Humanitarian Intervention in Civil Law and International Law

Introduction

In this essay it is discussed whether the US-led war in Iraq in 2003 led to the revelation of the influence or the weakness of the international law in world politics. In this essay the illegality of the war on Iraq has been discussed. Three legal justifications of varying degree have been considered for the war in the essay. These legal justifications are self-defense that includes anticipatory self-defense and preventative war, the humanitarian intervention doctrine and collective security under the provisions of Chapter VII of the United Nations Charter. None of the justifications can be seen to be providing a secure basis for starting a war, even the most plausible of these is unconvincing for a secure basis for war. Further the importance of the international law in context to the war has been discussed.

Legality of the War in Iraq

In a lecture conducted by the League of Nations Union, Victorian Branch sir Kenneth Bailey gave a lecture that was titled as ‘Why Did We Go to War? What Do We Hope to Achieve? What Sort of Peace Do We Want? A Discussion of These Pertinent Questions’. It was argued by Sir Kenneth that leaving the questions for starting to think about the peace terms before the war is over is entirely wrong. A statement was issued in context of the lecture by the Council of the Victorian Branch 65 years ago warning that for establishing peace on permanent basis simply winning war with the help of force of arms is not sufficient. Even after so many years these pertinent questions have not changed greatly with time. Two insights can be drawn from the letters that were written to the then Prime Minister of UK, Tony Blair by a group of lawyers for the caution against illegal war and the consequences of the letter. The first insight that can be drawn is appreciable level of extraordinary interest and dedication among a wide range of people towards the international law. International law is seen to be considered by many as the most powerful tool that can be used against fighting oppression, poverty and the Arrogance of Power. The second insight that can be gained is that the existence of international law is based on particular context. The international law can be seen to be situating in the core centre of the great debates relating to politics and morality and cannot be judged as some free-floating set of ideas that could be abstractly judged or be rearranged. International law is seen to be deriving its meaning and capacity from the international system it is a part of. A peculiar aspect of the Iraq war is that nearly everyone has been seen to have an opinion on it. There had been various debates in this matter among ordinary citizens, opinion makers, politicians and there even had been a legal opinion offered by the late Pope John Paul II. Even though there are several questions relating to the legality of the post war occupation yet the central concern of many people in the USA, UK and Australia is the intervention legality. For answering the question if it was lawful to use force on Iraq the Article 2(4) of the Charter of the United Nations need to be referred where a general prohibition is mentioned for use of force in international relations. The UN Charter as a whole can be seen to be in favor of peaceful resolution of disputes and to be in promotion of cooperation. Even outside the UN Charter there are other customary international law norms that forbid the unauthorized use of force and intervention. The International Court of Justice in the Nicaragua decision confirmed all these. However there are possibly three exceptions to the general rule against the use of force. These exceptions are: for self defense a State can use force, by the authorization of the Security Council for use of force the States can use force, and lastly for the protection of the vulnerable foreign population. Two distinctive arguments have been made by USA on one hand and UK and Australia on the other hand in the favor of the Iraq war. The US argument that favors pre-emptive self defense[footnoteRef:9] had been rejected by the Attorney General of the UK which can be seen to be dividing the main justification for the war ‘Coalition of the willing’. As it left the US less beholden towards the UN and because of the accordance with ‘Texan International Law’ the US can be seen to be tending to be in favor of the exception of self defense. The ‘Texan International Law’ can be defined as an international law emphasizing the threats from the outlaws, self help needs, institution unreliability and frontier spirit. The right claimed by the US for taking preemptive actions against Iraq for self-defense can be seen to be stretching the international law beyond its breaking point. Although the use of force is allowed by the international law in case of self defense against an armed attack and for the threat of any imminent attack from any adversary, as can be seen in the justification given by Israel in attacking Egypt and Jordan. This right can be seen to be formulated in ‘the Caroline (Exchange of Diplomatic Notes between the United Kingdom of Great Britain and Ireland and the United States of America)’ where anticipatory self defense was permissible in case of instant and overwhelming necessity of self defense where there is no choice of means or no moment of deliberation is left. This however was not the case with Iraq. Neither UK nor USA was under any kind of attack or any threat of attack from Iraq as was put by the UK Parliamentary Intelligence and Security Committee that there was no imminent or current threat by Saddam Hussein. A quite different approach was taken by the Attorney General of the UK and the government of Australia from that of the US. It was argued by these countries that the use of force against Iraq was under the authorization of the Chapter VII of the Security Council. This argument was however rejected by most international lawyers. In order for a serious business like armed intervention to be lawful the Security Council needs to be providing an explicit authorization that would invariably be referring to a State’s rights of taking ‘all necessary measures’ for the termination of any threat or any breach of peace. These terms of resolution were not passed by the Security Council on 2002-03. The resolution 1441 that was passed in 2002 was referring to threat of serious consequences if Iraq was not in compliance with regime of the inspections but the authorization of force was not provided. No pre-existing resolution was present that authorized the military intervention in Iraq. The resolutions 678 and 687 that were passed in 1991 were for the context of Kuwait’s liberation and it would be dangerous after 12 years to be reading them as a permission to invade Iraq. Although it is true that a vile disregard for basic standard for the decency of human being was seen to be led by Saddam Hussein and it also can be seen to be true that the regime’s actions had been condemned by the Security Council between the two Gulf Wars yet no explicit authority was given by the Council for any kind of air or ground assault on Iraq.

