Bill Bowring is professor of human rights
and international law at London Metropolitan University. He considers the
merits of the legal justification invoked by the United States and Britain in
their attempts to win approval for a possible military campaign against Iraq.
Both Tony Blair and George W. Bush are, at
the time of writing, under considerable pressure from public opinion to obtain
a further U.N. Security Council resolution before commencing the war against
Iraq which both desire.
It is clear to all that Resolution 1441 of
September 8 2002 did not contain the magic words -- "all necessary
means" -- needed to authorise the use of force.
But it will be recalled that in December
1998 the United States and Britain responded to Iraq's withdrawal of
cooperation with the U.N. weapons inspectors with stunning use of force
without any Security Council resolution. Operation Desert Fox lasted four days
and nights and involved more missiles than were used in the entire 1991 Gulf
War.
Why have the United States and Britain
returned to the Security Council? Does the present frantic activity directed
at securing a resolution authorising use of force signify a conversion to
compliance with international law?
This seems unlikely. For decades after its
creation on June 26, 1945 the United Nations and the international law it
enshrines seemed less than relevant. This was not least because of the
dropping of the atomic bomb by the United States on Hiroshima on August 6 and
Nagasaki on August 9, 1945.
The U.N. Charter plainly prohibits the use
of force except as authorised by the Security Council, except in self-defence.
But another world war was prevented not by the Charter but by the nuclear
"mutually assured destruction" of the two super-powers.
Most local wars -- in Nicaragua and
Afghanistan for example -- were waged with impunity by the superpowers or
their surrogates, within their respective spheres of influence.
The United States refused to ratify the main
U.N. human rights treaties, and for the most part ignored the United Nations.
The Soviet Union ratified all these covenants and treaties, but continued to
perpetrate gross violations of human rights. The rhetoric of international
legal justification was rarely heard.
NEW BEGINNING
The spectacular end of the Cold War in
1989-1991, from the demolition of the Berlin Wall to the collapse of the
Soviet Union, appeared to promise a new beginning. But events from then
onwards present for international law a tragedy in three acts: consummation,
seduction, and rejection -- or degradation.
The consummation of law and politics in 1990
appeared to be conclusive. On August 2,1990, Iraq invaded Kuwait, and -- after
a remarkably lengthy pause -- on November 29, 1990 the U.N. Security Council
adopted Resolution 678. The Soviet Union, still just in existence, voted for
the use of force -- the incorporation in the resolution of the words "all
necessary means". China abstained. For the first time, the
"international community" appeared to act practically unanimously,
and in accordance with the Charter.
Consummation was short-lived, however. On
March 24, 1999, after the breakdown of the Rambouillet negotiations over the
fate of Kosovo and the Kosovars, Operation Allied Force was launched.
This was the start of a 78-day bombing
campaign, which was never sanctioned by a U.N. Security Council resolution.
Resolution 1244 did not endorse the use of force, but sought to deal with its
consequences. The Independent Commission on Kosovo judged the action to have
been "illegal but legitimate". Scholars debated the question whether
there was a new international law of humanitarian intervention, an extension
of the Charter.
The third act in this tragedy was the
blatant and cynical rejection of international law in the campaign against
Afghanistan, following September 11.
It is clear that in resolutions 1368 (2001)
of September 12, 2001, and 1373 (2001) of September 28, 2001 the Security
Council neither endorsed nor authorised the military action, merely noted that
it was taking place, and further noted the allies’ justification of
self-defence.
So I repeat: why the
return to the Security Council? Many scholars of international
relations deny that law, or indeed the United Nations itself, have any
influence whatever on the actions of the great powers.
The recently published and highly
influential book by John L. Mearsheimer of the University of Chicago,
"The Tragedy of Great Power Politics", is a case in point.
DICTATES OF REALISM
In his view: "There is little evidence
that (international institutions including the U.N.) can get great powers to
act contrary to the dictates of realism." Neither Britain nor the United
States has impeccable democratic credentials. Britain has made it clear that
military action could commence without consulting Parliament.
The United States is led by a president whom
many voters believe did not win the presidential election. In both countries,
public opinion is feared by their respective leaders. And it is clear that
international legality, and in particular action through, and authorised by
the United Nations, is highly valued by the public.
Moreover the United Nations, for all its
imperfections, is the only forum in which the less powerful states can make
their voices heard. Not only can they speak out, but the U.N.’s mechanisms,
such as the General Assembly and Security Council, have the capacity on
occasion to restrain the powerful.
International law is produced by and
reflects international politics. The United Nations and its Security Council
are political institutions, in which the most powerful states inevitable call
the shots.
But law also has a life of its own, as Bush
and Blair now find to their discomfort.
