Time to rein in the real rogue states

So the war on Iraq is underway.

While the current focus has inadvertently shifted to whether the US-led ‘coalition of the willing’ and Iraq will observe the rules of engagement in the conduct of war (jus in bellum), the world community is left saddled with the unenviable task of reassembling what remains of an international order that the US and its coalition allies have willfully crushed for the sake of their political and economic expediency.

Whether this will be successful remains to be seen, but the alpha and omega is simply this – that a case of crimes against humanity must be made without delay against the US and its coalition for its pursuit of an illegitimate act of war, and those responsible for this crime must be swiftly brought to justice.

Any delay or failure in starting this process will only invite future acts of aggression, territorial invasions and vigilantism, either by states or non-state actors, based on and justified by the precedent set by the Bush and Blair regimes on March 20.

Grounds for legitimacy

In the area of the conduct of war, justified or otherwise, there is a vast body of international law in which all parties concerned are compelled to follow. This is embodied, but not limited, to the four Geneva Conventions of 1949.

The International Criminal Court (ICC), which came into effect o­nly eight months ago, also has an entire section specifically o n crimes against humanity during wartime.

In the realm of jus ad bellum (the legitimacy of war), Article 2 of the United Nations Charter declares that, “All members shall refrain in their international relations from the threat or the use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.”

In relation to this is Article 51 which states that, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attacked occurs against a member of the United Nations.”

It is this section of the charter that qualifies whether a war is just or unjust, and the UN further outlines strict definitions of acts of aggression and justified self-defence.

This also means that war on Iraq can occur without the authorisation of the Security Council, only if it were a matter of self-defence and as a last resort.

However this line of argument was abandoned by the US and British governments as they pursued instead, the issue of compliance through the Security Council as well as an attempted new resolution, following resolution 1441.

No automatic right

The British attorney-general Lord Goldsmith succinctly yet fallaciously, lays down the justification for his government to use military force in the case of Iraq to a holy trinity of Security Council resolutions – 678, 687 and 1441. Similarly, the US relies heavily o n resolution 1441.

The first two resolutions centred o n Iraq’s invasion of Kuwait (resolution 678 allowed for all means necessary to compel Iraq to leave Kuwait and resolution 687 was a declaration of ceasefire, demanding that Iraq to surrender up its weapons of mass destruction at the end of the Gulf War of 1991).

Resolution 1441 came about when the Security Council was unanimously of the opinion that Iraq had breached resolution 687.

However, both resolution 687 and 1441 are neither explicit nor implicit in the automatic right to use military force in the event Iraq fails to comply. Goldsmith’s contention is that, since there was material breach of resolution 687, the 1991 ceasefire would no longer hold and the use of military force would be justifiable. However this were the case, then resolution 1441 would not have been necessary in the first place.

Even with resolution 1441 in place now, the Security Council still has to vote o n a new resolution that officially authorises the use of military force.

This is explicitly detailed in the resolution which says the Security Council will convene, upon proof that Iraq has not complied with its obligations. It will then “consider the situation and the need for full compliance with all relevant resolutions in order to secure international peace and security”.

The fact that the UN weapons inspectors, headed by Hans Blix (photo), had begged for more time to continue their work means there is still no evidence that compels the council to meet and consider a military option to facilitate Iraq’s compliance.

The recent meetings of the council have in reality been an attempt by the majority of the members to prevent the US and British governments from going into battle.

A further consideration is that the Security Council mandate is limited to disarmament of Iraq, not ‘regime change’.

Hence all this talk by the US and British governments of ‘regime change’, the current assassination attempts o n Iraqi President Saddam Hussein and leaders of his Baath party, and the installation of a ‘post-Saddam democracy’, have absolutely no basis under international law.

Imperialism justified?

Certainly the UN has no mandate to consider such options. This suggests that even if Iraq were to be found free of weapons of mass destruction, it would make no difference to the US and British governments.

This blatant act of unilateralism, if allowed to continue, also means that history will be revised and similar acts in the past justified. If the US today is justified in its ‘moral’ campaign, then can we also justify British, French, Dutch and Italian imperialism of the past that was done in the name of progress and civilisation?

The problem that essentially exists is not so much whether a case has been made against those who now rain missiles and an assortment of firepower o n Iraq.

It is in all form and substance, an unequivocal and premeditated act of aggression, o ne set in stone by the US shortly after September 2001. The fundamental question is: Who dares rein in the rogue states?

The Security Council will not be able to censure two of its permanent members – the veto will be used. The UN General Assembly can meet and condemn the US and its coalition, but we have seen too many General Assembly resolutions lie in the wasteland of non-implementation and mountains of paperwork.

The ICC unfortunately will not have any jurisdiction over war crimes committed in Iraq, perhaps the supreme irony being that Iraq has not ratified the Rome Treaty (the US has also not ratified the treaty).

An option may be to pursue other less significant members of the coalition covered by the ICC, but this will mean setting the main culprit free to act again and again with impunity. Already the US has set its sights on Pyongyang next.

This leaves us seemingly with almost no alternative, until and unless the remaining members of the UN can pull together and exercise a combination of political will, determination and above all, courage, to initiate a new mechanism in order to bring to justice the US and its coalition. The attack o n Iraq is after all, an unprecedented event.

Failure to rein in these rogue states and subjugate their self-imposed authority will signal the end of the UN project, not unlike the League of Nations, and make a mockery of both the meaning of justice and the rule of law.

Time is running out, not for Iraq or Saddam, but for the fragile international order that we have. It is far, far from perfect and the UN has repeatedly fallen below our expectations and aspirations.

But for the millions of people who now pin all their hopes on this body to rise to the occasion, it cannot fail us today.

(Malaysiakini.com)

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