War on the UNand international law
THE Webster’s dictionary defines the word ‘war’ as ‘a state of hostility, conflict or antagonism.’ It defines the verb ‘wage’ as ‘to engage in or carry on.’ In its recent actions against Iraq, the United States has not only waged war on Iraq, it is also waging war against the United Nations and against the global rule of international law.
Across the street from the headquarters of the United Nations, in the Ralph Bunche peace park, the words of the prophet Isaiah are carved onto a marble wall. ‘They shall beat their swords into ploughshares and their spears into pruning hooks. Nation shall not lift up sword against nation. Neither shall they learn war any more.’ These words reflect the most serious aspirations of the United Nations whose Charter outlaws the use of force (or even the threat to use force) by states in their relations with one another.
In the 50 years since the creation of the UN, however, force has become the order of the day, all too often provoking rather than preventing increasingly vicious, internal-armed conflicts all over the globe. The UN Charter asserts the principle, right not might. The use of force in international relations reflects a different reality, however, in which might is right.
The UN Charter establishes basic principles for peaceful co-existence among nation states. These interdependent and interrelated core principles are:
1. State Sovereignty. Nation states (and their peoples) are sovereign and equal. Their territorial integrity must be respected by all. There can be no interference in matters within their domestic jurisdiction. This is the meaning and essence of sovereignty. State sovereignty, which is the reflection of the sovereignty of its people, must therefore be respected by all, within the community of civilized nations.
2. Prohibition of Force. In return for respect of their sovereignty, each member state of the UN accepts the prohibition of the use of force against any other state or its people. Article 2 (4) of the UN Charter contains this fundamental obligation of membership of the UN: ‘All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of a state, or in any manner inconsistent with the purposes of the UN.’
The UN Charter permits an exception to the prohibition against use of force only in the following cases: (a) Individual and collective self-defence. (b) Force used by the UN, as authorized under Chapter VII of the UN Charter. (c) Force which is not inconsistent with the purposes of the UN.
3. The UN as the main instrument of collective security. Chapter VI and Chapter VII of the UN Charter lay down detailed rules under which the UN may collectively intervene in the affairs of another state. These, it must be stressed, are collective UN interventions, taken pursuant to collective UN decisions made in accordance with the procedures established by the UN Charter.
The relevant provisions of the UN Charter are contained in Chapters VI and VII which deal, respectively, with ‘Peaceful settlement of disputes’ and ‘Actions taken regarding the threat or breach of international peace or acts of aggression.’ Together, the two chapters outlaw the use of ‘force’ except in those circumstances permitted under Chapter VII. ‘Force’ is defined, in the UN Charter, as ‘all types of coercion: economic, political and psychological as well as physical.’ ‘Direct’ as well as ‘indirect force’ (e.g., by providing arms, or allowing one’s territory to be used by others who are employing force) are prohibited. So, too, is the ‘threat’ to use force. Also prohibited is ‘intervention’ which is defined as ‘dictatorial interference in the affairs of another state.’ Force is prohibited in all circumstances other than the exceptions detailed above.
Self-Defence under the UN Charter: The Charter clearly seeks to limit the use of force in self-defence to situations where an armed attack has occurred or is imminent. Recourse to peaceful means of dispute settlement must first be made. The Charter recognizes the individual and collective right of self-defence as an ‘inherent right’ of states, but seeks to limit the use of force by states and to encourage, instead, dispute settlement activities or, if necessary, interventions by the UN as a collective action. The Charter thus clearly seeks to discourage unilateral actions by individual states or groups of states. Such a central role to UN collective actions was deliberately assigned by the Charter, because in the words of Oscar Schachter (a reputed international law expert), ‘A world in which power and self-interest alone are expected to restrain force, would not be a safer world.’ Hence, the Charter’s reliance on the principles set out in Chapters VI and VII of the Charter.
Peaceful settlement of disputes by the UN and collective UN actions: The Charter clearly reflects the view that individual or collective self-help measures, outside the framework of international institutions or judicial proceedings, might contribute to further anarchy. Accordingly, Chapter VI of the UN Charter promotes and prescribes various peaceful dispute settlement procedures and mechanisms which states and the UN must undertake, as a precondition, before force is used to resolve conflict. If such attempts to settle the dispute peacefully have failed, then Chapter VII of the Charter comes into play and the Security Council must determine whether the existing conflict constitutes a ‘threat or breach of international peace and security or an act of aggression.’ If the conflict does not constitute such a threat, breach or act of aggression, the UN has no power to intervene.
