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Politics : Foreign Affairs Discussion Group

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To: Hawkmoon who wrote (55054)	10/28/2002 9:44:25 AM
From: richardbt	Read Replies (2) of 281500

Hawkmoon - Re Your answers to "Illegal war" >1.) You have to a legal statute governing use of force >for there be an "illegal war".. >2.) The closest thing to this is the United Nations and >Chapter VI resolutions. Not the closest thing. The UN Charter is the fundamental document governing the use of force in international relations. In essence it makes the threat or use of force to settle international disputes impermissible. See especially Arts. 2(3) and 2(4). The Chapter VI stuff does not necessarily permit the Security Council to authorise the use of force - although the wording is a bit woolly the general impression it gives is that it is concerned with the settlement of disputes by peaceful means (the text of the Charter is here btw: un.org Chapter VII is actually closer as this specifically contemplates the use of armed-forces to maintain international peace and security if the security council deems it so necessary. However this section is a bit of a dead letter since it contemplated the UN having it's own armed forces made of contingents from member states. Because of the cold war this never happened and the legal basis for the UN sanctioning the use of force (as in Korea and the Gulf War) is somewhat slippery. >3.) And it can hardly be "illegal" to enforce those >resolutions if other UN members are not willing to do so. Actually it probably is. The overriding principle of the UN Charter is the preservation of international peace and security. The use of force is a bad thing and ONLY the Security Council has power to use it under Chapter VII. Since the means (i.e. the combined armed forces under UN command) the Charter contemplated for doing this were never put in place it is debatable if there is any legal way of enforcing UN resolutions. Practice (the Korean and Gulf wars) indicates that it is acceptable for the Security Council to authorise combined international forces to preserve the peace and rectify breaches of the Charter but this practice has built up independently of the Charter and is not authorised by it. In any event it is certainly not permissible for a UN member to just arbitrarily decide it is going to independently enforce (its interpretation) of UN resolutions without sanction of the Security Council just as it wouldn't be for a private individual to become a vigilante. >4.) Thus, any war against Iraq is NOT illegal, since they >have violated each and every one of the binding >resolutions statutes) from 1991. Only with the Security Council's approval would it be even vaguely legal. Of course Israel has ignored a huge number of UN resolutions relating to occupation of the West Bank and Gaza etc. Do you accept that it would be okay for the entire Arab world to attack Israel to enforce these? >Bottom line.. what is law without the will or ability to >enforce them.. Is it "illegal" to declare international >"indictments" and not follow through on prosecuting?? A fascinating jurisprudential question. I remember this one. People have written books debating whether or not international "law" is really "law" because of this exact problem. There is no generally accepted answer. Some academic lawyers argue that it's not law at all, simply the exercise of raw power which states attempt to cover with a fig leaf of legality by the fact that the powerful states can control the relevant institutions, others say that it is law but of a special type (the arguments about special in what way have used up a lot of paper as well). Hart in "The Concept of Law" (just as dull as it sounds) spends about a third of the book attempting (unsuccessfully IMHO, but then I never had any time for Hart, I'm a Gerwith man :) ) to shoe horn International Law into his conceptual framework of what constitutes law in the strict sense. >Is it fair to society at large to put someone >on "probation" and then not >enforce the penalty when that person blatantly >defies the terms of their probation?? But the question should be: Is it acceptable for private individuals to enforce what they interpret as being the terms of that probation or should it be left to the official bodies responsible for these things. The police, the courts etc. What we basically have here is the US thinking they want to bomb Iraq then desperately scrabbling around for a pretext. They haven't done to well to be honest.

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