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New article name is The Use of Force and Self Defense in International Law
References
editThis has been described as ‘one of the very few authoritative guides to the interpretation of Security Council resolution (Micheal Byers, ‘Terrorism, The Use of Force and International Law after 11 Septenber’ (2002) 51 ICLQ 401, at 402).
Bibliography:
Book: Public International Law Edition: 2ND Editor: Alina Kaczorowska Publication: Old Bailey Press 2003
Book: Public International Law Edition: 2nd Editor: Vickneswaren Krishnan Publication: Old Bailey Press 2002
Book: Principle of Public International Law Edition: 6th Editor: Ian Brownlie Publication: Oxford University Press
Book: International Law Edition: Fifth 5th Editor: D J Harris Publication: Sweet& Maxwell
Legality of Use of Force against Iraq Oppinion Public Interest Lawyers On behalf of Peacerights Rabinder Singh QC, Alison Macdonald 10 september 2002
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Category:Arti'''Bold text'''cles created via the Article Wizard
The right of collective defence was accepted in general international law prior to the appearance of United Nations Charter but is now given express recognition in the provision of Article 51 of the charter (1). This provision is the legal basis for mutual defence agreement such as the NATO Alliance and the Warsaw Pact. According to Article 5 of the North Atlantic Treaty 1949, 34 UNTS 243, the parties:
‘Agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all; and consequently agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the UN Charter, will assist the party so attacked (in order to) restore and maintain the security of the North Atlantic area.’
It may be recalled that, in response to the Iraqi attack on Kuwait, Security Council Resolution 661 (1990) made express reference in the preamble to the ‘inherent right of individual or collective self-defence, in response to the armed attack by Iraq against Kuwait’. In the Nicaragua case (Merits) (2) , the International Court indicated two conditions for the lawful exercise of collective self-defence. The first such condition is that Victim State should declare its status as victim and request assistance. The second condition is that the wrongful act complained of must constitute an ‘armed attack’.
It would be beneficial if we consider the Iraqi and Kuwaiti dispute in the light of Nicaragua precedence and the in the light of Art 51 & 2 (4) of the UN charter.
'Intervention in the Kuwait'Bold text
On 2nd August 1990, Iraqi armed forces invaded the neighbouring sovereign state of Kuwait and ousted the incumbent Kuwaiti government. The UN Security Council called the emergency session and passed the resolution 660 (1990) which condemned the Iraqi invasion of Kuwait, demanded the immediate and unconditional withdrawal of all Iraqi forces from Kuwait and called upon Iraq and Kuwait to settle their International differences by peaceful means. After Iraqi government refused to follow the resolution, Security Council imposed sanctions and an embargo on Iraq. In addition, all states were required to take appropriate measure to protect the asset of legitimate government of Kuwait, supplementing not to recognise any regime set up by the occupying power.
(3) After numerous fruitless attempts to achieve a peaceful settlement, on 29 November, the Security Council passed Resolution 678 (1990) which demanded that Iraq ‘comply fully with Resolution 660 and all subsequent relevant resolutions’ and authorised ‘Member states co-operating with the Government of Kuwait to use all necessary means to uphold and implement Security Council Resolution 660 and to restore international peace and security in the area.’ 15 January was set up as a deadline to co operates with the Security Council resolution.
No Iraqi withdrawal was initiated before the deadline specified in Resolution 678 (1990) and on 16 January 1991 coalition forces from the multilateral forces stationed in Saudi Arabia commenced an aerial bombardment of military installations and strategic targets inside Iraq and Kuwait. After less than a month, the allied forces commenced ground operations to liberate Kuwait, and within four days the territory of Kuwait was surrendered to allied forces.
Resolution 678 (1990) is particularly significance because, for the first time in the history of UN, the use of military force was authorised by the Security Council on the basis of a unanimous affirmative vote among the Permanent Members. However, the multilateral force was not a UN force in the sense of Chapter VII of the charter, but rather a coalition of military forces organised under the command of US.
The use of force against Iraq in the war was declared as a collective measure against the unlawful occupying of the territory by the USA and her allies. The legality to use force against Iraq was authorised by the Security Council and therefore it is submitted that the precedence set up in the Iraq Kuwait war should be considered as an example of the collective self defence not the self defence because there was no armed attack occurred on the USA and on her Allies and there was no threat to the USA from Iraq. It is further submitted that it is necessary to consider these defences in the different way. Otherwise it would be difficult in the future to differentiate those two notions of the defences set up in Art 51 of the charter, and also Art 2 (4) will be endangered by the ambiguity.
