of states may be forced to "adjust" or expand the term self-defense far beyond an "imminent threat". A new norm of international law is not produced when the adjustment is accepted. Rather the axe is laid to the roots of the one legal order. Preventive war is not a legally possible form of self-defense. Preventive war lies outside this term and its legitimation and annuls the prohibition of force. The prohibition of force is not a discretionary norm of international law but is a condition of its possibility as law. Legal and forcible conflict resolution logically exclude one another. All administration of justice begins with the prohibition of force and ends with its abolition.
This is what America expects of the community of states - with the best will but, I believe, tragically blind to the future of the world and its own future. The criminal who breaks a norm cannot dissolve its authority. This is true for a state waging war. But when the superior power of the world ignores the basic norm of international law though it is its guarantor, it denies normative authority itself and introduces its erosion. A norm is both denied by its breach and when its objective presuppositions are dismissed as unfounded and then read in the long run in an "adjusted" idea of law. This is irrational to a high degree for a cold political realism. To believe the stability of a complex order could be established for ever on an advantage of power is bizarre, na´ve or childish. The only possibility of permanently assuring this order is guaranteeing its legal foundation.
Amateurism of a World Power
What if the Security Council leaps into the breach and authorizes a military strike? Two questions must be distinguished here: the realization of such a resolution and the legal limits of its substance. The authorization of force would be illegal if the Council only yielded to the pressure imposed by Bush with the threat of future "irrelevance". This authorization would be the result of coercion or constraint. Its substance would depend on the enforcer, the American president, and no longer on the Security Council. However this enforcer is not justified in issuing a resolution authorizing force according to chapter 7 of the UN Charter. The resolution would be without a legitimate author. As a legal foundation, it would be nothing.
That there is no authority any more above the Security Council that can decree the necessary steps is true but is another story or a completely different matter. However the Council decides, its discrediting by the US is now certain. Consent is suspected of being the product of coercion. The idea that China alone at the end may prevent such a course is embarrassing. The sight of a political amateurism still in the center of world power that doesn't recognize this result of its action or regards it insignificant is depressing.
Let us assume this attempted constraint does not occur. Would the Security Council be justified formally and practically in authorizing a war against Iraq under present circumstances? No. The Council is not subject to the prohibition of force from Article 2 paragraph 4 of the Charter because it is one of its organs, not its normal addressant, one of the "members" of the UN. Its dispensation from the internal Charter prohibition reflects the substance of the authority delegated to it as an executive organ of the collective security system of the UN.
Still the Security Council is bound to the goals of the Charter as a whole. These goals constitute the order of the community of states and the order of law. The Council has powers to use force that extend far beyond the individual state right of self-defense. The Charter grants it a wide discretion in deciding over its presuppositions. Nevertheless it is also subject to law. As a result, its legitimation ends where its resolutions exceed the limits of the idea of law. If the Charter subjects a UN member to military force, the danger to peace is in the uncontrollability of its weapon arsenals, not in a threatened attack. An automatic authorization of individual states to war would be nothing but dispensation from the prohibition of force.
What about the "war against terrorism"? When is a state responsible for acts of violence that private persons inflict on other states making it a legitimate target for a military self-defense of the attacked? When the state dispatches the terrorists? When the state endures, promotes or merely could prevent them? All this was vague and controversial in international law before September 11, 2001. The events in New York and Washington have cleared up the thicket of questions with incredible speed. In any case, the military strike against the Taliban regime in Afghanistan from October 2001 may have been legitimate according to the less on that September 11 also forced on specialists of international law. An administration of justice that only offers old instruments for countering this new threat must be rejected. The Security Council immediately understood this and energetically reminds America and the rest of the world of the limits to the right of self-defense.
Iraq must be shown to presently support terrorists to legitimate a war. That Iraq supported them in the past is not enough. The principle of self-defense does not allow wither revenge or punishment. As a result, military reprisals are inadmissible. The US did not observe this in the last years against Bagdad. This does not change the authority of the principle.
One should not be suspicious of American motives. However a blind fanaticism that doesn't see it is one of the victims whom it wants to bring freedom and justice must be criticized. In December 1875, Bismarck after remarking in the Reichstag that three preventive wars were on his historical account declared that foreign policy cannot be pursued with legal principles. The development of international law in the 20th century could be described as the refutation of this statement. "The Gentile Civilizer of Nations" is the title of a book of the Finnish international jurist Marti Koskenniem that appeared in America. The US has the greatest share in this civilizing. That the US now wants to withdraw from this civilizing imperative is pathetic.