March 12, 2010
In Municipal Law, the citizens cannot put the law into their own hands even if the state is challenged with the difficulty of execution of the law. It is even seditious, hence a crime to perform acts of hate and revenge to a public or private person even under the pretense of a sound socio-political ideology (Art. 139 Revised Penal Code of the Philippines). In Public International Law, it is a fact that strictly speaking there is no official competent authority equipped with enough power for its implementation. Hence, shall we say that when such authority as the UN, is faced with difficulty in its implementation, a country can violate settled principles of international law in order to effect sanctions against another country by itself?
Such is the subject of this discussion in the light of the 2003 US-Iraq War which continues to take its toll in the international community through economic depression, armed violence, bigotry and ideological disputes. The facts are as follows:
In 1990, Iraq invaded Kuwait which started the Persian Gulf War (1990-91). The United Nations approved a US-led coalition to intervene militarily in the conflict, leading to Iraq’s eventual defeat. Despite the onslaught, Saddam Hussein managed to stay in power. UN inspections during the mid-1990s revealed that Iraq was in possession of proscribed weaponry and technology; hence economic sanctions and weapons ban were effected in order to suppress Saddam’s lethal arms program which could later lead to production of WMD or weapons of mass destruction. Iraq’s continued breach of the arms ban and interference with UN inspection prompted then US President Bill Clinton to order Operation Desert Fox bombing several military installations in the territory. Because of this Iraq refused to accept further UN inspections.
In 2002, after the 911 attack, then US president Bush accused Iraq of supporting the al-Qaeda and of continued possession and manufacture of WMD. Subsequently, the UN Security Council issued Resolution 1441 demanding Iraq to re-admit inspections. Iraq subscribed to the resolution and submitted a 12,000-page declaration claiming no current WMD. US officials were quick to dismiss the denial. In early 2003 both US President Bush and British Prime Minister Blair declared that Iraq was hindering UN inspections and hiding WMD within its territory. In early 2003, while other world leaders such as Jacques Chirac of France and Gerhard Schroder of Germany sought to give Iraq more time, President Bush wanted no more UN Resolutions and gave Saddam 48 hours to leave Iraq. When the latter refused, Bush commenced his air strikes and deployed his infantry. Within days, Iraqi strongholds gave way to US occupation. Although search of the territory yielded no WMD, the US claimed to have found traces. Bush then contended that it was not only a preemptive war against terror but also a regime change project to liberate Iraq from Saddam’s hold and introduce democracy in the country.
This action by the US stirred much controversy in the international community. After seven years, the following questions prevail: 1. Whether or not the US violated settled principles of international law by making unilateral enforcement action against Iraq, and 2. Whether or not the democratic government set-up by the US in Iraq shall be recognized according to the Stimson Doctrine.
Without question, US intervention during the Persian Gulf War was justified. Both the armed enforcement actions and inspections, being UN-sanctioned were never unilateral and in accordance with the Charter. When there is danger to international peace the Security Council may interfere: 1. on its own (Art. 34 UN Charter), 2. as per General Assembly (Art 11), 3. as per the UN Secretary General (Art. 99), 4. upon motion by a UN Member (Art. 35 Par. 1), and 5. upon motion by a non-member (Art. 35 Par. 2). Also, armed resolution was only resorted to at the instance of acts of aggression by Iraq against Kuwait and upon approval by the Security Council (Art. 51).
As early as then, Iraq was already testing the political will of the UN, with Saddam playing hide and seek with the inspectors. Also, as early as then, US exhibited its tendency for unilateral action by effecting Operation Desert Fox. The waning of UN’s effort for constant inspection at Saddam’s instance (by refusing to accept the inspectors) and the loosening of economic sanctions due to the willingness of Iraq’s former trade partners to resume mercantile relations, showed once and for all the primordial weakness of international law: Enforcement. For it to be a true law; international law must be reasonable, moral, based on common consent of equal nations; and more importantly, it must be enforced. And sadly but truly, where international law fails, the law of might prevails.
