Deakin Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Deakin Law Review |
|
Mirko Bagaric[*] and James McConvill[**]
While the regime of Saddam Hussein was charged with possessing prohibited weapons and may indeed have been perpetuating gross violations of human rights, the development of international legal norms and institutions requires an international response that is consistent with such norms and institutions, and that uses rather than erodes them.[1]
The legality of the United States led invasion of Iraq is much in doubt.[2] The weight of opinion is that the war on Iraq was illegal. This article considers the legality of the war. The authors conclude that the legal arguments in favour of the war are weak. Ultimately, the `Coalition of the Willing’[3] (comprising the US, the United Kingdom and Australia) did not have lawful authority to invade Iraq.[4]
The principal reason given for invading Iraq was to forestall the threat of Saddam Hussein using `Weapons of Mass Destruction’ (WMD) (ie, chemical and/or biological weapons). As a factual matter there was no basis for this fear. There was no firm evidence that Iraq possessed such weapons. Moreover, Iraq had not threatened to use weapons of mass destruction. The unwillingness of Iraq to resort to such weapons was confirmed by subsequent events. The war lasted for approximately three weeks. During this period, US led forces invaded Iraq, bombed much of its infrastructure (military and otherwise) and even specifically targeted Saddam Hussein. It is not possible, literally, to imagine a more desperate situation for Saddam Hussein. Despite this, WMDs were not deployed against a single invading soldier. If the Iraqi leadership did not authorise the use of WMDs in such a context (especially in light of the fact that the US flagged its intentions to invade Iraq many months before ultimately doing so) it logically follows that there is no conceivable situation in which it would have done so. It is no counter that Iraq may have possessed WMD.[5] WMD do not of themselves pose a threat, it is the inclination to use them that is problematic - otherwise the primary strategic objective of the global community would have been be rid the US of its mass of nuclear weapons. Absent the inclination there is no threat. In the case of Iraq there was no such inclination. Even if Iraq had WMD there was no situation in which they would have resorted to using them.[6]
Two important issues emerge in the aftermath of the Iraqi war. The first is whether international law should sanction the use of force to effect a regime change where compelling humanitarian reasons exist. This is discussed in Part Three. We argue that in situations such as Iraq there is no justification for international intervention - the cure is worse than the disease. However, there may be other cases in which force is justified on the basis of humanitarian intervention. We set out the criteria that ought to govern the use of force in such circumstances.
In Part Four we ask where to from here as far as international law is concerned? It has been suggested that the military action in Iraq presents a serious threat to world security.
The [United Nations] system has failed repeatedly to prevent wars in the past half century. But this is the first time that the primary role of the Security Council as guarantor of international peace and security has been openly challenged by two of its permanent members—the United States and the United Kingdom. The outcome of this challenge may determine whether future conflicts will be resolved through lawful multilateral means or unlawful resort to force by individual states. At stake is the future of the U.N. system of collective security established after World War II to protect humanity from a recurrence of that unprecedented carnage.[7]
We argue that the intervention in Iraq was regrettable. However, it is no cause for alarm - at least no more than existed prior to the war. The reason that the war in Iraq occurred, and the US could take action with impunity that resulted in the deaths of many thousands of people, was that the system of international justice was already broken.[8] The concept of international law is no more an illusion following the war than it was prior to the war. In fact, and this is the sole virtue of the war, the war has highlighted the impotent nature of international law - at least so far as the use of force by powerful states is concerned. The US illegally bombed another state into submission, in the process killing a vast amount of people and decimating the infrastructure of Iraq. Yet there will be no sanction against the US. The US will face no reprisal. Moreover, the system is so ineffective that the US will not even need to grapple with the embarrassment of a formal judicial (or other) pronouncement denouncing its actions - it being most unlikely that any party will take the matter to the International Court of Justice. The war in Iraq has illustrated that when important state interests are at stake the golden rule `might is right’ prevails as much in the 21st century as it has at any other time in human history.[9]
The tragedy of the war will be amplified if this message is not heeded and used as a signal for developing processes and principles governing the use of force - ones which have the best possible prospect of reigning in even the world's sole super power- the US. Part Four of this paper is about not bemoaning the adverse affect that the war has had on the current system of regulating the use of force, but suggesting new principles to govern the use of international force.
Three separate justifications were offered for the Iraq war. They were:
| (i) | To prevent the stockpile and use of WMD. |
This is the `official justification’ that was employed by the US. However, two other subsidiary reasons were also advanced – at least in rhetoric by the US president, George W. Bush, and other leading US officials. They were:
| (ii) | To dismantle the link between Iraq and terrorists in the wake of September 11. President Bush in a speech on 1 July 2002 stated that: |
deterrence meant nothing against shadowy terrorist networks with no nation or citizens to defend and could not work when unbalanced dictators with weapons of mass destruction can deliver those weapons on missiles or secretly provide them to terrorist allies. ... If we wait for threats to fully materialize, we will have waited too long'.[10]
| (iii) | To effect a regime change in Iraq and liberate the people of Iraq.[11] |
Prior to considering the soundness of these reasons in greater detail, following below is a brief overview of the relevant international law framework.
The Charter of the United Nations is considered by many international lawyers to be the highest embodiment of international law.[12] The Charter is the closest international law has come to adopting a comprehensive universal system of regulation. Every member of the UN (including the US and Iraq) is a party to its Charter. It is regarded as codifying and superseding laws and customs in existence at the time of its adoption in 1945. The Charter emphasises that peace is the fundamental goal of the UN. The preamble expresses a determination ‘to save succeeding generations from the scourge of war’; ‘to practise tolerance and live together in peace with one another as good neighbours’, ‘to unite our strength to maintain international peace and security’, and to ensure ‘that armed force shall not be used, save in the common interest'. The other more pertinent aspects of the Charter are as follows:
Article 1(1) of the Charter provides that the UN’s central purpose is ‘to bring about by peaceful means and in conformity with principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.[13]
Article 2(3) obligates member states to ‘settle their international disputes by peaceful means’.
Article 2(4) provides 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 manner inconsistent with the Purposes of the United Nations.’
These provisions impose a general prohibition on the use of force by member states to resolve conflicts in international relations. The prohibition is also a peremptory norm of customary international law.[14]
There are two exceptions under the Charter permitting the lawful use of force:
1. The right of individual or collective self-defence in response to an armed attack provided under Article 51 of the Charter.
2. Specific authorisation of the use of force by the Security Council as a last resort to maintain international peace and security under Chapter VII of the Charter.
Pursuant to customary international law it has been suggested that the right to use force extends to pre-emptive self-defence and for the purposes of humanitarian intervention. We now consider whether any of these four principles justified the war in Iraq.
Under Article 51 member states have the ‘inherent right to individual or collective self-defence if an armed attack occurs’. Thus, Article 51 does not create a right to self-defence. Rather it enshrines a right to self-defence which stems from customary international law.[15] In discussing this right the Court in Nicaragua v United States of America noted that whether an attack is lawful `depends on the observance of the criteria of the necessity and the proportionality of the measures taken in self-defence'.[16] The Court further noted that `whether self defence be individual or collective, it can only be exercised in response to an armed attack'.[17] The elements of self defence were more elaborately stipulated in Caroline,[18] where it was accepted that self-defence is limited to cases in which `the necessity of self defence is instant, overwhelming, and leaving no choice of means, and no moment of deliberation'.[19]
Iraq did not launch an armed attack on the US. Hence, it is not possible for the US to justify its assault within the express terms of Article 51. The US did make references to Iraq supposedly supporting or harbouring terrorists or supplying them with arms in the wake of September 11. The evidence in support of this was so flimsy to be literally non-existent.[20] Quiet simply, the attack on the US on September 11 was carried out by the Al-Qa’ida organisation which had close links to the Taliban regime in Afghanistan. This connection was used by US as a basis for taking military action in Afghanistan.[21] However, even if the US could establish that Iraq supported Al-Qa’ida, this would not justify the invasion against Iraq. In Nicaragua the Court stated:
The Court does not believe that the concept of ‘armed attack’ includes not only acts by armed bands where such acts occur on a significant scale but also assistance to rebels in the form of the provision of weapons or logistical or other support.[22]
Under Chapter VII of the Charter, the Security Council is the sole legitimate arbiter of the use of force in international relations outside of the exception of self-defence.[23] The Council is empowered under Article 42 to authorise in response to a ‘threat to the peace, breach of the peace, or act of aggression...such action by air, sea or land forces as may be necessary to maintain or restore international peace and security’. Such authorisation can be taken only after the Council determines that peaceful measures ‘would be inadequate or have proved to be inadequate’.
Decisions of the Council require nine affirmative votes. Further, except in procedural matters, decisions require concurring votes by the five permanent members of the Security Council. Thus, any permanent member (China, France, The Russian Federation, The United Kingdom, and the US) can prevent action being taken by exercising its veto. Given the divergent interests reflected in this membership it is not surprising that the use of force under Chapter VII has rarely been authorised.[24]
The Security Council did not expressly authorise the use of force against Iraq. Prior to the war, the US heavily lobbied Security Council members to gain the requisite numbers. This continued until France and the Russian Federation made unequivocal public statements that they would not support the use of force against Iraq. At one point, the US advanced the argument that a resolution passed by a majority of nine Security Council members would be sufficient to overcome a veto by one or more permanent members or that it would at least comprise a `moral' majority. This argument is clearly fallacious. It ignores 50 years of UN procedure and practice. The only way to legally circumvent a permanent member veto is through a Uniting for Peace resolution by the General Assembly. The hypocrisy in such a suggestion, coming from the US, is nothing short of breathtaking. As has been noted:
Since 1986, the U.S. has used the veto far more frequently than all other permanent members combined, most recently in January 2003 to block otherwise unanimous condemnation of Israel for killing three U.N. staff and destroying a U.N. food warehouse in the Occupied Palestinian Territories.[25]
The fall-back position by the US was that war was implicitly justified pursuant to previous Security Council resolutions against Iraq.
There are numerous Security Council resolutions against Iraq. The key resolutions are as follows:[26]
Resolution 660 (2 August 1990): Condemns the Iraqi invasion of Kuwait and demands Iraq’s immediate and unconditional withdrawal.
Resolution 661 (6 August 1990): Imposes comprehensive sanctions on Iraq and establishes a committee to monitor them.
Resolution 678 (29 November 1990): Authorises UN member states to use 'all necessary means' to bring Iraq into compliance with previous Security Council resolutions regarding its invasion of Kuwait if it failed to comply with them by 15 January 1991.
Resolution 687 (3 April 1991): Declares effective a formal cease-fire ending the Gulf War, establishes the UN Special Commission on Weapons (UNSCOM) to supervise the destruction of proscribed weapons in Iraq, and extends sanctions until compliance with list of conditions, in particular disarmament.
Resolution 1154 (2 March 1998): `Commends the initiative by the Secretary-General to secure commitments from the Government of Iraq on compliance with its obligations under the relevant resolutions' and warns Iraq that non-compliance on the part of Iraq will entail the `severest consequences'.
