The Current Crisis
Armed Response Under International Law
Conditions for Armed Response
Violations of International Law
Demands for Redress
Necessity of Proportionality
The Case for America
The Current Crisis
America is facing charges in world forums that any pre-emptive incursions into, or attacks on, Iraq violate international legal norms. Some of the more vehement enemies of the Bush challenge have even started to use the term “war crimes”. Unfortunately, Canada, may find itself right in the middle of the latest controversy because our political leadership has shifted into a position that could be defined as nebulous neutrality at best, and outright opposition at worst. It will probably be from the actions of this latest in a long and notorious line of third-world thugs, Sadaam Hussein, that the professional panderers in the media and the sunshine soldiers of academe will draw their inspiration to launch new intellectual barrages against the United States in an attempt to display their sympathies for the “emerging nations” “right to be wrong” while they evolve in their crypto-Darwinian experiment in nation building. These critics will naturally pay no attention to fact or law and build their case on outdated concepts such as “sovereignty”, when they would be the first to attack such defenses if used by the west. It is critical that we become familiar both with the law on this issue, in its customary and treaty form, as well as the legal context of new codespeak such as “proportionality” that could be the newest verbal grenades. The literature and language of this legal corpus will be the most important weapons of response. The battlefield of this public relations war should not be easily ceded.
Sovereignty no longer matters. In the post Holocaust era the civilized world realized that Hitler’s Germany was sovereign too. As was Stalin’s Russia and Mao’s China. And for that matter so was Kaiser Wilhelm’s Empire. Over eighty million people died in a century characterized by an orgy of blood because the civilized world attempted to respect sovereignty. But borders and customs guards, flags and institutions offered no protection to the free peoples of Czechoslovakia and Poland nor to the millions of bodies floating in the Yangzte River or frozen in the wastes of the Gulag Archipelago or butchered in the jungles of Rwanda. The lesson of the twentieth century was not that independent pre-emptive response would unleash anarchic bloodbaths- to the contrary- failure to respond, and worse, attempts to appease, would allow time for barbarous dictators to arm themselves to the teeth and embroil the world in a whirlwind of devastation heretofore unimaginable. The road to Auschwitz began in Munich.
What then to replace the old dogma of sovereignty with? Imbedded in every attempt by the free world to enact new codes and standards of international behaviour was the concept of legitimacy. And the litmus test of legitimacy was democracy. Not because it was the ideal system. As Churchill said,”…Democracy is far from perfect, but after millennia of struggle it is the best that man has to offer…”But because it was the price of entry to the table of civilized peoples. At least with a democratic system a nation would be held accountable not only to its own citizens, but with free access and communication, the spotlight of free nations would be ever vigilant in reigning in any threatening dark night of terror. A democratic state’s legitimacy would come from its inherent responsibilities to, acceptance of and engagement with the development of freedom in the international order. And respect for legitimacy based on commitments to liberty is a far better assurance of world stability than respect for sovereignty based on bloodlines of familial descent and the accidental arrangement of geographic barriers.
Armed Response Under International Law
Some legal theorists take the view that armed response is illegal because of the provisions of the U.N. Charter. They feel that Artcles 2(3) and 2(4) prohibit any use of force which cannot be justified as self-defense under Article 51 and that the scope of the current proposed Iraqi intervention does not constitute legitimate self-defense.
We must be prepared to address this charge. Julius Stone, amongst other international legal experts,strongly disagree with this narrow definition. Their view is that the phrase “and justice” in Art.2(3) and the phrase “against the territorial integrity or political independence of a member state or in any manner inconsistent with the purposes of the United Nations” in Art.2(4) must be read as restricting the application of these two sections. In “Aggression and World Order: A Critique of U.N. Theories of Aggression” he argues that if justice were not to be served by the peaceful negotiations required by Art.2(3) a state would be fully justified in protecting its interests through a restrictive interpretaion of this section and thus engaging in armed response.