If Operation Desert Fox was a violation of international law, there was a repeat of it during the 2003 US-Iraq War. In 2002, the US gave Islamic Fundamentalism’s stateless terrorism another known address: Iraq. It accused Saddam Hussein of possessing WMD and supporting the al-Qaeda. The UN Security Council was quick to interfere by issuing Resolution 1441 compelling Iraq to open up for inspection. Iraq also issued a 12,000-page declaration belying US allegations. But the US, then supported by Great Britain, was so sure of its theory. Either that you were with them or you were with the terrorists, the Bush Doctrine provided. Hence, not listening to other world leaders and not waiting for further UN Resolutions, the US made another unilateral enforcement action.
Clearly, the action was in violation of Art. 51 of the UN Charter. “Armed Attack” cannot be so construed to include imminent threat of a nuclear or atomic first strike or mere threats. (Quincy Wright, “The Cuban Quarantine,” p. 560) The Bush Doctrine of Anticipatory Self-Defense cannot apply until the cause for preemption is proven. And since the invasion was without UN sanction, evidence searched to support the WMD theory cannot be admissible as per the Exclusionary Rule; hence the US claim of having found traces is not tenable. UN members must also refrain from threat to the peace and must not resort to armed intervention on matters of territorial integrity and political independence of other states (Art. 2 Par. 3-4 UN Charter). Likewise member states are also required to use peaceful means in settling disputes (Art. 3). Enforcement or obligatory actions such as issuing an ultimatum prior to air strikes and military invasion also cannot be done unilaterally as it requires consent from the UN Security Council (Art. 53).
Now we go to the other weakness of the Bush Doctrine: Its inconsistency. When the preemption theory failed, Bush contended that it was actually a democratization project of the US—that the only way to keep their country and the world safe is by introducing democracy in the Middle East, particularly the rogue states reputed by them to be harboring terrorists. The war-induced removal from office, capture and subsequent trial, conviction and execution of Saddam Hussein on war crimes and human rights violation although purporting itself to be in accordance with the Nuremberg Judgment (an individual can be convicted of war crimes even if he claims to have acted in behalf of the state), cannot be countenanced by international law. For one, being an international dispute, it could have been more properly decided by an impartial international tribunal with the decision enforced through the Security Council (Art. 36 No. 2 and Art. 94 No. 2 Statute of the International Court of Justice).
The Bush Doctrine of using military action to effect democratization of other independent states is without question, of no moment within the ambit of international law. The end does not justify the means, being in violation of Art. 51. The Stimson Doctrine shall apply in the sense that the democratic government erected through external aggression shall not be recognized. This Pax Americana by means of war, being more retaliatory than preemptive, is inconsistent with the purposes of the United Nations (Art. 2 Par. 4 UN Charter). Hence any government established through it cannot demand recognition by operation of international law. Here, the Declarative View must prevail in that it shall remain within the discretion of independent recognizing states whether or not it will recognize post-Saddam Iraq at its own risk. For one, it could hardly be said that the current US-sponsored Iraqi government is able to maintain peace and security in the territory in the light of continuing sporadic assaults and bombings (by suicide bombers or otherwise) which only shows persistent resistance by many sectors. Also many countries still prohibit their citizens from traveling to Iraq.
The UN although it has yet no power to legislate, shall remain as one competent authority in enforcing international law through its rules of procedure (Art. 21-22, 62, 101 UN Charter). Although reprisal and war are some valid sanctions in international law, it cannot be done unilaterally but upon the instance of the UN Security Council. Hence the US even if supported by Britain cannot claim bilateral enforcement action for they acted like allies in a war of aggression not sanctioned by the UN. Although one direction of Public International Law is ultimately erecting a World State (with one World President, one Word Congress and Supreme Court of the World perhaps), it shall be effected slowly through reasonable, moral principles of international law consented upon and enforced by nations as equals and without pretenses of supremacy. Pax Americana if achieved through unjustified armed aggression cannot be more than acts of world domination and neo-colonialism if not imperialism, which Public International Law seeks to prevent in the light of the congenital rights of states.
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