Resolution 1284 (17 December 1999): Replaces UNSCOM with UNMOVIC, demands Iraqi cooperation regarding prisoners of war, alters the Oil-for-Food Program and allows for suspension of sanctions upon certification of disarmament by UNMOVIC.
Resolution 1441 (8 November 2002): Establishes 'an enhanced inspection regime with the aim of bringing to full and verified completion the disarmament process', demands that Iraq provide an `accurate, full, and complete' declaration of its proscribed weapons programs and recalls that `the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations' and `decides to remain seized of the matter'.[27]
There have been two separate arguments made concerning the reasons that force is authorised pursuant to these resolutions. The first is that the authority to use all necessary force in Resolution 678 can be re-enlivened by a state. The other is that force was authorised by subsequent resolutions, namely 1154 and/or 1441.
Resolution 678 was in response to the Iraqi invasion of Kuwait in 1990. It authorised states to use 'all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area.’ Resolution 660 had the aim of restoring the sovereignty of Kuwait. After Iraq was forced to retreat from Kuwait, Resolution 687 imposed a formal cease-fire. The cease-fire was conditional on Iraq’s acceptance of certain terms. These terms included destruction of all chemical and biological weapons and all ballistic missiles and an agreement not to acquire or develop nuclear weapons and to co-operate with UN weapons inspectors.
As discussed below, although the other resolutions are condemnatory of Iraq, none of them come close to adopting terminology which authorises the use of force. Hence, the main issue is whether Resolution 678 still enabled member states to use ‘all necessary means’ to ensure compliance with subsequent resolutions.
Although Resolution 687 (the cease-fire resolution) was subject to Iraq complying with certain resolutions it was not the case that breach of any or all of those conditions re-authorised force by member states. Resolution 687 effectively remitted further consideration of the matter back to the Security Council. It states that the Security Council:
Decides to remain actively 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 region.
Thus, given that the Security Council did not enliven the terms of resolution 678 and permit all necessary force to be employed against Iraq, there is no basis for declaring that a member state could unilaterally turn the clock back over a decade and attack Iraq.[28]
The counter to the re-enlivenment argument has been eloquently stated by Professor Thomas Franck at proceedings of the American Society of International Law:
By any normal construction drawn from the administrative law of any legal system, what the Security Council has done is occupy the field, in the absence of a direct attack on a member state by Iraq. The Security Council has authorised a combined military operation; has terminated a combined military operation; has established the terms under which various UN agency actions will occur to supervise the cease-fire, to establish the standards with which Iraq must comply; has established the means by which it may be determined whether those standards have been met (and this has been done by a flock of reports by the inspection system); and has engaged in negotiations to secure compliance. After all these actions, to now state that the United Nations has not in fact occupied the field, that there remains under Article 51 or under Resolution 678, which authorised the use of force, which authorisation was terminated in Resolution 687, a collateral total freedom on the part of any UN member to use military force against Iraq at any point that any member considers there to have been a violation of the conditions set forth in Resolution 678, is to make a complete mockery of the entire system.[29]
Thus the language of Resolution 687 places the future approval of force expressly within the mandate of the Security Council acting as a whole and not in the hands of any individual members. Further, in later resolutions (eg Resolution 1154 (1998)) on weapons inspection) the Security Council expressly stated that it alone retained authority to ‘ensure implementation of this resolution and peace and security in the region’.
Some commentators have also suggested that other resolutions that have been adopted after the cessation of the Kuwait conflict authorise the use of force. In this regard the most important resolutions are 1154 and 1441.[30]
Resolutions 1154 and 1441 warn Iraq of the ‘severest consequences’. However, the context in which the phrase is used makes it clear that the resolutions act as a warning to Iraq, as opposed to providing member states with a self-executing authority to use force if Iraq failed to comply with the resolution. In fact, at the passing of Resolution 1441, the US attempted to persuade the Security Council to include an express authorisation of force. It failed.[31]
This language used in these resolutions falls short of the permission necessary to use force. The terminology employed for force is `all necessary means'. This was employed in Resolution 678 and has been used when the Security Council authorised intervention in Rwanda, Bosnia, Somalia and Haiti.[32]
Moreover when interpreting security resolutions one must do so in light of the political and social backdrop against which they are constructed. As was noted by the International Court of Justice in the Namibia Advisory Opinion:
The language of a resolution of the Security Council should be carefully analysed ... having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences.[33]
Quite simply, force had previously been employed against Iraq. A certain terminology was employed authorising this. The previous terminology was uncontroversial in its authorisation of force - almost no one disputed that Resolution 678 allowed force to be used against Iraq. It was foreseeable that the US wanted to use force against Iraq. The Security Council had the opportunity to draft a resolution expressly authorising force. It did not. In fact, the most recent resolution dealing with the issue France, Russia, and China, included a written proviso stating that the resolution did not authorise `automaticity in the use of force' and that any approval of force remained with the Council as a whole.[34]
The UN Charter does not provide legal authority to use force against a perceived threat of imminent attack.[35] As noted above, Article 51 only applies in circumstances where a state is under imminent `armed attack'. However there may perhaps exist a customary international law right of pre-emptive self defence.[36] In the post-Cold War era, the International Court of Justice has not resolved the question of whether the pre-existing customary right of pre-emptive self-defence survives the Charter’s express rejection of that doctrine.
However, a strong argument can be mounted that this right has not been removed by Article 51 - which recognises the `inherent right of self defence'. Article 51, it can be argued, safeguards the right to self-defence - it does not restrict it.[37] As has been noted, Article 51 must be read in light of Article 2(4) which embodies the Charter's principal prohibition of force and which commits members to refrain from the `threat and use of force'.[38] Moreover, a rejection of the notion of pre-emptive self-defence is pragmatically unfeasible. It risks making `sitting ducks' of passive states and giving aggressive states overwhelming military advantages. As has been noted by Wright:
Under the ... conditions of the contemporary technology of destruction, which makes possible the complete obliteration of states with incredible speed from still incredible distances the principle of effectiveness, requiring that agreements be interpreted in accordance with the major purposes and demands projected by the parties, could scarcely be served by requiring states confronted with necessity for defence to assume the posture of sitting ducks.[39]
For the purposes of this paper we will assume that such a right does exist. The next issue concerns identifying the circumstances in which such a right can be exercised. There has been a significant amount of commentary on this issue. Louis Henkin argues that pre-emptive self-defence must be confined to the narrowest circumstances, to situations involving nuclear attacks.[40] In a similar vein, Jennings and Watts argue that while pre-emptive self-defence may be permissible in some circumstances, the doctrine must not be applied expansively: the requirements of proportionality and necessity are probably even more pressing in relation to anticipatory self-defence than they are in other circumstances'[41] While the precise boundaries of pre-emptive self-defence are unclear, one thing that is certain is that the standards governing the circumstances in which the doctrine applies are not wider than those governing actual self-defence - speculative risks necessarily being less serious than certain ones.[42]
Against this background there is not one tenable argument that the US force was justified on the basis of the doctrine of pre-emptery self-defence - not one of the pre-conditions for the use of force was remotely satisfied. The necessity of self-defence was not instant or urgent. Iraq had not indicated that it would attack the US or any other country in relation to whom the US may seek to protect in a measure of collective self-defence.[43] There were clearly other alternatives open to obvert the threat posed by Iraq. In fact there was no credible evidence that Iraq possessed WMD:
The US and UK now seek to justify war on the grounds that Iraq intends to acquire and use weapons of mass destruction against them at an unspecified point in the future. Yet despite advanced intelligence-gathering capabilities, neither country has presented any credible evidence that Iraq still possesses any proscribed weapons, let alone the intent and capacity to use them in an imminent attack. After conducting more than 550 inspections in almost four months, UNMOVIC teams have not uncovered evidence that Iraq maintains either stocks of such weapons or the operational capacity to deploy and deliver them against the U.S. or U.K. Even Iraq’s neighbors have rejected the argument that military intervention from outside powers is necessary under the right of collective self-defense to protect them from an imminent Iraqi threat.[44]
Thus, the US was not justified in using any force against Iraq on the basis of a pre-emptive right of self-defence. Further, in relation to the force used it grossly violated the proportionality requirement. The US offensive could not have been more severe. It led to the complete and total overthrow of the government and the destruction of much of the country's infrastructure.
The absurdity of the claim that the doctrine of pre-emptive self-defence justified the US force is illustrated by the consequences of adopting the case as a precedent for similar uses in the future. Iraq had not indicated an intention to attack any other state. It had not been involved in armed conflict with another state for over a decade. It was not posturing its troops into an aggressive position. At its highest, Iraq might have been making weapons which might have allowed it to launch an offensive against some state at some time in future. In a nutshell, the `US arguments in support of attacking Iraq are based, in essence, on the unilateral right of powerful states to pre-empt even the possibility of future threats from other states, no matter how speculative or remote'.[45]
If self-defence is justified in these circumstances then the future of the entire world is seriously imperilled. For example, there is no question that Pakistan and India would be justified in attacking each other, Taiwan could attack China, and North Korea and Iran would be justified in attacking the US and their allies. If the concept of pre-emptive self-defence was broad enough to justify the attack on Iraq, it would simply be a euphemism for 'preventive war'[46] - a notion which is clearly illegal at international law.[47]
The UN has failed to adequately maintain international peace and security over the past 50 years. Since World War II, the world has witnessed the deaths of 20 million civilians in 250 major conflicts.[48] In light of this, it can be argued that the UN cannot be entrusted with the final ‘say’ in whether military force should be used against Iraq. The failure of the UN can be explained by reference to the following factors: (1) the ability of the Security Council to take action is constrained by what the members of the Security Council will allow and this in turn is dictated by the realities of geopolitics and the pursuit by member states of what they perceive to be in their own interests[49] and (2) the organisational culture of the UN which is characterised by adherence to the principle of state sovereignty and refusal to make value judgments about member states.[50]
However, while recognising that the UN has proved to be an inadequate institution for controlling the international use of force, this cannot be used as a basis for ignoring its legitimate decrees. Inadequate law is better than no law at all. In the same way that private citizens cannot violate unjust laws, the US cannot ignore international law (and the central role of the UN in this process) if it wishes to invoke legal (as opposed to moral) justification for its actions.
