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 of “progressive” polemics 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 These critics will naturally pay no attention to fact or law and build their case on outdated concepts such as “sovereignty”, when they would be the first to attack such defenses if used by the west. The American President has been accused of being a cowboy on this issue with no support in international legal doctrine for his position. Nothing could be further from the truth. The literature and language of the international legal corpus on this issue will not lend much comfort to critics of the President’s position.
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 do we 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 a nation’s physical integrity based on a legitimacy grounded in commitments to liberty is doctrinally defensible and a far better assurance of world stability than respect for a nation’s physical integrity based on a sovereignty stemming from bloodlines of familial descent and the accidental arrangement of geographic barriers which has never had conceptual confirmation in either natural nor moral law and has been nothing more than a specious defense from the witless defenders of despots and dictators.
The Doctrinal Supports
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. He goes on to write that “…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.”
Derek Bowett in “Self-Defence in International Law” states:“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 security are endangered by a breach of the law in order to protect their rights and security by their own action is obvious.”
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.
Colbert in “Retaliation in International Law” sets out three conditions for pre-emptive attack which are the recognized customary standards:
1. 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.
2. Second, a demand for redress must have been made by the affected parties.America and the U.N. have mad these demands countless times.
3. Third, the offending government must have rejected or neglected the demand for redress. No commentary is necessary here.
The Case for America
Canada has often been called a peace loving nation. This is only a half truth. Canada is above all a freedom loving nation. We have sacrificed more sons and daughters for the survival and success of liberty in the past century than even the United States as a proportion of population. We never shirked from this responsibility. We never calculated how many more soldiers there were in the Kaiser’s army. We never worried about the number of tanks in Hitler’s Panzer Divisions. We were never awed by Stalin’s might in Korea.. We supported the values of western civilization because we wanted to live as free men and women even when we had little more to give than “blood,sweat and tears”. We understood, viscerally, that man’s millennia long struggle to break out of the forests of barbarism was a precious quest. We lionized and celebrated those who stood with us in vigilant opposition to any assault on our values of democracy and freedom. We would “rage against the dying of the light” whenever the black night of terror threatened.
It is time for Canada and the rest of 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. Our nation’s pride and purpose was never compromised or cudgelled by mountains of munitions and it should never be influenced by barrels of oil. 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