If the conflict does constitute such a threat, breach or act of aggression, the Security Council shall decide what measures it should take to maintain or restore international peace and security. These measures include ‘preventive’ and ‘interim’ measures; severance of diplomatic relations, complete or partial interruption of means of communications or of economic relations, and economic sanctions. Should such non-force measures prove to be inadequate, or should the Security Council consider that they would be inadequate, then and only then the Security Council may take such action by UN forces as may be necessary to maintain or restore the peace. The inherent right of individual and collective self-defence, if an armed attack occurs, is reaffirmed by Chapter VII but any measures of force employed in exercise of such self-defence must be reported to the Security Council.
In sum, the UN Charter favours peaceful methods of settling disputes and limits use of force and armed interventions to situations which constitute a threat or breach of international peace and security or an act of aggression. In such situations as well, before using force, the Security Council should adopt an approach of using a range of escalating measures of intervention. Force is used only as a last resort. But threat of use of force by the UN is intended to provide the impetus for negotiations and peaceful settlement of disputes.
It is clear that the recent military action by the US in Iraq flouts the above Charter principles regarding state sovereignty and prohibition of the use of force. Thus, the only justification that the US could offer is that its action were an exercise of collective security of the UN under Chapter VII. For this to be so, the Security Council would need to have passed a resolution authorizing the use of force against Iraq. Such a resolution authored by the US was indeed pending before the Security Council but could not obtain the votes necessary for its passage. Moreover, even if such votes had been obtained, the resolution would have to pass the gauntlet of a veto by one or more of the permanent members of the Security Council. This is procedure prescribed by the UN Charter.
It may be recalled here that this is the very procedure that the US strongly supported when the UN Charter was being negotiated and drafted. The US claims that there was a ‘breakdown’ of the UN. This is an entirely self-serving and opportunistic characterization. The UN had not broken down. It was merely following UN Charter procedures which the US had been instrumental in putting in place at the very inception of the United Nations. The US did not allow its resolution to be brought to vote, knowing it did not have the requisite support. It was unable to secure the decision it wanted from the Security Council by virtue of not being able to secure the necessary votes. But that hardly constitutes a breakdown of the Security Council or a meltdown of the United Nations and its mandate regarding international peace and security.
It is ironic therefore, that having flouted the UN Charter principles, and declined to follow UN Charter procedures, the US subsequently has tried to argue the legality of its use of force on the basis of the supposed authority of a resolution of the Security Council. The legislative history, and specific statements of member states who voted for that resolution, makes it clear beyond doubt that they were not voting for a resolution authorizing force. Moreover, if the US really did believe they had the authority to use force under such resolution, why were they pursuing a further resolution? In waging war on Iraq, the US is waging war on the Charter, principles and law of the UN.
Moreover, this is not merely a war of rebellion by disobedience of UN Charter principles and law. The US is also attempting to unilaterally demolish such principles and law and replace them with principles of ‘anticipatory self-defence’ and ‘pre-emptive strike’. Those concepts promote unprincipled lawlessness and reverse more than 50 years of international consensus around the principle, right not might. They bring back Darwinism at its worst and the Dark Ages of might is right. We are witnessing the beating of ploughshares into swords and of pruning hooks into spears! We are witnessing a grotesque spectacle of a so-called liberation of Iraq by annihilation and conquest.
United States’ use of force in Iraq and UN mandates: Where does all of this leave the United Nations? Clearly, the political functions of the UN are under heaviest siege. It has been unable to prevent the invasion and occupation of Iraq. Except for some diplomatic, and legally impeccable remarks by the UN Secretary General to the UN Human Rights Commission, the UN has failed to be even implicitly critical of the US for its flouting of international law. Formal censure seems extremely unlikely. But what of UN mandates other than peace keeping? First, there are several UN mandates specifically related to Iraq and most of these stem from resolutions of the Security Council. In addition, there are mandates related to Iraq (and indeed to all countries) that flow directly from the UN Charter itself.