Apart from the right to pre-emptive self–defence the only other possible basis for using force on another state without Security Council approval is the so called right of humanitarian intervention. Humanitarian intervention, a recently revived doctrine of international law, is increasingly being advocated by several Western countries and human rights organisations as a way in which international law can respond to gross and systemic violations of human rights by nation states.[51] Although the operation and scope of the doctrine is yet to be clearly settled, the basis of the doctrine is that the international community has the right and duty to use military force to interfere with a state's territorial integrity and political independence (thus undermining state sovereignty) for humanitarian purposes such as stopping egregious violations of human rights (eg cruelty, slavery, slaughter, starvation), without the necessity for Security Council authorisation. In this sense, a recent report of the International Commission on Intervention and State Sovereignty described humanitarian intervention as a paradigm shift involving a move 'from sovereignty as control to sovereignty as responsibility in both internal functions and external duties'.[52] Prior to the invasion of Iraq, the humanitarian intervention doctrine was also recently utilised by some commentators to justify the bombing of Serbia by North Atlantic Treaty Alliance (NATO) without Security Council approval.[53]
As discussed below, the doctrine of humanitarian intervention may have some merit in the context of morality, however, it lacks foundation under international law.[54] It is contrary to the established procedures and principles of the UN Charter and customary international law. As has been noted that `even supporters concede that humanitarian intervention is a moral argument rather than a legal one'.[55] Humanitarian intervention can, in fact, be authorised, but this is only by Security Council if a humanitarian crisis within a State threatens international peace and security.[56]
It may be argued that the rules of customary international law are not static' that Article 2(4) has not frozen international law for all time[57] and that the bombing of Serbia while itself arguably illegal could form the basis of a new rule of international law.[58] However, one event is hardly sufficient to create a norm of conduct (international or otherwise). Moreover, both prior to and following the bombing of Serbia there were, and have been, far more compelling humanitarian disasters upon which the world has failed to take effective actions. Most notable are mass killings that occurred following the withdrawal of US troops from Somalia in 1993, and violence in Rwanda the following year which resulted in the killing of an estimated one million people out of a population of about 7.5 million.[59]
Additionally, there is considerable reason to believe that the humanitarian justification for invading Iraq is, at its highest, an expedient. The people of Iraq generally did not flourish under the leadership of Saddam Hussein, but there are many nations in the world where the citizens are similarly persecuted. This is evident from a comparison of the Country Reports on Human Practices for 2002, published by the US Department of State.[60] In relation to Iraq, the County Report notes:
Under the provisional Constitution of 1968, Iraq claims to be a democratic republic. However, political power has rested exclusively in a harshly repressive one-party apparatus dominated by Saddam Hussein al-Tikriti and members of his extended family. According to the Constitution, the Arab Ba'th Socialist Party governs Iraq through the Revolutionary Command Council (RCC), which exercised both executive and legislative authority. President Saddam Hussein, who was also Prime Minister, Chairman of the RCC, and Secretary General of the Regional Command of the Ba'th Party, therefore wielded absolute decisive power. Hussein and his regime obtained 100 percent of the votes cast in a nondemocratic "referendum" on his presidency held in October that did not include secret ballots, and many credible reports indicated that voters feared possible reprisal for a dissenting vote. The judiciary was not independent, and the President had the ability to override any ruling or refer any case to a secret system of special courts outside the normal judiciary.
Under the RCC and Ba'th party structure, the Tikriti family maintained total effective control of the security forces and the military. The regime's security apparatus included militias attached to the President, the Ba'th Party, and the Interior Ministry. The military and these paramilitary forces often played an internal security role and were central to maintaining the environment of intimidation and fear on which regime power depended. The regime historically made little attempt to acknowledge, investigate, or punish officials or members of the military or security forces accused of human rights abuses; however, in February it admitted that state police were commonly accused of human rights violations. Members of the military and security forces committed widespread, serious, and systematic human rights abuses. In the Kurdish North, party militias under civilian control provided regional security and have committed human rights abuses.
The country has an estimated population of 24 million people. The regime owned all major industries and controlled most of the highly centralized economy, which is based largely on oil production. The Iran-Iraq and Gulf Wars damaged the economy, and the country has been subject to U.N. sanctions since its 1990 invasion of Kuwait. Sanctions ban all exports, except oil sales, under U.N. Security Council Resolution 986 and subsequent resolutions--the "oil-for-food" program...
The regime's human rights record remained extremely poor, and it continued to commit numerous, serious human rights abuses. Citizens did not have the right to change the regime. The regime continued summarily to execute alleged political opponents and leaders of the Shi'a religious community. Reports suggested that persons were executed merely because of their association with an opposition group. The regime continued to be responsible for disappearances and to kill and torture persons suspected of or related to persons suspected of oppositionist politics, economic crimes, military desertion, and a variety of other activities.
Security forces routinely tortured, beat, raped, and otherwise abused detainees. Prison conditions were extremely poor and frequently life threatening. The regime reportedly conducted "prison cleansing" campaigns to kill inmates in order to relieve overcrowding in the prisons. The authorities routinely used arbitrary arrest and detention, prolonged detention, and incommunicado detention, and continued to deny citizens the basic right to due process. The regime granted a much-publicized amnesty in October to all prisoners except those accused of spying for the United States or Israel, but by all accounts prisoner release was not as universal as claimed. This public relations event served mainly to corroborate previous reporting of summary executions, disappearances, torture, and inhuman living conditions within the regime's prison system. Many prisoners remained unaccounted for after the amnesty.
Saddam Hussein and his inner circle of supporters continued to impose arbitrary rule. The regime continued to infringe on citizens' privacy rights. The regime severely restricted freedoms of speech, the press, assembly, association, religion, and movement. The U.N. Special Rapporteur on the situation of human rights in the country issued a report in March detailing ongoing, grievous violations of human rights by the regime. The U.N. Commission on Human Rights and the U.N. General Assembly passed a resolution in November criticizing the regime's suppression of these freedoms. In April the European Parliament published a report condemning the regime's human rights abuses. Nevertheless, human rights abuses remained difficult to document because of the regime's concealment of facts, including its prohibition on the establishment of independent human rights organizations, its persistent refusal to allow visits of human rights monitors, and its continued restrictions designed to prevent dissent. Although in February, the Special Rapporteur was allowed a single, 4-day visit to research abuses in the country for the first time since 1992, time and access were severely limited and strongly controlled by the regime. It has refused to allow a follow-up visit. Past U.N. reporting on the regime's human rights abuses was based almost entirely on interviews with recent emigrants, opposition groups and others that had contacts inside the country, and on published reports from outside the country. Violence and discrimination against women occurred.
The regime has enacted laws affording a variety of protections to women; however, it has been difficult to determine the practical effects of such protections. The regime neglected the health and nutritional needs of children and discriminated against religious minorities and ethnic groups. The regime restricted severely trade union rights, and there were instances of forced labor.[61]
The report is certainly very critical of human rights practices in Iraq.[62] However, other states received similarly bad press. In the following part of the paper, we extract excerpts from US Department of State's Country Reports in relation to four other states. The excerpts are quite lengthy, however are necessary to illustrate the perilous human rights situation that exist in other states. The report on Burma states:
Burma is ruled by a highly authoritarian military regime. In 1962 General Ne Win overthrew the elected civilian government and replaced it with a repressive military government dominated by the majority ethnic group. In 1988 the armed forces brutally suppressed prodemocracy demonstrations, and a junta composed of military officers, called the State Peace and Development Council (SPDC), led by Senior General Than Shwe, took control. Since then the SPDC has ruled by decree. The judiciary was not independent, and there was no effective rule of law.
The regime reinforced its firm military rule with a pervasive security apparatus, the Office of Chief Military Intelligence (OCMI). Control was implemented through surveillance of government employees and private citizens, harassment of political activists, intimidation, arrest, detention, physical abuse, and restrictions on citizens' contacts with foreigners. The SPDC justified its security measures as necessary to maintain order and national unity. Members of the security forces committed numerous, serious human rights abuses.
The country had a population of approximately 50 million. The country was extremely poor; the estimated annual per capita income was approximately $300. Four decades of military rule and mismanagement resulted in widespread poverty, poor health care, and declining educational levels. Primarily an agricultural economy, the country also had substantial mineral, fishing, and timber resources. Extensive state influence over the economy, widespread corruption, and poor infrastructure has led to rapidly deteriorating economic conditions.
The regime's human rights record remained extremely poor, and it continued to commit numerous serious abuses. Citizens did not have the right to change their government. In ethnic minority areas, security forces continued to commit extrajudicial killings and rape, forcibly relocated persons, used forced labor, and conscripted child soldiers. Disappearances continued, and members of the security forces tortured, beat, and otherwise abused prisoners and detainees. Citizens were subjected to arbitrary arrest without appeal. Arrests and detention for expression of dissenting political views occurred on numerous occasions. The SPDC arrested approximately 45 persons, including some NLD members, for political activities during the year; most were released within days. The Government also released approximately 550 political prisoners since talks began with the NLD in 2000. By year's end, an estimated 1,300 political prisoners (including members and supporters of ethnic armed groups) remained in prison. Prison conditions remained harsh and life threatening, although conditions improved in some prisons since the International Committee of the Red Cross (ICRC) was allowed access. The judiciary was not independent.
The SPDC continued to restrict severely freedom of speech, press, assembly, association, and travel. During the year, persons suspected of or charged with prodemocratic political activity were subjected to regular surveillance and occasional harassment. The junta restricted freedom of religion, coercively promoted Buddhism over other religions, and imposed restrictions on religious minorities. The regime's control over the country's Muslim minority continued, although acts of violence against Muslims decreased from last year. The regime regularly infringed on citizens' privacy; security forces continued to monitor citizens' movements and communications systematically, search homes without warrants, and relocate persons forcibly without just compensation or legal recourse. The SPDC also continued to forcibly relocate large ethnic minority populations in order to deprive armed ethnic groups of civilian bases of support. The regime continued to restrict freedom of movement and, in particular, foreign travel by female citizens. On May 6, the regime released opposition leader and National League for Democracy (NLD) General Secretary Aung San Suu Kyi from almost 20 months of house detention and has allowed her to travel within the country since that time. The regime also loosened restrictions on NLD activities and generally allowed Aung San Suu Kyi to meet representatives of foreign governments and international organizations. The regime closely monitored NLD activities at NLD offices as well as the activities of other political parties throughout the country. The junta recognized the NLD as a legal entity; however, it restricted their activities severely through security measures, harassment, and threats. ... Violence and societal discrimination against women remained problems, as did discrimination against religious and ethnic minorities. There were no policies that discriminated against persons with disabilities. The regime continued to restrict worker rights, ban unions, and used forced labor for public works and for the support of military garrisons. Other forced labor, including forced child labor remained a serious problem, despite recent ordinances outlawing the practice. The forced use of citizens as porters by SPDC troops--with attendant mistreatment, illness, and sometimes death--remained a common practice as did recruitment of child soldiers by the SPDC. Trafficking in persons, particularly in women and girls mostly for the purposes of prostitution, remained widespread, despite increased regime efforts to publicize dangers to potential victims.
