[PEN-L:30332] RE: the thorny matter of international law ii

["Devine, James" <jdevine@xxxxxxx>]

Title: RE: [PEN-L:30322] the thorny matter of international law ii

does the U.S. government give a shit about international law? has it ever, unless it served the perceived "national interest"?

------------------------
Jim Devine jdevine@xxxxxxx &  http://bellarmine.lmu.edu/~jdevine

> -----Original Message-----
> From: Ian Murray [mailto:seamus2001@xxxxxxxxx]
> Sent: Tuesday, September 17, 2002 5:36 PM
> To: pen-l
> Subject: [PEN-L:30322] the thorny matter of international law ii
>
>
> The case for war
> Adam Roberts on why military action against Iraq can be
> legally justified
> Tuesday September 17, 2002
> The Guardian
>
> Would the use of force against Iraq be justifiable in
> international law even if
> the current negotiations in the UN security council result in no new
> authorisation? On this key question there are profound
> differences of opinion,
> in part reflecting different views of what international law is.
>
> The debate has been needlessly muddled due to the baroque
> range of rationales
> for an assault on Iraq produced by various members of the US
> administration over
> the past few months. In an extraordinarily amateurish
> cacophony, US officials
> have stressed the need for regime change, for preventive war
> to stop a possible
> future threat, and for a pre-emptive strike against an
> imminent threat. They
> have also spoke of an attack on Iraq as the next phase of the
> war on terrorism.
> Although these rationales reflect real concerns, and some
> have respectable legal
> precedents, each presents acute problems if viewed as the
> prime basis for
> action. In some cases the evidence available may be widely viewed as
> insufficient to fit the argument.
>
> Some of these rationales will not persuade key
> constituencies, especially in the
> region. Worst of all, some of them (especially regime change
> and preventive war)
> risk opening up possibilities of other states taking
> unilateral action against
> any country they fear or dislike: witness current Russian
> threats of unilateral
> action in Georgia. It is no wonder that many lawyers and
> others have been
> sceptical about the US rationales.
>
> The fundamental legal argument against a projected US-led use
> of force, which
> adds to the current scepticism, is that under the UN charter
> force against a
> sovereign state is legitimate only when it is unambiguously
> self-defence against
> an armed attack, or when the security council specifically
> authorises it. In
> this view of the law, since the US and UK continue to say
> they may take action
> even if they fail to get security council approval, the
> proposed military action
> would appear unlawful. This is a serious view, which has
> attracted considerable
> support, but it is not the last word on the subject.
>
> Another view of international law puts more weight on ongoing
> practice. In this
> view, the very success of the UN system in propounding
> international standards
> can, in exceptional circumstances, create situations in which
> force may be
> lawful - or at least not unambiguously illegal. For example,
> if a state
> systematically kills or drives out its own citizens or
> supports wholesale
> terrorist activities, then the use of force against it may be accepted
> internationally even if there is no specific security council
> resolution. The
> coalition action that enabled Kurdish refugees to return home
> to northern Iraq
> in April 1991 is an example of such a "unilateral" use of
> force that gained
> international acceptance.
>
> Such action can be necessary because the security council has
> developed the
> habit of willing certain ends, but being reluctant to accept
> the military means
> to enforce them. For example, over Kosovo in 1998-99, the
> security council
> called on Yugoslavia to stop persecuting the Kosovan
> Albanians, but could not
> agree on military action because of the threat of a Russian
> or Chinese veto.
> When Nato embarked on military action, a move in the security
> council to declare
> it illegal failed, and the security council subsequently
> recognised the results
> of Nato's use of force by collaborating closely in the
> running of the province.
>
> In the case of Iraq, the core rationale for military action
> is Iraq's consistent
> violation of UN security council resolutions, particularly as regards
> disarmament and inspection. Over the summer, the Bush administration's
> ambivalence, or worse, about international institutions has
> prevented some of
> its members from putting security council resolutions at the
> heart of the
> argument about Iraq. This caused exceptional international
> hostility and
> scepticism towards US policy. George Bush's remarkable
> address at the UN general
> assembly on September 12 rectified that elementary mistake.
>
> The basic facts about the security council resolutions on
> Iraq are simple. All
> were adopted under chapter VII of the charter, which deals
> with enforcement; and
> all (unlike the main resolutions on the Israeli-occupied
> territories, which call
> for a negotiated settlement) require specific, immediate and
> unilateral Iraqi
> action.
>
> In resolution 678 of November 29 1990, the security council
> authorised member
> states to use force not just to implement the resolutions