Regarding mandates arising from Resolutions or Decisions of UN organs (notably the Security Council):
* There are some mandates which are time-bound (like the oil-for-food-programme) which will end unless extended by the Security Council;
* There are mandates which have become inapplicable because of changes to the parties (like the 661 Sanctions Committee, because the government against whom the sanctions were directed is no longer in existence);
* There are mandates whose fulfillment may have become impossible due to changed circumstances (like that of UNIKOM regarding the demilitarized zone which has become militarized by the presence of the Coalition);
* There are mandates which will require revision or change (like that of the UN Special Rapporteur on Iraq of the UN Human Rights Commission. Such mandates will lack credibility unless the Rapporteur’s mandate covers all alleged human rights violations, including those by the Coalition Forces.
Three of the existing mandates regarding Iraq raise issues of special complexity and concern:
* UNMOVIC’s mandate of ‘disarmament of weapons of mass destruction’ must continue to be conducted by the UN (with the safety of the inspectors guaranteed by the Occupying Administration) and cannot be left to the Coalition Forces’ military investigations, as is being asserted by the US. But ironically, while such Iraqi weapons are yet to be found, the results of the use of weapons of mass and indiscriminate destruction by the Coalition Forces are ubiquitously evident in Iraq.
* UNCC, the Claims Commission is not presently mandated to deal with claims that have arisen over the past weeks. Naturally, such claims could not have been envisaged or mandated at the time when the UNCC was created. But will double standards and dual mechanisms apply to reparations arising out of the first Gulf War and those arising out of the second?
* The Oil-for-Food Programme has become another matter of contention. $13.5 billlion lie in a UN escrow account, as yet uncommitted. This money results from the sale of Iraq’s oil resources. If the UN turns over this money to the occupying administration, it will become an accomplice to the pillaging of the resources of the people of Iraq. The future of the UN depends on how it deals with the existing UN Security Council mandates regarding Iraq. It must guard against unilateral changes of these mandates being made by US actions and must reject any such changes proposed by the US to the UN. It must also be careful in its relationships with the Coalition presence in Iraq. It could easily become an accomplice to an illegal occupier, whose use of force in securing such occupation is violative of both international law and the UN Charter.
The UN Charter cannot be rewritten unilaterally by a single member state, acting in violation of the Charter itself. Hence all of the UN mandates for humanitarian assistance, peace-keeping, reconstruction and development cannot be legally altered or denied by the unilateral actions of the US. The UN’s humanitarian mandate is not confined to the Oil-For-Food-Programme and it cannot, and must not be obstructed by acts of the Coalition’s presence in Iraq.
The UN and its member states could not have stopped the unilateral use of force by the US. They can, however, prevent the demolition of international law and of the United Nations itself. It was said of the liberating US army in the Pacific theatre of war during the Second World War that, ‘Never in the history of mankind have so many owed so much to so few.’ Unless full conformity with the provisions of the UN Charter and international human rights law is immediately restored, we may well lament today that, ‘Never in the history of human kind have so many suffered so much at the hands of so few.’
Boutros Boutros-Ghali (the former UN Secretary-General) , in outlining his Agenda for Peace stated, ‘Peace in the largest sense cannot be accomplished by the UN system or by governments alone. Nongovernmental organizations, academic institutions, parliamentarians, business and professional communities, the media and the public at large must all be involved.’ Juan Somavia, (the then Chairman of the UN World Summit on Social Development), makes an impassioned plea that the future be organized around the plight of the human being, ‘people as the centre of politics, governance and international cooperation.’
Countervailing people power, expressed in global public opinion has been described as the only other super power in today’s unipolar world. When such countervailing power is mobilised, it can be a potent force for awareness raising (as was done recently when some 15 million people around the world expressed themselves against the war in Iraq. It can also contribute to the recovery of truth and counter the lies of a manipulated global media. Such countervailing people power can be exercised at strtegically opportune moments, in a variety of different ways through rallies, demonstrations, signature and other campaigns, imposition of economic sanctions, civil disobedience and non-cooperation.
Global civil society can then assume many strategically different roles as watchdog, advocate, lobbyist, demander and securer of accountability, imposer of peoples conditionalities and peoples sanctions. Civil society in the United States is uniquely placed, and must assume major responsibility.
The search for new approaches to peacekeeping must be truly people-centred. They must begin by learning from the shortcomings of UN efforts that have been left entirely to the governments of its member states. We must operationalize the Preamble of the UN Charter and its vision of ‘we, the peoples of the United Nations…’ We must hold firm to the values, principles and law of the UN Charter.