Ethnic armed groups including the Karen National Union (KNU), the Karenni National Progressive Party (KNPP), and the Shan State Army-South (SSA) reportedly also committed human rights abuses, although on a lesser scale; abuses included killings, rapes, forced labor, and conscripted child soldiers.[63]
The situation for many citizens in Eritrea is equally desperate. The report on Eritrea states:
Eritrea is a one-party state that became independent in 1993, following an internationally monitored referendum in which citizens voted overwhelmingly for independence from Ethiopia. The Eritrean People's Liberation Front (EPLF), which led the 30-year war for independence, has controlled the country since it defeated Ethiopian armed forces in 1991; its leader, Isaias Afwerki, served as the President. The EPLF became the People's Front for Democracy and Justice (PFDJ) and redefined itself as a political party in 1994; it is the sole political party in the country. Elections, which were first postponed 1997, were postponed again in December 2001.... The judiciary formally was independent; however, it was weak and subject to executive interference.
The police were responsible for maintaining internal security, although the Government could call on the armed forces, the reserves, and demobilized soldiers in response to both domestic and external security requirements. These forces were under the full control of, and responsive to, the Government. In 1998 fighting broke out between the armed forces and Ethiopian militia along the border, which led to a 2-year war with Ethiopia. The Government responded to the escalating military conflict by calling up reserves and increasing its armed forces to approximately 300,000 soldiers. In addition to the war with Ethiopia, the army was engaged in a low-intensity conflict with the Eritrean Islamic Jihad (EIJ), a small, Sudan-based insurgent group that has mounted attacks in the north and west since 1993. Some members of the security forces committed serious human rights abuses....
The Government's poor human rights record worsened, and it continued to commit serious abuses. Citizens did not have the ability to change their government, which was controlled completely by the PFDJ. There were some reports, difficult to confirm, that the police occasionally resorted to torture and physical beatings of prisoners, particularly during interrogations, and police severely mistreated army deserters and draft evaders. The Government generally did not permit prison visits by local or international human rights groups. The Government allowed the International Committee of the Red Cross (ICRC) access to Ethiopian civilian detainees and POWs, although all POWs and almost all Ethiopian civilians were released from detention by year's end. Arbitrary arrests and detentions continued to be problems; an unknown number of persons were detained without charge, some incommunicado, because of political opinion, suspected association with the Ethiopian Mengistu regime, radical Islamic elements, or terrorist organizations. The judiciary was weak and subject to executive influence and lacked the resources to provide speedy trials. The use of a special court system limited due process. The Government infringed on the right to privacy. The Government severely restricted freedom of speech and press, including the rights of the religious media. There were limits on freedom of assembly. The Government restricted the freedom of religion. The Government restricted freedom of movement. Violence and societal discrimination against women continued to be problems, and female genital mutilation (FGM) remained widespread despite government efforts to discourage the practice. Jehovah's Witnesses and members of the Kunama ethnic group also faced some government and societal discrimination. The Government restricted workers' rights. There were unconfirmed reports of forced labor. Child labor occurred.[64]
The reports concerning human rights practices in South Arabia and Pakistan - two allies of the US - are only moderately better.
Saudi Arabia is a monarchy without elected representative institutions or political parties. It is ruled by King Fahd bin Abd Al-Aziz Al Saud, a son of King Abd Al-Aziz Al Saud, who unified the country in the early 20th century. A 1992 royal decree reserved for the King exclusive power to name the Crown Prince. Since the death of King Abd Al-Aziz, the King and Crown Prince have been chosen from among his sons. Crown Prince Abdullah has played an increasing role in governance since King Fahd suffered a stroke in 1995. The Government has declared the Islamic holy book the Koran and the Sunna (tradition) of the Prophet Muhammad to be the country's Constitution. The Government bases its legitimacy on governance according to the precepts of a rigorously conservative form of Islam. Neither the Government nor the society in general accepted the concept of separation of religion and state. The Government prohibited the establishment of political parties and suppressed opposition views. ... The judiciary, though subject to influence by government officials, was reportedly becoming slightly more independent.
The Government maintained control of the various security forces. Police and border forces under the Ministry of Interior were responsible for internal security. Also subordinate to the Ministry of Interior were the Mubahith, or internal security force, and the elite special forces. The Committee to Prevent Vice and Promote Virtue, whose agents commonly were known as Mutawwa'in, or religious police, was a semiautonomous agency that enforced adherence to Islamic norms by monitoring public behavior. The Crown Prince controlled the National Guard. The Deputy Prime Minister and Minister of Defense and Aviation, Prince Sultan, was responsible for all the military forces. Members of the security forces committed serious human rights abuses....
The Government's human rights record remained poor; although there were some improvements in a few areas, serious problems remained. Citizens did not have the right or the legal means to change their government. Security forces continued to abuse detainees and prisoners, arbitrarily arrest and detain persons, and hold them in incommunicado detention. Security forces committed torture. In 2001 the Council of Ministers approved a new law regarding punitive measures that would forbid harming detainees and to allow those accused of crimes to hire a lawyer or legal agent. On May 1, the new Saudi Criminal Procedural Law went into effect. Prolonged detention without charge was a problem. Security forces committed such abuses, in contradiction to the law, but with the acquiescence of the Government. The Mutawwa'in continued to intimidate, abuse, and detain citizens and foreigners. Most trials were closed, and defendants usually appeared before judges without legal counsel. The Government infringed on citizens' privacy rights. The Government prohibited or restricted freedom of speech, the press, assembly, association, religion, and movement. However, during the year, the Government continued to tolerate a wider range of debate and criticism in the press concerning domestic issues. Discrimination and violence against women, discrimination against ethnic and religious minorities, and strict limitations on worker rights continued.
The Government viewed its interpretation of Islamic law as its sole source of guidance on human rights and disagreed with internationally accepted definitions of human rights. However, in the past and during the year, the Government initiated limited measures to participate in international human rights activities, such as its welcome in October of the visit of the U.N. Human Rights envoy following the Government's implementation in May of its new bill of rights Criminal Procedure Code, which the Government claimed would address some of its obligations under the Convention Against Torture or Other Cruel, Inhuman, or Degrading Treatment or Punishment.[65]
And finally in relation to Pakistan it is noted:
Pakistan is a federal republic. From a bloodless coup in October 1999 to elections in October, Pakistan was governed by a Provisional Constitutional Order (PCO), which suspended the constitution and parliamentary government. On April 30, President Musharraf held a nationwide referendum to extend his presidency for 5 years, although critics and legal scholars argued that a president cannot be elected by referendum. President Musharraf claimed a 97.5 percent vote in favor of the extension; however, many independent observers cited evidence of systematic fraud and inflated voting figures.... Corruption and inefficiency remained acute, despite reforms initiated by the Musharraf Government to reduce corruption; however, these reforms have had some effect on officials at higher levels of government. The Supreme Court demonstrated a limited degree of independence and the overall credibility of the judiciary remained low...
The Government's human rights record remained poor; although there were some improvements in a few areas, serious problems remained. Citizens participated in national government elections during the year; however, many observers alleged serious flaws in the legal framework for the election. Unlike in previous years, police committed an increased number of extrajudicial killings. There were fewer killings between rival political factions and sectarian groups during the year; however, there was an increase in violence against Christians. Police abused and raped citizens. While the officers responsible for such abuses sometimes were transferred or suspended for their actions, no officer has been convicted and very few have been arrested. In Karachi there were signs of progress in redressing police excesses; however, in general police continued to commit serious abuses with impunity. Prison conditions remained extremely poor and life threatening, and police arbitrarily arrested and detained citizens. During the year, the Government undertook a major effort to curb religious extremism. Five organizations responsible for sectarian killings were banned by year's end, and the Government accelerated a crackdown on members of several extremist religious groups. Several major political leaders remained in exile abroad at year's end. Case backlogs led to long delays in trials, and lengthy pretrial detention was common. The judiciary was subject to executive and other outside influences, corruption, inefficiency, and lack of resources remained problems. The Government has taken steps to control the judiciary and to remove itself from judicial oversight. Some aspects of the Government's implementation of its anticorruption campaign violated due process. By year’s end, two senior Muslim League politicians, Javed Hashmi and Mehtab Abassi were released on bail. The Government infringed on citizens' privacy rights.
The press was able to publish relatively freely; however, several journalists practiced self-censorship, especially on sensitive issues related to the military. Provincial and local governments occasionally arrested journalists and closed newspapers critical of the Government or allegedly accused of printing offensive material. The broadcast media remained a closely controlled government monopoly. Journalists were targets of harassment and violence by individuals and groups. On January 23, Wall Street Journal journalist Daniel Pearl was abducted by terrorists and later killed. During the year, the Government sporadically permitted several large antigovernment demonstrations; however, it prevented other protests and arrested organizers, including for security reasons. The Government imposed some limits on freedom of association, religion, and movement. President Musharraf has spoken out against some of the human rights abuses of the previous government; however, the Government only made minimal progress toward achieving the goals set at conferences devoted to human rights themes that were held during the year.
Significant numbers of women were subjected to violence, rape, and other forms of abuse by spouses and members of society. The Government publicly criticized the practice of "honor killings" but such killings continued throughout the country; however, the Government intervened in two cases of tribal justice and prosecuted the alleged perpetrators. Discrimination against women was widespread, and traditional social and legal constraints generally kept women in a subordinate position in society. Violence against children, as well as child abuse and prostitution, remained serious problems. Female children still lag far behind males in education, health care, and other social indices. Governmental and societal discrimination against religious minorities, particularly Christians and Ahmadis, remained a problem, and the Government failed to take effective measures to counter prevalent public prejudices against religious minorities. Religious and ethnic-based rivalries resulted in numerous killings and civil disturbances, although the number of sectarian attacks against Shi’a professionals declined significantly. Terrorist attacks, particularly against Western and Christian targets, increased significantly. President Musharraf and several cabinet ministers publicly criticized efforts by some clerics to foment hatred and announced a plan to deny the use of madrassahs (Islamic religious schools) for extremist purposes. The Government and employers continued to restrict worker rights significantly. Debt slavery persisted, and bonded labor by both adults and children remained a problem. The use of child labor remained widespread. On August 28, the Government passed the Prevention and Control of Human Trafficking Ordinance; however, trafficking in women and children for the purposes of prostitution and bonded labor was a serious problem.[66]
If the US was sufficiently concerned with the plight of the citizens of Iraq to invade the country and overthrow its leadership, it is evident that it still has much liberating to do. It is almost certain that it will not.[67] The fact that the US does not have plans (at least which are in the public domain) to liberate the citizens of Burma, Eritrea, Pakistan and Saudi Arabia raises strong doubts concerning the genuineness of its humanitarian justification for invading Iraq.
Even though the war was illegal, it may yet be possible that morally it was the right action to take. The moral case for the war is readily made. Saddam Hussein was a brutal dictator who repressed and brutalised much of the Iraqi people and the only way to liberate the people and allow them to experience some degree of human flourishing was to effect a regime change. Absent of US action the Iraqi people would have continued to suffer indefinitely under Hussein’s brutal regime. Moreover, it can be argued that the precedent established by the overthrow of Hussein will provide a motivation for other despots to accord greater rights and freedoms to their citizens.