Another stronger argument by the UK was grounded upon, known to be as the ‘golden thread’ argument, which led to a possibility of the right to be enforcing on the existing resolutions of the Security Council. Although the argument can initially be seen as appealing yet the permission of these legalized vigilantism is not granted by the UN Charter. There is another exception to the prohibition on the use of force. The use of the superiority of the military to end the violations of the human rights against the vulnerable foreign populations. The UK Government had been articulating an idea for the doctrine of humanitarian intervention. Although the idea can be attractive but it can be seen to be requiring for a humanitarian catastrophe.

It is irrelevant whether a humanitarian intervention on Iraq would have been justifying the patchy practice in favor of the doctrine has led to the failure of the support of the principle of the humanitarian intervention by the states. No arguments that were made in favor of the war could be found to be providing the level of justification that was needed. Hence the war can be said to be unlawful.

Importance of International Law

Some people are of the opinion that the betterment of the international law would not be effective for the change of the world. For these people the legality or illegality of the war does not matter as it can be endlessly manipulated. The Editorial in The Sunday Telegraph on 29 February 2004 has considered the international law as bogus and the relating to its importance as pointless.[footnoteRef:21] Even though this can be seen as a powerful view on the international law yet international does matter. It matters for the defendants of the various criminal prosecutions for committing criminal acts in opposition of the war. It matters because the new ICC under the terms of the resolutions of the Security Council would lack thee jurisdiction over the forces of the missions that have been authorized by the UN. It matters enough to be supplying front page headlines in the newspapers even after one year. International law matters for the assessment of the war on Iraq. This war seen to be a bad precedent for law. International law further matters because of people’s concern for the legality of the war. Lastly international law matters because if not for the protection provided by it many people would be in the ‘legal black hole’[footnoteRef:22] without any recourse towards any legal orders. Although international law matters three other things also mater in this context. Firstly access to the credibility of the facts of the cases by the democracies. Secondly, decisions of the future of the international law are needed to be made strategically and prudentially. Thirdly, ethically defensible decisions are needed to be made. Using these grounds it would be hard to make any case for the Iraq war as mentioned by Richard Clarke who described the war on Iraq as ‘gross and extremely costly strategic error’.

However not every consequence of the war could be negative. On the positive side there had been a fall of a brutal leader. The war can be seen to be a blow on the idea of an international society. It was proved by the Security Council that it was not just a mere rubber stamp for the US power. The mark of great democracies and pre war period that has been marked by the arbitrary and secretive decision makings that had been hidden by misinformation.