Ultimatum to the United Nations
With the Threat of a Unilateral Military Strike, George W. Bush Forces His War Goal on the United Nations
By Robert Leicht
[This article originally published in: DIE ZEIT, 39/2002 is translated from the German on the World Wide Web, http://www.zeit.de/2002/39/Politik/print_200239_voelkerrecht_ira.html.]
High treason, as the infamous French foreign minister Talleyrand said, is a question of the moment. Sometimes this is also true for international law. On June 7, 1981, the Israeli air force bombarded the Iraqi nuclear reactor Tamuz 1 that was under construction. Only five days later, the UN Security Council - with the vote of the US - condemned this "pre-meditated attack" as a clear violation of international law. With what right can the US do on a large scale what it condemned regarding Israel?
International law is not a traffic regulation that can be easily supervised. International law has often been expanded, perverted and broken. However the injustice of the other does not legitimate one's own violation of international law. The power of the status quo does not establish a right of the stronger. How would a war against Iraq be judged by international law?
The main rule of modern international law, the absolute prohibition of violence, is found in Article 2 paragraph 4 of the 1945 Charter of the United Nations. "All members in their international relations should refrain from any threat or use of force directed against the territorial integrity or political independence of a state or otherwise incompatible with the goals of the United Nations."
This sounds too good to be true. However specialists in international law only know two exceptions from this comprehensive prohibition of violence. The first exception is the natural right of self-defense of every state (Article 51 of the Charter). The second exception concerns the collective coercive measures of the United Nations according to articles 42 and 53 of the Charter. Accordingly the UN Security Council can allow certain member states or regional alliances the use of force.
Prohibition of Force with Exceptions
If the US wants to wage a war against Iraq, it faces a seemingly simple alternative. The US could choose an action outside the system of the United Nations involving the case of self-defense or the collective self-defense of an attacked alliance as in the war against the Taliban. As a second course, the US could urge a collective action of the United Nations, assuming the presuppositions exist under which the UN could impose coercive measures or sanctions according to its charter. George W. Bush's recent speech before the General Assembly included an ultimatum: Either you bring Saddam Hussein to reason or we will act unilaterally against him.
Would such a unilateral action of the US be supported by international law? Such an action would hardly be an act of the right of self-defense. Self-defense assumes an armed attack. The UN General Assembly defined aggression in a 1974 resolution. The tolerance of "armed bands, groups, guerillas or mercenaries" who from one state act against another state is cited beside the "classical" offensive actions. Most authors who plead for a war against Iraq in the domestic American debate do not rely on an acute right of self-defense. For example, Kenneth M. Pollack in Foreign Affairs wrote that Saddam Hussein's overthrow is not a necessary component in the war against terrorism. Iraq represents a brewing danger while bin Laden and his accomplices are an immediate danger.
An allowed "preventive self-defense" is controversial in international law. On one hand, the concerned state in view of present weapons technology cannot be forced to allow an attack before resisting. On the other hand,, the approval of all "preventive self-defense" would be an intolerable expansion of this power. Israel's preventive war against Egypt in the 6-day war was regarded as justified in this sense by several states. The Caroline clause from 1837 is still cited: preventive actions are only tolerable in cases where the necessity of self-defense is immediate and overwhelming and neither the choice of methods nor a possibility of negotiations remains." Thus a preventive war is allowed in narrow limits. A "pre-emptive war", a war that would nip in the bud the rise of a danger is still prohibited. As a result, the Israeli attack on Tamuz 1 was generally condemned. Pre-emptive war is de facto an offensive war. For Germany, any participation in such a war would be intolerable in international law and domestic law...
If one rightly reads the smoke signals from the American administration, those pleading for a unilateral military strike against Iraq will not be stopped for long with such distinctions. Their goal was an unconditional removal of Saddam Hussein. However a war with this goal flagrantly violates the cardinal rules of international law, respect of the territorial integrity of all states and non-intervention in their internal affairs. To be sure, the absolute prohibition of intervention unfortunately also protects naked tyranny as long as it doesn't wage offensive wars. Still no international order is possible without this principle.
War Goal: Regime Change
Former US Secretary of State Henry Kissinger described a war with the goal of an overthrow of Saddam Hussein as "revolutionary" in international law. Regime change as a goal of a military intervention violates the system of international relations established in 1648 by the Westphalian Peace that anchored the principle of non-intervention in the internal affairs of other states. In addition, the term justified pre-emption runs counter to modern international law since the use of force is only allowed for self-defense against acute threats, not potential threats".
Recently there has been a tendency in international law to relativize the prohibition on intervention where it would force inactivity toward naked genocide. However the attempt to bind "humanitarian interventions" to a mandate of the community of nations already failed in the case of Kosovo. NATO bombarded Serbia without a UN mandate. The mandate ultimately broke down since Kosovo is an integral element of Serbia in international law, not a particular state with a right of self-defense. On the other side, the US resists recent attempts to withdraw protection of the prohibition on force from war criminals. The US strongly resists the International Criminal Court.
International law only allows exceptions from this strict prohibition of intervention in the framework of the UN Charter and only for goals consistent with the charter, not for the purpose of a regime change somewhere in the world. With his speech before the UN General Assembly, President George W. Bush summoned the United Nations in an ultimatum to force Iraq to completely fulfill all the relevant resolutions of the Security Council from 1991. He opened up Iraq' register of sins without conclusive evidence for a case of acute self-defense. First he announced the US would work towards the "necessary resolutions" with the Security Council. This may soothe specialists in international law. A more complex controversy is avoided over the question whether the eleven-year old arms control resolutions that ended the Gulf war still give an immediate legal title for a military strike against Iraq. Second, and this will alarm international jurists, the American president left open how Washington would act if the Security Council neither passed the "right" resolutions nor mandated the "right" military measures. His speech left dry gunpowder for a unilateral military strike.
With the threat of a US military strike violating international law, the American president forces the UN to approve coercive measures or sanctions which only serve limited goals enforcing resolutions which can easily be used for the originally prohibited war goal: regime change from the outside. Can the power of the status quo shrug off the powerlessness of the law? Will not the powerlessness of the status quo be proven in the end, winning the war, not stability in the region?