This raises for discussion the more general point of whether the use of force should be permissible for humanitarian reasons. While there are obvious advantages of a humanitarian intervention principle, there are significant dangers. As has been noted recently:
Violations of human rights are indeed all too common, and if it were permissible to remedy them by external use of force, there would be no law to forbid the use of force by almost any state against any other. Human rights ... will have to be vindicated, and other injustices remedied, by other, peaceful means, not by opening the door to aggression and destroying the principal advance in international law, the outlawing of war and the prohibition of force.[68]
Thus, it is not difficult to see that if the war in Iraq is justified on humanitarian grounds that it may establish a dangerous precedent. If the US is justified in waging war in Iraq on the basis of humanitarian intervention, what is there to stop the US or other nations with the required military capacity from invading other nations on the same basis?
More formally, there are several distinct reasons why humanitarian intervention may be undesirable. The first is that any principle prescribing such intervention is likely to be very open-ended and indeterminate. This stems from the vagaries and uncertainties surrounding the notion of human rights. Despite the dazzling veneer of deontological rights-based theories and their influence on present day moral and legal discourse, it has been noted that, when examined closely such theories are unable to provide persuasive answers to central issues such as: What is the justification for rights? How can we distinguish real from fanciful rights? Which right takes priority in the event of conflicting rights?[69] These conceptual difficulties compound the problem of defining which rights the international community should be concerned to defend: only the basic right to life or should we also be concerned about less important rights, such as the right to property, to vote, to privacy, freedom of association and so on? The broader the principle, the greater scope for interpretative arguments and hence abuse - as is evident from the self-defence argument used by the US in the most recent war against Iraq. Thus one danger of a principle authorising humanitarian intervention is that safeguards cannot be developed that will prevent states from manipulating it to serve their narrow political interests rather than universal humanitarian concerns.
Secondly, there is an inherent contradiction in using force (which invariably results in the killing of people, and hence violation of the most fundamental right of all) in order to protect rights.[70] Thirdly, the lessons of history show that there is little, if any, appetite to provide humanitarian assistance to other states. Thus, any force sanctioned on this basis will often be for an ulterior, self-interested, motive. This is not necessarily a problem - so long as the humanitarian crisis is resolved not the motive that underpinned the intervention. However, impure motives can lead to problems down the track: `protectors' can readily become `exploiters'. Once a state has a foothold in another state, the potential for self-interest to dominate is immense. For example, at the time of writing this paper, the US was `negotiating' with the UN so that it can reap the profits from the sale of Iraqi oil. Ostensibly this is so that it can put the profits back into rebuilding the infrastructure of Iraq (which it destroyed). The UN's will still maintains an `audit role'. However, it is evident that most of the rebuilding contracts will go to US companies. It is likely that indirectly, at the very least, the US will financially benefit from liberating the people of Iraq.
That the world ultimately cares little about the plight of other people is evident from the slow take up in the fight against poverty. The number of people living in extreme poverty in the 1990s - an income of no more than $US1 per day - has ebbed from 1292 million to 1169 million.[71] This is a small decrease, mainly due to improving economies in some parts of Africa, such as Uganda and Sudan. It is not because of an enlargement in the sympathy gland of the first world. The reluctance of the first world to take meaningful measures to accord the most basic rights to food, water, shelter and health care of much of the third world is overwhelming evidence that humanitarian objectives do not rank highly among their foreign policy priorities. Thus, any humanitarian intervention must be regarded with suspicion.
However, an absolute rule preventing the use of force in such circumstances could lead to almost unthinkable tragedies in the future, of the like the world has recently witnessed in Rwanda and Somalia.[72] The horror of such situations urges strongly in favour of humanitarian intervention in extreme circumstances.
The prospect of developing a workable principle for humanitarian intervention is enhanced if one has an acute awareness of the above three dangers. These dangers can only be minimised in several ways. First, one must clearly designate the circumstances in which humanitarian intervention is permitted. This requires a clear articulation of the rights we wish to protect. Secondly, a proportionality requirement must be included to ensure that the cure is not worse than the illness. Finally, rules must be implemented preventing occupying forces from exploiting the other state.
In light of these caveats, the only right which humanitarian intervention should be directed towards protecting is the right to life. Logically, the right to life is the most basic and fundamental of all human rights - non observance of it would render all other human rights devoid of meaning.[73] Every society has some prohibition against taking life,[74] and ‘the intentional taking of human life is ... the offence which society condemns most strongly’.[75] In light of the need for certainty concerning the parameters in which humanitarian intervention is justified and the inherently vague nature of moral rights it is not feasible to extend humanitarian intervention to protection of other rights. Thus, violations of other rights, no matter how widespread or egregious, such as the right to liberty or property, should not be a trigger for intervention. Given that any use of force will invariably result in the loss of life (dictators are not renowned for surrendering meekly) the loss of life must be widespread - in fact catastrophic. It is not possible to put a numerical figure on this. However, clearly it must be in the thousands. By way of example, the executions by the Ugandan Government of Idi Amin of approximately 300,000 people in 1970s would satisfy this requirement.[76] There is no morally legitimate distinction between acts and omissions.[77] Hence, it does not matter whether the loss of life is a result of intentional killing or deliberate failure to provide the essentials of life (food and water) to a portion of the community. Situations akin to the selective food distribution in Ethiopia in 1987 which led to millions of people starving would thus justify humanitarian intervention. Indeed, with starvation continuing to be a massive problem in Ethiopia (with reports late in 2002 of at least 11 million Ethiopian people close to starvation and about 30 million people throughout Africa on the verge of starvation[78]), it is arguable that humanitarian intervention would be justified in Ethiopia now.
To ensure that intervention is not self-defeating, a principle must be adopted such that the number of lives that are likely to be lost as a result of the intervention cannot exceed the number that are likely to be lost if no action is taken. With increasingly sophisticated weaponry and intelligence equipment now being used in modern day combat (as was demonstrated in Iraq) we would argue that, while difficult, a meaningful estimate of the number of lives to be lost as a result of intervention is possible.
In devising an effective principle of humanitarian intervention, an important objective is to prevent (as much as possible) occupying forces profiting from their intervention. Once stationed in another state it is not difficult to argue for on-going occupation on the basis of the on-going need to preserve law and order. What rule will, for example, prevent the US `milking' the Iraqi oil fields?
The only principle which we believe will discourage occupation beyond the cessation of the humanitarian crisis is a requirement for the occupying force to exit immediately upon a new government being installed which must be done within a defined period of the removal of the totalitarian regime.[79] The period should be no more than, say 12 months. To ensure compliance, breach of this provision should enable the citizens of the occupied country to have reciprocal rights of citizenship in relation to the occupying state. Thus, in the case of the Iraqi crisis this would entail that if the US did not exit Iraq within 12 months from the end of the war the citizens of Iraq would be entitled to US citizenship.[80] Many Iraqis may not exercise this right, but the advantage of such a rule is that it is premised on the principal motivation that can lead to abuse of the rule: economic self-interest. While the US may have much to gain economically from overstaying its `welcome' in Iraq, the US is in a far better economic position than Iraq and the citizens of the US are most unlikely to be willing to share their prosperity with the Iraqis.
At this point it is important to ask whether the conditions for humanitarian intervention, based on the principles we have outlined above, were satisfied in the case of Iraq? As we advert to above, obviously not. There was no humanitarian crisis in Iraq. While conditions in Iraq were far from ideal, they were not demonstrably worse than in many other parts of the world. It is evidently not the case that the government of Saddam Hussein was summarily executing or starving thousands of people. Moreover, the level of force used was not proportionate to the suffering inflicted on the Iraqi people by the Hussein regime. There are no confirmed reports of the death toll in Iraq. However, unconfirmed reports suggest that hundreds of civilians were killed, as were thousands of soldiers.[81] To this end, it is fallacious to exclude the deaths of military personnel. Their lives count every bit as much as those of other citizens. Each dead soldier had a family and friends whose quality of life would have been seriously impaired by the death. Further, the US bombed much of the Iraqi infrastructure. At the time of writing this paper, the many citizens of Iraq were still without fresh water and food was scarce. Looting was rampant and health care was very limited.[82] Even if one ignores the number of dead, it is difficult to make a strong argument in favour of the view that the level of flourishing that will be experienced by the average Iraqi will be greater as a result of the war than it would have been otherwise.[83]
Given that there is no legal justification for the war, the next issue is where to go from here in terms of regulating the future use of force. Some commentators foreshadowed that the illegal attack on Iraq significantly undermined the authority of international law and significantly impaired world security.
If an unlawful war is chosen over the rule of international law, vulnerable Iraqi civilians would immediately pay a high price, and the world would become a far more dangerous place. A successful U.N. weapons inspections process would be rejected in favor of disarmament through war—paving the way for global proliferation of weapons of mass destruction. The Security Council’s collective responsibility for maintaining international peace and security would be dismantled—opening the door to the unilateral use of force by states and non-state actors alike. International laws for promoting peace and human rights would be abandoned—without putting into place a more effective framework to bind together a world already riven by conflicts.[84]
Only time will indicate the accuracy of such comments. At this point, though, they seem pretty accurate.
However, in our view such pessimistic predictions are (at least in some respects) unfounded. Viewed more broadly, the war in Iraq has not exposed a fundamental failing with the operation of international law which is likely to act as a precedent to come. The failing has always been there.[85]
What we have seen in Iraq is an illustration of self-interest prevailing over principle, and a reflection of the changed geo-political environment following the end of the Cold War which for the first time in living memory has seen a world totally dominated by a sole military power - the US. Former Judge of the International Court of Justice, C G Weeramantry wrote recently on this:
Never has it occurred before that one single nation has been universally looked upon as the world's leader, the pre-eminent power of the world. Not the Egyptians or the Persians or the Greeks or the Romans, not the Portuguese or the Spanish or the Dutch, not the Germans, the Japanese or anybody else ever had this universal recognition. No nation in history ever had this position, suddenly descending on it, of being the universally acknowledged superpower of the world. Since it is the first time in human history that this has occurred, this throws an awesome responsibility upon that nation of leading the entire world towards that sunlit plateau of peace and justice and prosperity which is the dream of all the nations. The bedrock on which this rests is respect for international law and a banishing from the international arena of the possibility that the powerful may resort to force unilaterally, whatever be the reason for such action. If they claim this right for themselves, all other nations can do the same and we are back internationally to the law of the jungle where might prevails. Each nation would claim to be the arbiter of the justice of its cause and all nations would claim they were acting in furtherance of some higher principle. International law would no longer exist and we would be back in the era of unrestrained real politik.[86]
The US military might is so overwhelming that it can virtually act with impunity. There is no nation (or even collection of nations) that can match its military capabilities. Faced with such a power imbalance, it is not surprising that the US would project itself onto the world in whichever way it saw fit. It is not as if suddenly, as a result of the attack in Iraq, the international law community has been alerted to a gapping hole in the operation and practice of international law. Given the vagueness of international law principles and, more importantly, the absence of any systematic method of enforcement, for all those not afflicted with claustrophobic imaginations it was readily foreseeable that the system of international law could not reign in military action by a state or group of states that enjoyed an overwhelming military advantage over the rest of the world.