Intervention in Iraq
The USA and its allies on 20 March 2003 including UK launched a military campaign against Iraq despite lack of authorisation to use force from the UN Security Council. USA and allied forces liberated Iraq and the regime of Saddam Hussein was toppled. In the absence of any Security Council resolution what justification can the US government invoke in order to justify its military intervention in Iraq is of crucial importance for the very existence of international law. US Congress Resolution HJ 114, passed on 2nd October 2002, which authorised US President George W Bush to use whatever means he deemed necessary, including force, against Iraq. Following reasons were tabled to justify the authorisation stated as:
(4) 1 Iraq has not complied with various UN resolutions. 2 Iraq has stockpiles of chemical weapons, has an advanced development programme and a substantial biological weapons programme, which are a threat to the security of US and Iraq’s neighbours. 3 Iraq supports terrorists groups and has provided assistance to the 11 September 2001 attacks on the US 4 Iraq has demonstrated its continued hostility towards the US by firing on the US and Coalition forces engaged in enforcing UN resolutions and also in the 1993 attempt to assassinate President Bush (Senior) 5 Saddam Hussein’s regime should be ousted and a new democratic government should replace that regime
The reasons grounded for the intervention are international subject matters which should be dealt by the international community not by the US. To tackle such an issues UN should be considered as responsible for maintenance of international peace and security not a country.
On 8 November 2002 the UN Security Council, after lengthy negotiations, adopted Resolution 1441 which confirmed that Iraq had been in breach of its obligation under relevant UN resolution. Resolution 1441 warned Iraq that it would face ‘serious consequences’ for non-compliance and required Iraq to immediately unconditionally and actively’ co-operate with weapons inspectors from UN Monitoring Verification and Inspection Commission (UNMOVIC). The stipulation was also made to submit within 30 days full complete declaration of all aspects of its programme relating to the development of chemical, biological and nuclear weapons, it was submitted by the Iraqi government. UN inspection team headed by Hans Blix and Mohamed El Baradei reported to the UN that there is no cogent evidence which can lead to the doubt that Iraq is in the possession of the weapon of mass destruction. In the light of above discussion and the lack of support from the veto powers it is submitted that there was no reason to believe at the time of attack, Iraq possess the threat to international peace.
There is no evidence that Saddam Hussein has any connection with Al- Qaeda and Osama bin Laden. According to Saudi Prince Turki bin Faisal (5) Osama considers Saddam Hussein as someone who is not worthy of being a fellow Muslim (6). After the invasion of Iraq by Kuwait, Osama bin Laden offered raise an army of thousands of Mujaheddin fighters to liberate Kuwait.
NO fly zones were created by the USA, UK & France in response to resolution 688 in North and South of Iraq condemning against the repressive measures taken by the Iraqi government against it nationals (Kurds). However, the resolution was not passed under the Chapter VII and did not contain any authorisation for the creation of such zones. France admitted that the creation of non-fly zones was in breach of international law and had since withdrawn. Therefore it is submitted that those zones had no status in the international law and any counter measure taken by the Iraqi government should be considered as the self defence. Furthermore, the attempt to assassinate the George Bush (Senior) which took place almost ten years ago could not be justified in the absence of any evidence for pre-emptive attack on Iraq.
Saddam Hussein is notoriously accused of the breaches of Human rights. His application of chemical and biological weapon against his own people (Kurds) and against Iran is an example of his behaviour. Nevertheless, international law prohibits any intervention in the internal matters of a state by another state (7).
The above resolution approved by the US Congress is neither recognised in law nor in fact. Supplementary, it is the breach of its Constitution art 6, clause 2, which requires US to settle all its disputes by peaceful means.
From the above conclusion US intervention in Iraq can only be justified in the context anticipatory self-defence. But whether it is recognised by the international community is doubtful. Public international law recognises that self-defence can be relied upon only on the clearest evidence of a great emergency and as a measure of last resort. This is not the case in respect of Iraq as there was no evidence of any imminent armed attack to be launched by Iraq against the US, and there is no evidence to link Iraq with the attacks of September 2001. In Namibia Advisory Opinion (8) it is enunciated that 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 (9) the legal consequences . The wording of the resolution 1441 should not be interpreted in the sense that it invokes the Charter of UN, especially art 2 (4) which refrain the use of force against any state. The military action of the US against Iraq has gone beyond the current limits of the concept of self-defence.
Both the US and the UK have seriously damaged the UN and NATO and, more importantly, the principle of multilateralism. Both invasions of US and her allies are not cogent example of self defence. The invasion in Kuwait, which was authorised by the UN, does examples the exercise of collective self defence Art 51, as every member should ready to assist the UN if needed. However, the invasion of US in Iraq in the absence of any probative and conclusive evidence and authorisation from the Security Council introduced new world order in which ‘might is right’.
Foot Notes:
(1) Bowett, self – defence in International Law (1858), 200-48; Dinstein, War, Aggression and Self Defence (3rd edn., 2001),22-45 (2)(1986) ICJ Rep 14 at para 176 (3)Public International Law, 2nd edition, Alina Kaczorowska, Old Bailey Press (4)Public International Law, 2nd edition, Alina Kaczorowska, Old Bailey Press (5)(former chief of Saudi intelligence) (6)http://www.fpif.org/paper/iraq2-body.htlm (7)Article 2 (2) of the UN Charter and the 1965 GA Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty. (8)(1971) ICJ Reports 15,53