Before a Defeat of International Law
Iraq Conflict: Who wins in the Iraq conflict: the strength of the law or the law of the stronger?
By Robert Leicht
[This article originally published in: DIE ZEIT, 08/2003 is translated from the German on the World Wide Web, http://zeus.zeit.de/text/2003/08/Kriegsv_9alkerrecht.]
When the UN Security Council meets on Friday, the world order altogether will be at stake, not only Iraq. Will the western alliance survive this day? Will Europe collapse? International law belongs to the customary world order, not only the alliances. International law could also be smashed to pieces in the Iraq conflict. Collective international law and the unity of the West will be damaged if the US, embittered over a "blockade" of its policy in the Security Council, declares the United Nations irrelevant and opens up the war against Iraq.
Who will be victorious on Friday if the vote takes place: the strength of the law or the law of the stronger? The question is not as na´ve as it sounds. Whoever answers hastily "as always the law of the stronger!" extinguishes every idea of a generally binding law from relations between the powers. The weaker will be hurt in two ways since the weaker will have neither power nor law on its side. But what good is a law that cannot be enforced either against a superpower or against a rogue state?
The strength of the law or the law of the stronger - this unequal struggle between the noble principle and the harsh praxis pervades the history of international law from its beginning to the end of this week. The rogue state is certainly in the wrong but is the superpower US completely in the right? What does international law say about conflict with Iraq?
Modern international law has overcome the doctrine of "just war" but not war. The different arguments of "just war" were always only moral speculations of theologians and philosophers. Frederick the Great, Napoleon and Bismarck all waged their wars for the sake of power. A right in war (jus in bello) was cautiously developed at the turn of the 20th century that lives on today in the Geneva and Haage conventions. This right like the claimed right to war (jus ad bellum) was intact up to 1938. At that time, the Kellogg pact for the first time outlawed every form of offensive war without providing sanctions against aggressors.
The charter of the United Nations from 1945 attempts a realistic balance. The Charter contains on one side a radical prohibition of war and on the other side rules for opposing a disturbance of the peace. A general prohibition of force is valid as a principle: "All members in their international relations should desist from all threat or use of force directed against the territorial intactness or political independence of a state or otherwise inconsistent with the goals of the United Nations" (Article 2 of the UN Charter).
Only two exceptions exist to the prohibition of force. The first exception is "the natural right to individual and collective self-defense" in case of an armed attack from outside. However Saddam Hussein's regime is regarded, there isn't any talk of an armed attack on the US. Can a preventive war against Iraq be preventive self-defense? International law gives no grounds for preventive self-defense because the very narrow criteria assume a directly imminent attack making impossible any other defense. (Therefore the Security Council with the vote of the US in 1981 condemned Israel for its preventive bombing of an Iraqi nuclear reactor although - different from today - the reactor was under construction. Iraq at that time stood on the "right" side from a western view in the struggle against Iran.) International law does not approve a pre-emptive war to prevent the rise of a future danger. Offensive war only for the purpose of a regime change is renounced. Such a strike violates the first principle of international law, namely against the equal sovereignty and territorial intactness of all states. This sentence now protects all states (and the order between them), even if the order in them is in no way pleasing.
Consequently only the second exception from the radical prohibition of force in the UN Charter can be valid in the Iraq conflict. Coercive measures according to chapter VII can only be taken by the Security Council, only by this group!, when a state "endangers world peace and international security". A majority in the whole Security Council (among its permanent and temporary members) must be found for such coercive measures. Secondly, none of the five permanent members may lodge a veto against the resoluti8on. If there is no majority or even one veto, there is no legal title in international law for collective coercive measures not even against Iraq. How simple and how complex!
Stalemate in the Security Council: For this case, the US (and Tony Blair) already announced they will not be hindered from an attack on Iraq by the Security Council if Saddam Hussein doesn't do what they expect from him. That would be the emergency - and the end - for collective international law. However there are now a series of complications that move this conclusion into suspicion again.
Complication No. 1: The Security Council is not an independent court of equal judges but a political organ with five privileged veto-powers. Security Council resolutions create formally valid international law but not always material justice. Some vetoes are lodged only for reasons of power politics.
Complication No. 2: For this reason, the community of nations intervened in Kosovo without a UN mandate. A mandate failed at that time for two reasons. Kosovo in international law was an integral part of the state of Serbia. A strict prohibition of intervention was in effect. A Russian veto threatened. Given the alternative "watching helplessly or helping lawlessly", Nato at that time opposed the murderous ethnic bloodbath beyond formal international law. Resistance to an acute genocide is different from disarmament of a potential adversary on suspicion. Is there also an extreme case where the question is posed: What happens when the Security Council does nothing?
Complication No. 3: Two questions must be distinguished - one concerning the state of affairs and the other the legal consequences. The first question is: Has Iraq observed the UN resolutions and disarmed? The burden of proof here is with Iraq, not with the United Nations. Iraq lost a war in 1991. The armistice left Iraq in a state of limited sovereignty up to today. Iraq is obliged to disarmament and to the proof of disarmament. The fact that Saddam Hussein has not carried out this obligation cannot be ascertained. The second question focuses on consequences and sanctions. This is not only a question of law but a question of political opportunity and stability in the region, even after a war.
The question of the consequences of war can only be answered in the Security Council according to the UN Charter. This answer is not found in the textbooks of international law although it also decides the legitimacy of a war, at least afterwards. The dictum of the young Bismarck is valid here: Whoever wants to begin a war is on the lookout for reasons that last even after the war. These prognoses are so problematic that they should only be made in the most acute emergency, thus never purely preventively and without closing of ranks of the community of nations. What would be gained in the long run with a victory over Iraq - and a defeat of international law?