It has been suggested that what is new about this situation is the fact that the US was prepared to act in such open defiance of international law. As President Bush declared, `we really don’t need anybody’s permission'.[87] This might be disturbing to some, but at the pragmatic level it is correct. Although the war has only recently ended, enough time has already passed for this prediction to have turned out to be accurate - permission not granted, and no detriment to the US. To the extent that comments such as this confirm that international law is not working, it is not productive to urge that we should be alarmed. The attack in Iraq and the impunity with which the US should be used as a wake up call to prompt the development of new international law and principles that will be more effective in curbing unilateral displays of force. The current mechanisms and processes for controlling powerful states are not working and in light of the US rhetoric concerning Syria and the `Axis of Evil' states (Iraq, Iran and North Korea) is likely to only get worse. Thus, new measures are needed to curb the use of force.
To be pragmatically relevant, these new principles must be developed in light of pre-existing global political and legal realities - states which have entrenched positions of power on the international arena will not readily abdicate them in order to promote ideal universal aspirations such as the flourishing and betterment of all person kind. However, in developing such a framework, a good starting point is a blank canvass. The suggested solution will then involve getting as close to this model in light of existing global realities.
There are several assumptions that our model makes. First, states will continue to exist. There are very powerful arguments for abandoning the notion of state sovereignty. A world without borders would almost certainly be a more human and fairer place. However, despite the notable moves towards convergence that we have witnessed in Europe over the past decade, the overwhelming trend of history shows that groups of people form countries and zealously guard their borders. The next assumption we make is that nations are motivated by self-interest. To the extent that groups of people living in states have collective desires, the strongest common desire is to promote the interests of that group as a whole. Patriotism is alive and well. The main guiding light in so far as states are concerned is self-interest. This remains so today. Self-interest is most easily and most usually measured in resources. Nations have a strong desire to acquire a greater standard of living for their citizens. The third assumption we make is that nations will continue to develop weapons, invariably leading to an imbalance in their military capabilities.[88] The current escalating situation in North Korea is a prime example of this.
In developing principles governing the use of force, the threshold issue is defining the circumstances in which force can be used. This must be done with great precision. In all areas of the law there is a tension between the needs for consistency and flexibility. Either pursued totally can lead to unfairness. Consistency promotes predictability, however, due to the limits of human foresight can lead to unfairness in individual cases. The advantages and disadvantages of flexibility are the reverse. Noting that both ideals have some virtue, legislatures generally draft laws attempting to accommodate both of them. Indeed the development of the common law system has been largely fashioned around these two ideals - the common law being designed to provide predictability - while equity ameliorates the `harshness' of narrow rules and injects flexibility into the system of law.[89] While recognising the merits of both these virtues in particular circumstances, where the stakes are high (and the stakes could not be higher than in the case of war),the consequences of getting it wrong are serious, and also noting that definite evils must weigh more heavily than speculative ones, consistency should be paramount.[90] This entails that the use of force should only be sanctioned in a very narrow range of circumstances, where there is a strong basis for confidence that the benefits outweigh the costs. Thus, it should only be permitted where a state has used force against another state or there is overwhelming evidence to show that a state is posturing itself to inflict an imminent armed assault against another state. The only other circumstance in which force should be sanctioned is in the humanitarian circumstances indicated in Part 3 of this paper.
This still leaves two issues: who decides when these standards apply and what measures should be taken to guard against states that use force outside the established rules? As with all norms, no matter how tightly articulated, there is always scope for interpretation (when, for example, is the evidence sufficient to conclude that an attack is imminent?). This necessarily leaves scope for parochial state interests to play a role in determining when force is `appropriate'. Thus, the role of the decision-maker is crucial. At the moment, it is five permanent members of the Security Council: China, France, the UK, the Russian Federation and the US. There is no reason in principle that these states should occupy such a privileged position. There is no evidence to suggest that officials from these states are any wiser or less impartial than officials from say Switzerland, Finland, Argentina, North Korea, or indeed Australia. Moreover, the current membership of the Security Council, while having divergent interests on certain matters, represent only about 30 per cent of the world's population.[91] The use of force is a drastic step and, depending on the locality in which it occurs, has the potential to polarise many states and thereby risks the escalation of more force. Given the enormity of the step that is involved in sanctioning force and the widespread ramifications that are often entailed, there is no reason that any members of the world community should be excluded from the decision. There is also no principled (as opposed to historical) basis for involving some nations and not others.
Given that each nation should be involved in the process, the next issue is the comparative weight that each nation should have in decisions concerning the use of force. The starting point here is that nation states are inanimate entities. They are comprised of people. Ultimately it is only people that matter and there is not a logical or ethical basis for valuing the interests of one person above the next.[92] This naturally leads to the view that nations should have their views represented in proportion to their population. This means, for example, that China and India combined would carry approximately 30 per cent of the voting rights in relation to decisions concerning the use of force. Given the drastic implications that flow from the use of force a further safeguard also needs to be implemented. Fifty per cent approval is insufficient. This ought to be elevated to be in the order of what company lawyers refer to as a 'special resolution'- that is 75 per cent approval. In terms of the extent of lawful use of force, it should be the immediate use of force to the extent that is necessary to disarm the rogue state to prevent it similarly transgressing in the future.
This model is obviously untenable against the reality of contemporary international law and politics. The members of the Security Council will not abdicate their privileged position, and given their individual veto power it is not feasible to use force to curtail the unlawful actions of any of the members of the Security Council (or their close allies). Implementation of the above model, or something close to this model, could occur if there was a fundamental restructuring of the United Nations or, more probably, a new world `governing’ body was formed, which effectively by-passed the security council and, indeed, the United Nations. States are certainly free to create such a body, however, given the pace at which international law develops this is unlikely to occur for many decades – if ever.[93]
Against the existing background, the most that can be hoped for is a clarification and tightening of the circumstances in which force may be sanctioned. This can be done by a ruling from the International Court Justice.[94] It is also necessary to develop more effective deterrents to the unilateral use of force by dominant states.
In most circumstances the threat of collective force in self-defence is an adequate deterrent. However, this is futile where the aggressor is the dominant military force in the world. It is inconceivable that any nation (or group of nations) would instigate military force against the US - irrespective of whether or not the force was justified at international law.
Military force is not, however, the only harmful measure that can be taken against a state. As noted above all states have an intense desire to flourish economically and thereby elevate the living standards of its citizens. The thing that states value most is the prosperity of its people. Prosperity means resources. A state - no matter how ingenious and creative has a finite amount of natural resources. To expand the prosperity of its citizens beyond this natural limitation requires the acquisition of resources from other states. Economic prosperity requires trade with other states. Moreover, there is often a direct connection between the military capabilities of a nation and its economic situation - this is certainly the situation with the US. The US exports more products than any other nation. A boycott on its products would be financially crippling to the country. It is unlikely that any US government would risk using force in circumstances where it would result in trade sanctions. Accordingly, trade sanctions provide the only possible effective deterrence to future military activities by the US.
In order to constitute an effective deterrent, an international rule imposing sanctions in such circumstances must be clear and certain, without the possibility of exceptions. Studies have shown that the strongest deterrence is not the magnitude of the sanction, but the certainty that it will be applied if an agent engages in wrongdoing.[95] A rule along the following lines, `if a state uses force against another state which is not expressly authorised at international law, in addition to other measures that may be taken against the contravening state, that state will be prevented from participating in international trade for [say] five years from the time at which the use of force expires', would suffice.
Of course, it is highly unlikely that such a principle would be adopted. While there is no theoretical obstacle to this, given the economic dominance of the US and its influence over other countries it would lobby heavily (and most probably successfully) for them to not sign a resolution which would implement this rule. However, if the states of the world are serious about reigning in US unilateral force it is towards this end that they must apply their efforts.
Apart from this, the only other deterrent that is available is to attempt to embarrass or shame the US into observance of rules of international law. Empirical studies have noted that this can be an effective behavioural control - at least to some degree.[96] As noted above, many commentators argued that the US action in Iraq was unlawful. However, this has not shamed the US. The US has pronounced publicly that those commentators are wrong and simply stated that its action was legal. It can `hold a straight face' and do this because of the vagaries of international law and the fact there has been no official declaration regarding the legality of the war. There is unlikely to be one - no party with standing is likely to take the case to the International Court of Justice. The world community will thus never definitively know if the most violent, brazen, devastating (at least in terms of the amount of weapons used) and high profile use of force in at least the last decade was permissible. This is disturbing.
There should be reforms made to enhance and strengthen the International Court of Justice so that it could be more readily utilised.[97] Given the many months of political posturing that occurred prior to the Iraq war, whereby the US made it clear that it was intent on invading Iraq despite the disapproval of many other states (including at least two of the permanent members of the Security Council - France and the Russian Federation), there was no shortage of opportunity for the International Court of Justice to rule on the legality of any proposed force. The fact that it did not, attributable to the fact that states must consent to matters proceeding to the International Court of Justice, shows an alarming shortcoming in the processes underpinning international law.[98] This can be remedied by conferring the International Court Justice with automatic jurisdiction compelling it to adjudicate on matters where military force has been used or is threatened to be used against another state.[99] On many occasions states will be reluctant to participate in such proceedings. This can be overcome by a rule that if parties refuse to engage in the proceedings, the Court will appoint counsel to act on behalf of the state. This will certainly add to the workload of the Court, but would be a worthwhile reform initiative. Immediately on its list would be matters such as whether it is lawful for the US to use force against Iran, Syria and North Korea, as well as dealing with the ongoing dispute between India and Pakistan. However, given what is at stake this is obviously no reason for not hearing such matters.
It is uncertain what effect, if any, a formal declaration of illegality would make in discouraging threats of force. It probably will not be enough in itself to fully end the use of force in the future. However, it will at least dampen the sense of self-righteousness displayed by US officials regarding the war and prevent the US in future from relying on conformity with international law as a basis for subsequent attacks. This will at least lead to greater transparency regarding the basis on which other attacks are launched and highlight the shortcomings of international law. This will be an improvement on the current situation - the first step to remedying a problem is to identify it.