The resort to force of arms would be justified under Art.2(4) where there was no intention to change the territorial integrity or political independence of the authority attacked---merely to remove the causes of the breaches of international law. Clearly Bush’s arguments do not aim to change Iraq’s boundaries nor to negate its nationhood. America seeks not to colonize Iraq-merely to root out the causes of threats to the peace which Sadaam is unwilling to do and the U.N. is to impotent to do.
Derek Bowett in “Self-Defence in International Law” takes a much broader definition stating:“The right of self-defence is common to all systems of law.As a legal concept its function and its scope may well vary with the degree of maturity attained by the system of the law in which it finds a place.In any immature system of law, where there is absent any centralized machinery for the enforcement of the law and the protection of the rights of individuals, or where such machinery is inefficacious or dilatory in securing those ends, the need to allow action by those whose rights and securiry are endangered by a breach of the law in order to protect their rights and security by their own action is obvious.”
The United Nations laid down the maintenance of international peace and security as one of its fundamental aims. The actions of Iraq constitute aggression against international stability by the U.N.’s own definitions as well as by customary standards. America’s assault on Iraq would frankly further the spirit and letter of the Charter .
Conditions for Armed Response
Robert Tucker in “Reprisals and Self-Defense” writes that though the U.N. has attempted to discourage armed response, the functional equivalent of such measures are permitted as self-defense and that the U.N.’s own definitions of the latter term include all measures necessary for the protection of a state’s territorial integrity and any other interests making up the state’s security. Tucker is clear that certainly under customary standards, but even under U.N. definitions, armed response can be utilized as self-defense in response to threats quantitatively and qualitatively different than a traditional invasion by one state of another. Tucker’s classic example of this is the U.S. blockade of Cuba where America justified resort to forceable measures and invoked the self-help doctrine of self-defense even though neither the Soviet Union nor Cuba had technically violated any norm of international law. In our current Mid-East Crisis we have considerable violations by Iraq both of customary and treaty law.
The classic definition of armed response as set out by Hindmarsh in “Force in Peace”which has been used as the seminal point of departure in the literature on this issue for the past seventy-five years is as follows:“Public reprisals may be defined as coercive measures taken by a state, in order to secure redress for or prevent recurrence of, acts or omissions which under international law constitute international delinquency.”
America’s proposed assault on Iraq occurs in a situation which can broadly be described as one of “absence of war” in the classic definition of war. But there have been violations of international law and threats to peace by Iraq which meet the conditionality requirements allowing others to engage in armed response.
The three main conditions were set out by Colbert in “Retaliation in International Law” and are the recognized customary standards:
Ø First, there must have been a violation by a governing authority
of an internationally recognized duty .There has been such a violation by
Iraq as relates to its production of weapons of mass destruction as well as
Its failure to comply with international inspection.
Ø Second, a demand for redress must have been made by the affected
parties. America and the U.N. have made these demands countless times.
Ø Third, the offending government must have rejected or neglected
the demand for redress. No commentary is necessary here.
Once these prerequisites are met the responses themselves, once undertaken, are subject to three overriding principles. They must be against the entities, institutional and organizational, responsible for the violation of international legal norms. Demands for redress must have been attempted. And all responses should conform to what is known as the “doctrine of proportionality”.
Violations of International Law
The development of weapons of mass destruction and the refusal of the Iraqis to allow inspection are both violations of international law justifying armed response by the west. An excellent overview of the major doctrinal principles on this issue is “The Beirut Retaliation-A Case Study of the Use of Force in Time of Peace”,New York University Journal of International Law and Politics. We will note only a few which demonstrate not only the violations of customary international law but also violations of specific international agreements. It will be very clear from the wording of these citations how they will play out against the Iraqi regime.
