International law a political beast
By David Gambrill
When the United States amassed troops on Iraq’s borders last week and began lobbying missiles at Baghdad, did it have the authority of international law to back it up?
Yes and no, say international law scholars.
This uncertainty points to the political nature of international law, they say.
“We shouldn’t see law through rose-coloured glasses,” says Osgoode Hall Law School associate dean Craig M. Scott. “Law is an ethos of persuasion.”
In an Ontario Bar Association conference late last month, Scott noted opinion polls in Britain suggested the population was split 65-35 against going to war without first receiving UN Security Council approval. But those numbers flipped the other way — 65-35 in favour of war — if the UN Security Council approved multilateral action against Iraq.
“Are they so beguiled by law that just the fact of a formal vote makes them feel really good [about war]?” said Scott. “Or is it somewhere in their reasoning they think that some process of persuasion will occur [at the UN], and that there is a collective decision only because it is the right decision?”
For several months, the United States invoked the right to “collective self-defence” in support of plans to disarm Iraq and oust Hussein from power. Last week, faced with a likely veto from France, a permanent member of the Security Council, the United States and Britain withdrew a proposed resolution that would have explicitly authorized force against Iraq as a consequence of failing to comply with UN Resolution 1441.
Passed in November 2002, Resolution 1441 calls on Iraq to provide “an accurate, full, final, and complete disclosure, as required by Resolution 687, of all aspects of its programmes to develop weapons of mass destruction.”
The Security Council passed Resolution 687 in 1991. It sanctioned an attack by a U.S.-led military coalition against Iraq. The Gulf War followed closely on the heels of an Iraqi invasion of Kuwait.
Whether Resolution 1441 authorizes the United States to go to war against Iraq in 2003 is a thorny legal issue. The resolution recalls “the [UN Security] Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations.”
In the last decade, the UN has passed at least 10 resolutions calling on Iraq to disclose its weapons of mass destruction.
Shortly after Resolution 1441 passed, three members of the Security Council — France, Germany, and Russia — issued a memorandum of understanding. “The military option should only be a last resort,” it said. “So far, the conditions for using force against Iraq are not fulfilled.”
Carleton University law professor Trevor Purvis said absent the full support of the Security Council, a unilateral attack of Iraq by the United States and Britain is illegal.
“We are going back to pretty much to the pre-League of Nations days to a world where international law is really not law at all — it’s really simply Law of the Jungle,” he said.
‘Law is an ethos of persuasion,’ says Osgoode’s associate dean Craig Scott.
Purvis said Art. 2(4) and 51 of the UN Charter do not allow member nations to attack one another, except under rare and specific circumstances.
Article 2(4) says: “all [UN] members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”
Article 51 says: “nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations.”
It is debatable whether a pre-emptive invasion of Iraq, as proposed by the United States and Britain, falls within the definition of “collective self-defence,” say international law scholars.
Purvis said the Bush Doctrine interprets “anticipatory attack” as justifiable under the collective self-defence clause of the UN Charter. But “the notion of anticipatory self-defence that the Bush Doctrine incorporates is so far-fetched vis-à-vis those [UN Charter] principles as to basically negate them,” he said.
“Basically what the Bush Doctrine suggests is, ‘If we think that down the road you might cause us some harm in some indirect way, we can kick your ass if we want.’”
Article 41 of the UN Charter gives the Security Council power to take measures that “give effect to its decisions.” Specifically, Art. 42 authorizes the council to “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.”
But is unanimity at the Security Council necessary for such actions to be legal under international law?
The UN Charter doesn’t say the Security Council must explicitly authorize force, said Scott. As a result, international law has developed an unclear language of euphemism.
“It’s kind of important to know, however forced and unaccepted a lot of the U.S. interpretations are, they’re not wacky,” said Scott. “They’re not out of bounds on the basic idea that authorization [of force] could potentially be implicit.”
Scott noted Security Council resolutions passed in 1990 frequently used phrases such as “all necessary means” or “serious consequences” instead of more concrete terms like “military force” or “war.”
“Already, 13 years ago, we have an example of language in a Security Council resolution that is not explicit, or expressed as it could be, in authorizing force,” he noted.
Critics of another war in Iraq are placing too much emphasis on the procedural aspects of international law, said University of Toronto law professor Ed Morgan. Based on substantive aspects of international law, “the Americans have a better argument than people think,” he said.
For example, Morgan said “developing international custom” might sanction U.S. and British military action against Iraq based on “humanitarian” grounds.
“There is some precedent in international law for armed forces being used in order to displace brutally oppressive, human-rights-abusing regimes,” said Morgan. “Many of the most vocal critics [of military action] on the Security Council have engaged in it themselves when they thought there was a proper case for intervention.
“I saw the Syrian ambassador — Syria is on the Security Council — condemning the Americans for this use of force [against Iraq]. And we know the Syrians intervened massively in the civil war in Lebanon. Still today, they occupy a portion of Lebanon in order, they say, to keep the peace.”
Scott said the United States has taken a different — and novel — tack in its interpretation of international law. He said one “radical” perspective of United States negotiators is that UN Security Council resolutions have the same legal status as international “treaties.”
Many times, United States officials said Hussein is in “a material breach” of the conditions laid out in UN resolutions since 1991. The use of the phrase “material breach” is instructive, said Scott.
Article 60 of the Vienna Convention on the Law of Treaties says “a material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.”
Based on Iraq’s “material breach” of UN resolutions subsequent to Resolution 687, the United States has claimed all UN resolutions prior to 687 are void or inoperative, said Scott. That renders operative once again Resolution 687, which authorized the use of force against Iraq in 1991.
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