The war in Iraq resulted in the loss of thousands of lives. The war was illegal. However, the Coalition of the Willing in all likelihood will experience no adverse consequences as a result of this. There is no effective recourse for the parties adversely affected by this. Not only is there no recourse, but there is not even an opportunity to test the legitimacy of the exercise. There is no forum for Iraq to test the dispute. This reveals the inherent shortcomings of international law, and raises for issue the legitimacy of international law:
The essence of legality is the principled, predictable, and consistent application of a single standard for the strong and weak alike. Selective manipulation of international law by powerful states undermines its legitimacy, just as domestic order is destroyed when powerful individuals are allowed to act above the law. This is the fundamental distinction between the rule of law to serve the common good of all people and the diktat of force to advance the special interests of a privileged elite.[100]
From a pragmatic perspective, however, the war in Iraq should not cause alarm. History has shown that states ultimately act in their self-interest to the extent that they can do so. It is not unexpected that a nation which enjoys military dominance would ignore legal standards and do as it wished. The fact that it was the US which acted in this way is not a particular criticism of the US. It has behaved no differently to other dominant nations in history. As Kuzminski has argued,`To renounce the UN and other international institutions such as the World Court in favour of our military and economic power is the path of empire and tragedy, so often followed in the past'.[101]
The only constructive manner to approach the fallout from the war is to recognise the existing shortcoming of international law so far as defining the circumstances in which force can be used and deterring powerful states from using force. Ultimately it may not be possible to develop effective legal principles discouraging powerful states from exercising unilateral force. If this is so it simply shows that we have exhausted the limits of international law. We should not, however, accept this conclusion readily. International law is, like all other areas of the law, a creation of human kind, and requires only will and the stroke of a pen to change it. As the debate about the function of international law (including use of force) becomes more complicated due to the increasing complexity of global political and economic structures, this simple proposition should be kept at the forefront of people's minds.
[*] Head of School and Professor of Law, Deakin University.
[**] Lawyer, Allens Arthur Robinson. The views expressed in this article do not represent those of Allens Arthur Robinson.
[1] C G Weeramantry, Armageddon or Brave New World? Reflections on the Hostilities in Iraq (2003) preface.
[2] The weight of academic opinion favours the view that the war is unsupportable at the international law level: `The Administration has made clear that such an attack is based on long-term foreign policy, if not moral reasons, and not on any concept of defending the United States from an imminent military threat': The New York City Bar Committee on International Security Affairs, Fall 2002; `We consider that any future use of force without a new UN Security Council Resolution would constitute a crime against peace or aggressive war in violation of the UN Charter': Center for Constitutional Rights, on behalf of over 1,000 law professors and US legal organisations, January 24, 2002; `Our view is that current Security Council resolutions do not authorise the use of force against Iraq. Such force would require further authorization from the Security Council. At present the United Kingdom is therefore not entitled, in international law, to use force against Iraq': Public Interest Lawyers, January 23, 2003; 'The US Administration has offered several different justifications for a war against Iraq. Yet, in essence, the planned military action comes down to an act of aggression against Iraq, the characterisation of which as a “preventive” war does nothing to alter its illegality under international law': Freiburg Lawyers Declaration, on behalf of over 100 German jurists, February 10, 2003: cited in The Center for Economic and Social Rights Emergency Campaign on Iraq, 'Tearing up the Rules: The illegality of Invading Iraq', March 2003, New York (hereinafter, 'Tearing up the Rules'). See also Hillary Charlesworth, `No this war is illegal', The Age (Melbourne), 19 March 2003. For a contrary view, see Darin Bartram, 'A group of international lawyers: The case for a legal attack', The Australian, 18 March 2003.
[3] C W Weeramantry, a Judge of the International Court of Justice from 1991 to 2000 (including as Vice-President from 1997 to 2000), in a book released following the 2003 invasion of Iraq, described the 'Coalition of the Willing' as 'a coalition of those who are willing to disregard international law and the UN Charter'. See Weeramantry, above n 1, 26.
[4] For the purpose of this paper, we refer to the US as being the state that was at war with Iraq. While the UK and to a lesser extent Australia, played a role in the war, it is the US that initiated the war and provided the vast majority of troops and military arsenal.
[5] Although at the time of writing this paper, no such weapons had been found.
[6] The Iraqi regime used chemical weapons against the Kurdish population in 1988 and against Iranian armed forces between 1983 and 1988: Human Rights Watch, International Humanitarian Law Issues in a Potential War in Iraq (2003) 3. However, this was over a decade ago and the evidence is that the regime has `rehabilitated' since that time. At some point, events must be viewed as being of historical relevance only, otherwise arguments could be made that given that use by the US of nuclear weapons in WWII against Japan that it is likely to do so again.
[7] See Tearing up the Rules, above n 2.
[8] For a discussion of the deficiencies in the system of international justice, due to mainly to the lack of enforcement and compliance, see Louis Henken et al, International Law: Cases and Materials (American Casebook Series) (1982) 16; Ivan Anthony Shearer, Starke's International Law (11th ed, 1994) Ch 1; Malcolm N Shaw, International Law (4th ed, 1997) 10-12.
[9] See Weeramentary, above n 1, 107.
[10] See Anthony Dworkin, Iraq and the Bush Doctrine of Pre-Emptive Self-Defence (August 20, 2002), 2.
[11] For example,
'This is a very evil man [Saddam Hussein] who, left to his own devices, will wreak havoc against his own population, his neighbors and, if he gets weapons of mass destruction and the means to deliver them, on all of us. It is a very powerful moral case for regime change...If Saddam Hussein is left in power, doing the things that he’s doing now, this is a threat that will emerge, and emerge in a very big way:'
Condoleeza Rice, US National Security Adviser, Interview with BBC, reported at <http://news.bbc.co.uk/1/hi/world/americas/2193426.stm> (August 15, 2002) (emphasis added).
[12] See Weeramantry, above n 1, Ch 2.
[13] Pursuant to the Vienna Convention on the Law of Treaties (1969) Article 31, The other provisions of the Charter must be interpreted in accordance with this aim: `A treaty must be interpreted in accordance with its objects and purposes, including its preamble’.
[14] The International Court of Justice has described Article 2(4) as a peremptory norm of international law, from which States cannot derogate: Nicaragua v United States [1986] ICJ Reports 14, [190].
[15] See generally Timothy McCormack, 'The Use of Force' in Sam Blay et al (eds), Public International Law- An Australian Perspective (1997).
[16] Further, it should be noted that even though a state may defend itself through the unilateral use of retaliatory force without the a Security Council resolution, the right of self-defence is subject to the control of the of the Security Council. Article 51 provides:
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, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
[17] The International Court of Justice in the Nuclear Weapons Case. Available on-line at <http://www.law.nyu.edu/kingsburyb/fall01/intl_law/unit2/nuclearweapons.html>
also emphasised that lawful self-defence must be both proportional to the armed attack and necessary to respond to it.
[18] The Caroline (exchange of diplomatic notes between Great Britain and the US, 1842).
[19] The Caroline Criteria dates back to 1837. During a rebellion against British rule in Canada, British troops attached a ship (the Caroline) which was being used by private people in the United States to ferry supplies to the rebels. Following diplomatic correspondence between the US Secretary of State, Daniel Webster, and the British Foreign Office minister, Lord Ashburton, the above test was agreed upon as dictating the permissible use of force in self-defence.
[20] Adrian Kuzminski, Coastal Convergence Society, 'US Prepared to Violate International Law'(1 February 2003).
[21] See further Public Interest Lawyers on Behalf of Peacerights, Opinion Concerning the Legality of Use of Froce Against Iraq, 10 September 2002 (hereinafter, 'Opinion Concerning Legality of Use of Force Against Iraq').
[22] Nicaragua v United States [1986] ICJ Reports 14, [195].
[23] See Weeramantry, above n 1, Chapters 5 and 6; Shaw, above n 8, 841-844; Shearer, above n 7, Chapter 18.
[24] Examples of actions authorised by the Security Council under Chapter VII are the action in Korea in the 1950s and Operation Desert Storm against Iraq in 1991. For other more recent examples, see Jules Lobel and Michael Ratner, ‘Bypassing the Security Council: Ambiguous Authorizations to use Force, Cease-fires and the Iraqi Inspection Regime’ [1999] American Journal of International Law 124, 127. The more recent instances they discuss are use of ‘all necessary means’ to liberate Kuwait; SC Res 794, authorising ‘all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia’, SC Res 940, authorising ‘all necessary means to facilitate the departure from Haiti of the military leadership’, SC Res 929, authorising France to use ‘all necessary means’ to protect civilians in Rwanda, SC Res 770, authorising states to take ‘all measures necessary’ to facilitate humanitarian assistance and enforce the no-fly zone in Bosnia. The above commentary and references are from: Opinion Concerning the Legality of Use of Force Against Iraq, above n 21.
[25] See Tearing Up the Rules, above n 2, 11.
[26] See Campaign against Sanctions on Iraq (CASI), UN Security Council resolutions relating to Iraq: <http://www.casi.org.uk/info/scriraq.html> .
[27] See Patrick McLaren, 'Settling the Score with Saddam: Resolution 1441 and Parallel Justifications for the Use of Force against Iraq' (2003) 13 Duke Journal of Comparative and International Law 233 (Lexis); Bill Campbell and Chris Moraitis, 'Memorandum of Advice to the Commonwealth Government on the Use of Force against Iraq' (2003) 4 Melbourne Journal of International Law 178.
[28] See, for example, George Williams and Devika Hovell, 'Advice to Hon Simon Crean MP on the Use of Force Against Iraq' (2003) 4 Melbourne Journal of International Law 183.
[29] As cited in Opinion Concerning Legality of Use of Force Against Iraq, above n 21.
[30] See Bartram et al, above n 3.
[31] See Opinion Concerning Legality of Use of Force Against Iraq, above n 21.
[32] Ibid
[33] (1971) ICJ Reports 15, [53]. See further Opinion Concerning Legality of Use of Force Against Iraq, above n 21.
[34] Press Release, United Nations (November 8, 2002). Available on-line at <http://www.un.org/News/press/docs/2002/ SC7564.doc.htm>
[35] See, for example, Christopher Greenwood, 'International Law and the Pre-Emptive Use of Force: Afghanistan, Al-Qaida, and Iraq' (2003) 4 San Diego International Law Journal 7. Greenwood argues that the right of pre-emptive self-defence is not subject to the prior authorisation of the UN Security Council, but rather is an aspect of the sovereign of the State (albeit subject to the limitations imposed by international law).
[36] See Christopher Posteraro, 'Intervention in Iraq: Towards a Doctrine of Anticipatory Counter-Terrorism, Counter-Proliferation Intervention' (2002) 15 Florida Journal of International Law 151; McLaren, above n 27, [*269]; Robert J Beck and Anthony C Arend, 'International Law and Forcible State Response to Terrorism' (1994) 12 Wisconsin International Law Journal 153, 213. Anthony C Clark and Robert J Beck, International Law and the Use of Force (1993) 72. For a succinct discussion of the operation of customary international law, see Paul L Szasz, 'General Law-Making Processes' in Christopher C Joyner (ed), The United Nations and International Law (1997) 30.
[37] See D W Bowett, Self-Defense in International Law (1958) 187-92.
[38] See J Wright, `The Soviet Cuban Quarantine and Self-Defence' (1963) 57 American Journal of International Law 597.
[39] Wright, ibid, 601. See also US President George W Bush's State of the Union Address, 28 January 2003:
Some have said that we must not act until the threat is imminent. Since when have terrorists and
tyrants announced their intentions, politely putting us on notice before they strike. If this threat is
permitted to fully and suddenly emerge, all actions, all words and all recommendations would come
too late.
