As I said, all good for YOU, in your opinion, which apparently takes no account of international law, the wishes of the American people, or the highly misleading way the war was sold to the American people. The American people would never have accepted your reasons as a reason for war. Never.
Under international law they are pretty clearly not a justification for war either. Of course we can choose to become an outlaw nation, and you might even think that good, but I do not. Your "good" reasons are silly, and the instability that the course you still champion creates in international law is insupportable. You would not want China and India preemptively waging war (presumably). That they might do it anyway, is not the point. If we have any hope of marshalling international law in a way that corrals the aggressive tendencies of nations, it is by agreeing to toe the line when it comes to aggressive invasion of other countries. The US breech in this regard is deplorable.
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The Proscription of the Use of Force
There are two aspects of international law dealing with the law of force: jus ad bellum, or the rules relating the use of force, and jus in bello, or the rules regulating the conduct of hostilities. [1] This paper primarily addresses the jus ad bellum, or the legality of the attack on Iraq, and the consequences of that, as well as aspects of jus in bello, in particular the obligations of belligerent occupants of attacked territories.
Following World War I, sixty-three nations renounced war as an instrument of foreign policy in the Kellogg-Briand Pact of 1928. [2] The United States, Australia, Great Britain, Italy and Japan were among the countries that signed that treaty, which provided that the Parties “solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.” That Pact failed to prevent World War II, but in condemning recourse to war and renouncing war as an instrument of national policy it formed the basis for ‘crimes against peace’, which were described in the Charter of the Nuremberg tribunal as those crimes aimed at the planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties. [3] The Nuremberg Tribunal observed that “[w]ar is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world. To initiate a war of aggression, [4] therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” [5]
The crime against peace under international common law was recognised by the Nuremberg Tribunal following World War II, noting that the Pact was evidence of a sufficient crystallization of world opinion to authorise a judicial finding in favour of the existence of a ‘crime against peace’. [6] The International Criminal Court does potentially have jurisdiction over crimes of aggression, [7] and the Court can exercise jurisdiction over the crime of aggression once a provision is adopted defining the crime and setting out the conditions under which the Court shall exercise jurisdiction. [8] The legal position as stated by the Nuremberg Tribunal is that those who perpetrate crimes of aggression commit not only a crime under international law but commit the supreme international crime. The inability of the ICC to take jurisdiction at this stage does not negate the nature of the crime but merely the ICC’s ability to hold perpetrators accountable.
The United Nations Charter was concluded “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind” and the United Nations was established with the purposes:
1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
Article 2(3) requires that all members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered and Article 2(4) requires that all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.
The ICJ in the Nicaragua case was in no doubt as to the status of the prohibition on the use of force: [9]
“The Court finds that both Parties take the view that the principles as to the use of force incorporated in the United Nations Charter correspond, in essentials, to those found in customary international law…. They therefore accept a treaty-law obligation to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations…
The general rule prohibiting force established in customary law allows for certain exceptions… [Resolution 2625 (XXV)] demonstrates that the States represented in the General Assembly regard the exception to the prohibition of the use of force constituted by the right of individual or collective self-defence as already a matter of customary international law.
The only stated exceptions in the Charter lie in article 51, which preserves the “inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security,” and collective actions under Chapter VII, and in particular article 42.
The often cited legal test for necessity and proportionality in self-defence relates to a dispute between Britain and the United States. In the winter of 1837, British and Canadian forces believed that an American flagged ship, the Caroline, was ferrying arms, recruits, and supplies from the American side of the border to anti-British rebels on the Canadian side of the border during an anti-British insurrection. While most of the crew slept, British and Canadian troops boarded the ship, attacked the crew and passengers, set her on fire, and towed her into the river toward Niagara Falls, killing two. In a formulation which has been widely cited as the standard test for necessity in self defence, American Secretary of State Daniel Webster responded to a British claim of self defence by saying that “t will be for that [British] Government to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation. [10] While the Caroline case concerned a case of anticipatory self-defence, it pre-dated the Kellogg-Briand Pact and the United Nations Charter prohibitions on the use of force and does not necessarily stand as a contemporary justification for pre-emptive force or anticipatory self-defence. [11] It is to be noted that even anticipatory self defence as a doubtful justification for the use of force. Christine Gray notes that the actual invocation of the right to anticipatory self-defence is rare and that states prefer to take a wide view of armed attack rather than openly claim anticipatory self-defence: “It is only where no conceivable case can be made for this that they resort to anticipatory self-defence. This reluctance expressly to invoke anticipatory self-defence is in itself a clear indication of the doubtful status of this justification for the use of force.” [12] This may be another reason the United States and United Kingdom sought to justify their use of force against Iraq by reference to resolutions 678 (1990) and 687 (1991) rather than attempt to justify them on a basis of anticipatory self-defence of the Bush doctrine of preventive war. [13] |