In 1951, the United Nations International Law Commission acting on a request from the General Assembly, prepared a Draft Code of Offences Against the Peace and Security of Mankind, Article 2(6) of which included in its definition of such crimes the following:
“The undertaking or encouragement by authorities of terrorist
activities in another State, or the toleration by the authorities
of a State of organized acitivities calculated to carry out terrorist
acts in another State.”
Article 2(4) of the same Draft Code,as widened by the Commission in 1954,condemns as an international crime under the Nuremberg principles:
“The organization or the encouragement of the organization,by
the authorities of a State, of armed bands within its territory or any
other territory for incursions into the territory of another State,or the
toleration of the organization of such bands in its own territory, or
the toleration of the use by such armed bands of its territory as a
base of operations or as a point of departure for incursions into
the territory of another State, as well as direct participation in or
support of such incursions.”
Clearly, international legal principles condemn as violations of international law the support, encouragement and toleration of terrorist activities such as those supported by Saddam in addition to his violations of international law on the issue of weapons.
Government support of terrorist activities was also condemned in the Declaration on the Inadmissability of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty adopted by the U.N.General Assembly on Dec.21,1965. Article 2 of the Declaration provides that: “…no State shall organize,assist,foment,finance,incite or tolerate subversive,terrorist or armed activities directed towards the violent overthrow of the regime of another state…”
On April 12, 1974, the United Nations Committee on the Definition of Aggression agreed that this violation of international law is comprised of the following: “The sending by or on behalf of a state of armed bands,groups, irregulars or mercenaries which carry out acts of armed force against another state.”
The Iraqi government’s long history of invasion, indoctrination and incitement of international terrorism and fomenting violence against other states would be enough to justify armed response even without the overwhelming evidence on weapons and inspections. The conditions justifying armed response have clearly been satisfied.Kelsen, writing in “Principles of International Law”,states that it is unquestioned that armed response may be undertaken when states commit breaches of international law and where the governing authority fails to take action to prevent further breaches. In such a situation the illegal acts may be imputed to the governing authority.The government is as liable as if it conducted the action through its regular armed forces or direct orders.He writes:
“…states are obliged by general international law to prevent
certain acts injurious to other states from being committed …
Oppenheim,writing in “International Law”goes further. He takes the position that if a government knew of activities which violated international legal norms and did not suppress those activities then that state is responsible for those actions and anyone or anything belonging to that governmental authority may be the target of a reprisal other than individuals of the delinquent state living abroad and public debts owed by that state.
Demands for Redress
It is well known how many times the United States has asked Iraq to curtail certain of its actions. But what should be remembered is that America has just as often asked the U.N. to act on these issues to fulfill what some international legal authorities feel is a prerequisite prior to armed response.
It is not necessary to go through the entire sad record of the U.N. and America or the west in general. Daniel P. Moynihan’s feelings about the world body in his “A Dangerous Place” bear remembering when he wrote that he felt he “was in the middle of a lynch mob” whenever western interests were brought up. The U.N.’s record on the free world’s interests is well known. We consider it here only for the purposes of international legal prerequisites to armed response and any questions that may be raised on this narrow point.
Julius Stone has written that a state would not have to resort to the United Nations where past experience has shown that no action will be forthcoming from that body.Citing Oppenheim:
“When a State is informed of a threat and the danger can be removed through an appeal to the authorities of the neighbouring country or international authorities,no case of necessity has arisen. However if such an appeal is fruitless or not possible, or if there is danger in delay, a case of necessity arises and the threatened State is justified in invading that country and neutralizing the threat.”
Necessity of Proportionality
This question is important to examine particularly since its invocation by Foreign Minister Graham and certain European leaders. This notion has a very broad range of definitions. Richard Falk in the “Law of Retaliation” takes the traditional view
that armed response should not inflict more damage than was inflicted during the initial injury. Venezia in “La Notion de Represenailles en Droit International Publique” broadens the traditional view by adding that reprisals should not offend
norms of civilized conduct and regard for human life and that the retaliating state must avoid a use of force which would risk a full scale war or jeopardize world peace.