[40] Louis Henkin, How Nations Behave (2nd ed, 1979) 144.
[41] Sir Robert Jennings and Sir Arthur Watts (eds) Oppenheim's International Law (9th ed, 1991) 41-42. See also Antonio Casee, International Law (2001) 311.
[42] For a range of views concerning the scope of pre-emptive self-defence, see Dworkin, above n 10.
[43] See Williams and Hovell, above n 28, 187; McLaren, above n 27, [*275]-[*286].
[44] See Tearing up the Rules, above n 2.
[45] Ibid.
[46] As was foreshadowed by Henkin, above n 40, 141.
[47] See Ben Clarke, 'Can the Gulf War (2) be justified under International Law?' (April 2003) (available on-line via Findlaw: <http;//www.findlaw.com.au/articles/default.asp?task=read&id=8418>:
If the use of force by pre-emptive strike were permissible to deal with perceived or even actual threats of armed attack by states or terrorists groups acting within states, military conflict could escalate dramatically. Pakistan and India, China and Taiwan, North and South Korea, Iran and Israel would all have legitimate grounds to attack each other.
The concept of 'preventative war' was condemned by the Nuremberg Tribunal in 1946 and abolished by the UN Charter. In 1978, the US mobilised the Security Council to condemn Vietnam’s invasion of Cambodia and overthrow of the violently repressive Khmer Rouge regime, terming it a breach of the Charter and an act of aggression in violation of international law. In 1981 the Security Council unanimously condemned Israel’s preventive attack against an Iraqi nuclear plant as a ‘clear violation of the Charter of the UN and the norms of international conduct’((resolution 487/1991)): See Tearing up the Rules, above n 2, 7-8.
[48] See Tearing up the Rules, above n 2.
[49] See Weeramantry, above n 1, Chapters 5 and 6.
[50] See for example, Shaw, above n 8, 10-12.
[51] See James McConvill and Darryl Smith, 'Of War Crimes and Humanitarian Intervention' (2000) 25 Alternative Law Journal 177; Laura W Reed and Carl Kaysan (eds), Emerging Norms of Justified Intervention (1993); Stanley Hoffman, The Ethics and Politics of Humanitarian Intervention (1996).
[52] See 'The Responsibility to Protect', Report of the International Commission on Intervention and State Sovereignty (2001) ch 2.14. See also Posteraro, above n 36, [*199] who explains how recent events has seen humanitarian intervention be transformed 'from illegal violation of state sovereignty to a developing customary norm of international law'.
[53] For an overview of the debate in this regard, see Andrew Field, `The Legality of Humanitarian Intervention and the Use of Force in the Absence of United Nations Authority' [2000] MonashULawRw 14; (2000) 26 Monash University Law Review 339; also N J Wheeler, 'Legitimating Humanitarian Intervention: Principles and Procedures' [2001] MelbJlIntLaw 21; (2001) 2 Melbourne Journal of International Law 550.
[54] See, however, Jean Pierre Fonteyne, 'The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity under the UN Charter' (1974) 4 California Western International Law Journal 203.
[55] See Tearing up the Rules, above n 21 8.
[56] The Security Council did consider military intervention in Rwanda but was blocked repeatedly by its permanent members, including the US, the UK, and France. See Field, above n 53, 355-6.
[57] Anthony D'Amato, `Trashing Customary International Law' (1987) 81 American Journal of International Law 101, 104.
[58] See generally Posteraro, above n 36.
[59] For an overview of these events, see Field, above n 53, 356.
[60] The reports were published on 31 March 2003.
[61] US Department of State, Country Report on Iraq on Human Practices for the year 2002 (published 2003).
[62] For an interesting discussion of the plight of the Iraqi people and the nature of Iraqi society, see also Joseph Braude, The New Iraq (2003).
[63] US Department of State, Country Report on Burma on Human Practices for the year 2002 (published 2003).
[64] US Department of State, Country Report on Eritrea on Human Practices for the year 2002 (published 2003).
[65] US Department of State, Country Report on Saudi Arabia Human Practices for the year 2002 (published 2003).
[66] US Department of State, Country Report on Pakistan on Human Practices for the year 2002 (published 2003).
[67] See note Weeramantry, above n 1, 30 discussing how on 9 April 2003 the US warned other countries which it accused of pursuing a weapons of mass destruction program (namely Iran, Syria and North Korea) to 'draw the appropriate lesson from Iraq'.
[68] Henkin, above n 40, 145.
[69] Mirko Bagaric, `In Defence of a Utilitarian Theory of Punishment: Punishing the Innocent the Compatibility of Utilitarianism and Rights' (1999) 24 Australian Journal of Legal Philosophy 95; Mirko Bagaric, Sentencing and Punishment: A Rational Approach (2001) Ch 4.
[70] See generally Weeramantry, above n 1, in the context of discussing the recent hostilities in Iraq.
[71] World Bank, Development Indicators, as cited in Tim Colebatch, `We're a reluctant combatant in the war against world poverty', The Age (Melbourne), 22 April 2003, 15. One of the clearest cases of human rights hypocrisy stems from the fact that US was aware of, but ignored, the human rights abuses perpetrated by Saddam Hussein during the 1980s when the maintenance of his regime suited US interests.
[72] See further Michael J Bazyler, `Re-examining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia (1987) 23 Stanford Journal of International Law 547, who develops five criteria for humanitarian intervention.
[73] See further, Manfred Nowak, `UN Covenant on Civil and Political Rights: CCPR Commentary' (1993) 104; Sarah Joseph, ‘The Right to Life’ in (eds) David Harris and Sarah Joseph, The International Covenant on Civil and Political Rights and United Kingdom Law, (1995) 155.
[74] Peter Singer, Practical Ethics (1993) 85.
[75] The House of Lords, Report of the Select Committee on Medical Ethics (1994) vol. 1, 13.
[76] See Bazyler, above n 72, 590-92; Field, above n 53, 351.
[77] See Kumar Amarasakera and Mirko Bagaric, Euthanasia, Morality and the Law (2002) Ch 8.
[78] See <http://lists.sn.apc.org/pipermail/pol.ethiopia/2002-December/002685.html>
[79] For a discussion of the present humanitarian obligations of an occupying force, see : Human Rights Watch, International Humanitarian Law Issues in a Potential War in Iraq (2003) 9-10; Weeramantry, above n 1, Ch 9.
[80] Where more than one state is the occupying force then the citizens of the occupied country would obtain citizenship rights against all the states which occupy it.
[81] See, for example, the 'Iraq Body Count' website ( <http://www.iraqbodycount.net/bodycount> ) for updated statistics on civilian deaths.
[82] See CARE's Iraq humanitarian update. Available on-line at: <http://www.careinternational.org.uk/cgi-bin/display_mediarelease.cgi?mr_id=222>
[83] See also, Barbara Stocking, `Iraqis' Suffering can be Made Worse', International Herald Tribune,. 27 December 2002.
[84] See Tearing up the Rules, above n 2.
[85] Professor Greg Craven, Dean of University of Notre Dame Law School, in the context of the Iraq war recently described international law as being a 'vague and malleable' system that lacks 'clear commands and penalties': see Clarke, above n 47. See also Oscar Scachter, 'The UN Legal Order: An Overview' in Joyner, above n 36, 13-19.
[86] See Weeramantry, above n 1, 6.
[87] See Tearing up the Rules, above n 2.
[88] See Weeramantry, above n 1, 2.
[89] See, for example, Samantha Hepburn, Principles of Equity and Trusts (1st ed, 1997) Ch 3.
[90] See Weeramantry, above n 1, 27:
[Another] principle strongly violated by current action [that is, use of force in Iraq] is the principle of consistency. If international law is to have any credibility the principle it applies to country A, must also apply to country B. International action to enforce the law against weapons of mass destruction should be applied equally and consistently to every State which possesses or is suspected of possessing such weapons. One principle cannot be applied to Iraq, another to North Korea and Israel and another principle to itself.
[91] See Shaw, above n 8, 841-844 for a discussion of the role and composition of the Security Council.
[92] See Mirko Bagaric, `A Utilitarian Argument: laying the foundation for a coherent system of law' (2002) 10 Otago Law Review (NZ) 163.
[93] However, there are certainly some signs that states are now more than ever willing to ignore the `mandates' of the UN. The action in Iraq is obviously one example of this. Perhaps what is more even more illuminating is the preparedness of some world leaders to publicly trumpet the virtues of unilateralism or `coalitions of the willing' as an alternative to UN action. The Foreign Minister, Alexander Downer, has stated that multilateralism is `a synonym for an ineffective and unfocused policy involving internationalism of the lowest common denominator' and labeled multilateral organisations `behemoths': Michelle Grattan, `The World According to Howard', 2 July 2003, The Age, 11. This has led some to speculate that that two international security systems may soon operate - the `embattled UN' and 'task focused coalitions of the willing': ibid. Downer has expressly noted that `the notion of sovereignty is no longer an inviolable principle in international affairs' and that Australia would continue to join coalitions of the willing, with or without authority of the UN. This has prompted commentators to seriously question the relevance of the UN, thereby necessarily inviting speculation about alternative international institutions: Tony Parkinson, `Urge to Intervene puts UN on Notice over Critical Reform' The Age, 28 June 2003, 15.
[94] See Weeramantry, above n 1, 145-6.
[95] Mirko Bagaric, Punishment and Sentencing: A Rational Approach, above n 59, Ch 6.
[96] See generally Tom Tyler, Why People Obey the Law (1990).
[97] Presently, while the International Court of Justice has jurisdiction to provide advisory opinions, in all cases the jurisdiction of the Court can only be invoked by consent of the parties to the dispute: see Article 36 of the Statute of the International Court of Justice.
[98] See Andrew Coleman, 'The International Court of Justice and Highly Political Matters' [2003] MelbJlIntLaw 14; (2003) 4 Melbourne Journal of International Law 29, who observes that the concern about the Court's ability to valid contribution to the resolution of 'political' matters (where the national interests of nation states are threatened) is due to an obvious problem- its basis of consensual jurisdiction and the reluctance (and at times recalcitrance) of states to comply with the Court's decisions. At 36, Coleman notes that '[the] phenomenon of consensual jurisdiction is a direct result of national sovereignty'. For a discussion of the relationship between consensual jurisdiction and state sovereignty, see Renata Szafarz, The Compulsory Jurisdiction of the International Court of Justice (1993).
[99] A useful analogy is the operation of the takeover laws in Australia (under Ch 6 of the Corporations Act 2001 (Cth)) which provides (in summary) that the particular rules and procedures relating to takeover offers apply as soon as any form of proposal for a takeover is announced- even if a company director is simply discussing a potential takeover with the press.
[100] Tearing up the Rules, above n 2.
[101] Kuzminski, above n 20.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/DeakinLawRw/2003/7.html