20 - 26 September 2001
Issue No.552
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Al-Ahram Weekly Online 20 - 26 September 2001 Issue No.552 |
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The death of the United Nations?
A rogue response by the US will lead inevitably to the collapse of the international system it helped create half a century ago. Jean Allain* cannot imagine the consequences
The repercussions of the attacks on the symbols of American capitalism and its military establishment may well mark the end of the system of international governance established after the Second World War. Although the situation is still in flux, the United Nations framework may come to be seen as the principal victim of the attacks in New York and Washington of 11 September.
The fate of the current international system will depend on the manner in which US President George W Bush seeks, in his own words, to "hunt down and punish those responsible for these cowardly acts." If the US authorities consider the attacks to have been masterminded by individuals outside of the US, the likelihood of extradition and trial within the American judicial system seems remote. Instead, if the past is any indication, the US will play to its strength and act militarily in retaliation. To what extent the US will act within the current international framework will in large part dictate whether the UN system conceived in 1945 will survive.
The US and its allies, having vanquished the Axis powers, in the aftermath of the Second World War sought to establish -- for only the second time in history -- an overarching international system. The UN system was established to replace the failed League of Nations, conceptualised by US President Woodrow Wilson after the First World War. During the negotiation leading to the Treaty of Versailles, statesmen understood that the stakes of going to war were becoming too great and that a international order would have to emerge. The dismemberment of three empires (Austro-Hungarian, Czarist Russia, and Ottoman) signalled the need to establish the League of Nations as the basis of an international framework that would ensure the survival of all countries.
Yet the League of Nations system failed in part because it did not go far enough in giving primacy to the international organisation over the wishes of individual countries. This was reflected in the Council of the League of Nations -- the precursor the UN Security Council -- which, working by consensus, effectively granted the veto to all its members. A further defect in this international system was that important countries, such as Germany and the US, remained outside it; Japan, Italy, and the USSR were forced out over disputes regarding their colonial ventures.
These failings meant that the League of Nations system was powerless to stop the advent of the Second World War. As a result, a new international system emerged that sought to rectify past defects and learn the lessons of war.
What emerged at San Francisco in 1945 was a move, once again spearheaded by the US, to establish the UN Organisation, meant to administer a second international system. Under the Charter of the UN, the UN Organisation was the locus of, first and foremost, a collective security system that would effectively remove from the hands of individual countries not only the ability to go to war but -- more radically -- to undertake any military attack. The lessons of the failure of the League of Nations were incorporated into the UN system, it having been understood that the level of sophistication of armaments was such that no country could be trusted to go it alone.
As a substitute for this restriction on what had hitherto been a country's unfettered prerogative to go to war, the use of force was internationalised and placed in the hands the UN Security Council. Military actions from 1945 onward, if they were to be considered legal by the new international framework, would have to be sanctioned by the UN Security Council as a response to a threat or breach of the peace or an act of aggression. Thus, the ability to project force unilaterally beyond one's borders was effectively made illegal by the UN system.
The only other situation in which a country could use force legally under this system was if it was attacked on its own territory. In such a situation, the UN Charter provides for an "inherent right" of self-defence, but only up to and until "the Security Council has taken the measures necessary to maintain international peace." In other words, the right exists until the UN steps into the breach on behalf of the international community. Further, the notion of self-defence as it has evolved in international law does not allow for "self-defence" abroad; it is simply understood as the repulsing of an armed attack from one's own territory.
The UN system as envisioned by its Charter could collapse in the wake of actions the US will take in response to the recent air attacks on the New York World Trade Center and the Pentagon Building. Recently, an apparent policy shift in the US has brought into question its commitment to the international order created in 1945. On at least three notable occasions since 1998, the US has blatantly acted outside the UN system, and therefore illegally.
Since December 1998, the US and its junior partner, the United Kingdom, have been bombing Iraq systematically without UN Security Council authorisation. If one were to couple the deaths resulting from these illegal bombings with those caused directly by UN sanctions against Iraq, they would clearly outstrip the toll that will emerge from the recent events in America.