> demanding Iraqi
> withdrawal from Kuwait, but also "to restore international
> peace and security in
> the area". At the time this was not seen as authorisation for
> a march on
> Baghdad, but it was a prudent recognition of the need for a
> range of measures to
> ensure stability. This resolution, including its reference to
> restoring peace
> and security, was strongly reaffirmed in resolution 686 of
> March 2 1991, at the
> end of the campaign to expel Iraq from Kuwait. Then
> resolution 687 of April 3
> 1991, "the mother of all resolutions", which spelt out the
> detailed terms of the
> ceasefire, required Iraq to renounce, unconditionally, any
> biological, chemical
> or nuclear programmes, and accept international inspection and weapons
> destruction by the UN special commission.
>
> Iraq has persistently violated these ceasefire provisions.
> The facts about this
> are laid out in Iraq's Weapons of Mass Destruction: A Net
> Assessment, published
> by the International Institute for Strategic Studies on
> September 9. One could
> add that by systematically concealing information from the UN weapons
> commission, Iraq compelled it to rely on western intelligence
> agencies,
> including the CIA, whose modus operandi contributed
> significantly to the
> commission's problems. In 1998, Iraq ceased all cooperation.
> Security council
> resolution 1205 of November 5 1998, passed unanimously,
> condemned Iraq as "in
> flagrant violation" of its ceasefire commitments. If one
> party violates
> ceasefire terms there must be doubt about whether the other
> parties, including
> the US and UK, remain bound by the ceasefire.
>
> In short, the strongest case for the legality of military
> action rests not on
> any general propositions about preventive defence or any
> other such ground, but
> upon Iraq's violation of UN resolutions. These resolutions
> already reflected
> wider concerns about the dangers posed by the Iraqi regime:
> it was precisely
> because of the need for preventive action that these
> particular ceasefire terms
> were imposed on Iraq in the first place.
>
> To rely on the violation of security council resolutions as
> the core legal
> rationale reduces a worrying risk that all the other
> purported rationales for
> military action present: they raise the bar for what would be
> convincing
> evidence justifying military action, for example requiring
> evidence of imminent
> threat of attack. With the violation of resolutions the
> evidence already exists,
> and there is less need to hype up the Iraqi threat in a
> manner that invites
> disbelief.
>
> Apart from the fundamentalist view that the only lawful
> unilateral use of force
> is self-defence, what are the main legal counter-arguments?
> Perhaps the
> strongest is that the key 1991 ceasefire resolution, 687,
> concludes by saying
> that the security council "decides to remain seized of the
> matter and to take
> such further steps as may be required for the implementation
> of the present
> resolution and to secure peace and security in the area".
> This implies an
> obligation to try to take action through the security
> council. The US, thanks in
> part to UK pressure, is belatedly taking this path.
>
> Might the UN security council go so far as to authorise the
> use of force? It
> could do implicitly, by setting Iraq a deadline for
> compliance, and by spelling
> out that the ceasefire was and remains contingent on Iraqi
> compliance with all
> the terms of resolution 687. Or the security council could
> explicitly authorise
> force. The UK and US indications that they may act militarily
> whatever happens
> at the security council have already had a galvanising
> effect, compelling other
> members to consider whether they want the UN body responsible
> for international
> security to be left out of the picture. Also, security
> council members should be
> aware that one way to avert war may be to make a clear
> collective threat,
> thereby inducing concessions from Baghdad; indecision on the
> security council is
> more likely to lead to war. There is a real possibility that
> neither Russia nor
> China will exercise its veto power and that a tough
> resolution could be passed.
>
> The key arguments about the threatened military operation are
> prudential. Has
> deterrence of Iraq failed so clearly that action must now be
> taken? Is it wise
> to start this war when there is so much unfinished business
> in Afghanistan?
> Should action be taken against Iraq before there is a further
> effort to address
> the Israel-Palestine problem? Is there any viable plan for
> the future of Iraq?
> These all need to be explored, but preferably on the
> understanding that, in
> legal terms, there is a stronger basis for military action
> against Iraq than
> there was over Kosovo in 1999. Baghdad's systematic violation
> of ceasefire terms
> is the mother of all the other legal justifications being
> offered for the use of
> force against Iraq.
>
> · Sir Adam Roberts is Montague Burton professor of
> international relations at
> Oxford University and co-editor of Documents on the Laws of
> War. * An inquiry
> into the legality of the use of force against Iraq, organised
> by Public Interest
> Lawyers on behalf of Peacerights, will be held at 10am on
> October 11at Gray's
> Inn hall, London WC1. For more information, contact nis@xxxxxxxxxxx
>
>
>