Colbert, adding yet another definition, understands proportionality to mean that a state not employ force beyond the extent necessary to accomplish the purpose of the reprisal.
The parameters defining proportionality are inherently contradictory. If a state accepts Falk’s view then Colbert’s makes no sense. Bush’s argument for armed response is not for sport or shooting practice.It is to prevent and neutralize a threat. The purpose of armed response on Iraq is to destroy the cause and the base of the violators and violations of international law. This the free world is fully entitled to do under customary and legislative international law.
It is in the consideration of Venezia’s definitions that we meet some of the vexing legal issues. How can we address the need not to offend norms of civilized conduct and regard for human life? America has been repeatedly criticized for carrying out attacks in Afghanistan with the consequent collateral damage of the deaths of some civilians. Yet collateral damage is not intentional homicide as practiced by Iraq. Colbert’s definition would allows for attacks on instigators of violence and on those who threaten international peace and stability.
Without restating the obvious, it is Iraq that lacks regard for human life by endangering the world through production of weapons of mass destruction and it’s threats to use them today as they did in launching chemically equipped scuds against Israel in the Gulf War and indeed in its very aggression against Kuwait, in addition to its violations of inspection accords it has consistently agreed to and repeatedly abrogated. The free world’s right to intervention to destroy the threats to peace would clearly meet the tests of proportionality as long as they were aimed at the armed instalations and the government that built them.
As for Venezia’s second concern there is a problem of perception. None can foresee what amount of force will trigger the radical Islamic nations into a wider war. That part of the world does not need much of an excuse to attack and is already at war with the west. In the words of Prof.Daniel Pipes militant Islam is“…the only vital, aggressive, totaliarian movement in the world today …”. The politesse of western legal traditions are lost in the world of sha’riah justice. It is impossible to measure what amount of force is sufficient. The justification for reprisals is that they will wipe out the cause of violations of international law. Proportionality is a vague and subjective notion. It does not abort nor abridge the right under international law for a state to exercise armed response. The inherent contradiction which exists between proportionality and the right of armed response might be resolved if we use proportionality as a tool to define the farthest frontiers of where a state may go after it accomplishes its military goals in eliminating the perpetrators of international delinquencies.
The Case for America
The United States has satisfied the three conditions precedent for the utilization of armed response under international law. Clear violation by a governing authority of international standards, demands for redress and the rejection or neglect of such demands by the offending party. Iraq’s responsibility under even the mildest international legal tests thereby satisfies the first principle of engagment.
America has satisfied three of the four tests of proportionality even though this notion is not a doctrine which can abort nor abridge a state’s right to armed response particularly within the context of America’s use of the self-help aspects of the U.N.’s own definition of self-defense. The west’s attack will be taken against an enemy whose actions constitute aggression within the United Nations own definitions thereby justifying force of arms once again even under restrictive definitions of treaty doctrine’s of self-defens
Under customary international law America is fully justified in exercising armed response for the protection of its citizenry and it non-territorial interests. Having received no redress either from the U.N. nor from Iraq, President Bush’s position is justified under the doctrine of necessity.
It is time for the free world to act as worthy heirs of those who made the supreme sacrifice in determined defiance to tyrants and tyranny and join America in response to the critical and compelling imperative to assault. The decaying rot of oppression can never be allowed to still our pledge to make gentle the life of this world nor to shake our faith that relief of the oppressed is the paramount prerequisite for the protection and progress of civilization. The survival and success of liberty has always demanded such sacrifice .These have been the age-old lessons of history’s uncontestable march from repression to renewal, the noble vows of courage of freedom’s champions and the singular hope of man for an era when truth will not be compromised by timidity, honor will not be cheapened by objectivity and hope will not be mortgaged by expediency.
Beryl P. Wajsman
Institute for Public Affairs of Montreal