The second instance, minor by comparison, was the August 1998 missile attacks on Afghanistan and Sudan as a result of the bombing of US embassies in Kenya and Tanzania. Again, these acts were not sanctioned by the UN Security Council and cannot be considered acts of self-defence as defined by the UN system of collective security. They were illegal.
The final example of the US acting outside the UN system was in leading NATO forces in their air campaign against Yugoslavia over its suppressive measures in Kosovo. While the NATO bombings may have been based on the notion of "humanitarian intervention," such a concept lacks a stable footing in international law. NATO's failure to gain UN Security Council approval of its operations meant that its actions were illegal. The result has been that eight NATO Member States currently find themselves accused of acts of aggression and violations of humanitarian law before the International Court of Justice.
Beyond these illegal acts of aggression, the US, more generally, has been at variance with the emerging order based on the UN system. The Bush administration appeared to be moving toward increased isolationism with its opposition to the likes of the Kyoto Protocol. Yet disengagement has cut both ways, as the international community has sometimes isolated the US by moving forward despite its opposition. For example, the international community established the 1997 Land Mines Treaty and the 1998 International Criminal Court over the objections of the Untied States. Recently in Durban, countries rallied to make a final declaration at the World Conference Against Racism despite the walk out of the low-level US delegation.
With the US wavering in its support of the UN system of international order, the response of the Bush administration to the tragic events of 11 September will go a long way towards determining the fate of the UN system.
Within the current international order as established by the UN Charter, the US cannot justify a military response by citing self-defence. This is so because the UN system, as it was conceived in 1945, was meant to regulate traditional acts of war of one country invading an other. For this reason, self-defence has been interpreted as the repelling of armed forces from one's own territory. Thus, self-defence is not applicable in a situation where there is no invading army.
While US Secretary of State Colin Powell has been building coalitions and European powers have invoked the collective security provisions of the NATO Treaty, action by any alliance that will emerge must, in the final analysis, gain UN Security Council authorisation to be deemed legal. Short of this, any alliance will be acting outside the law.
To act legally, within the framework of the UN system, the US, upon considering that a country had been involved in masterminding the attacks, would have to bring a claim to the UN Security Council. If the Council was to determine that an accused country's actions constituted a breach of the peace, it could impose coercive measures such as sanctions, or could allow for the use of force if it considered that this would be beneficial in restoring international peace.
If, on the other hand, American investigators were led to believe that individuals not backed by any country, but working independently (i.e. "terrorists"), were responsible, then the US could seek to have those individuals extradited to stand trial in America. Further, the US could seek coercive Security Council measures against a country that it could demonstrate had knowingly allowed its territory to be used by such individuals for illicit activities.
It appears, however, that the facts speak against the United States acting within the UN system. The events of last week, after all, were the first systematic attacks on US soil since the British invasion of 1812. (This is, of course, excluding Pearl Harbor: Hawaii, having been annexed by the US during its colonial ventures of the 1890s, had not yet become a State of the Union, a status it would gain only in 1959, nearly 20 years after the Japanese attack.)
Considering the attack a call to war, the US, in all likelihood, will act with all its fury and might. In unleashing its war machine, it is not hard to imagine that the United States will use a disproportionate amount of force, maybe even nuclear weapons, against a country that it considers in some way responsible. In so doing, it will lack the pretext of its Kosovo venture, that of "humanitarian intervention." Instead, it will be acting out of pure vengeance. While it may attempt to justify its actions in terms of "self-defence," such claims lack the legitimacy of being based on the UN system. The UN Charter, it bears repeating, outlaws all projection of military force not sanctioned by its Security Council. Such rogue actions by the US would challenge the very core of the UN system that it helped create over 50 years ago.
It should be recalled that the breakdown of the first international system -- the League of Nations -- resulted in the Second World War. Today, the stakes are much higher, for nuclear weapons have entered the equation. Can the international system as conceived by the United Nations Charter survive the coming onslaught? Without a restrained response by the US, we may well be witnessing the death of the UN system, with results too horrifying to imagine.
* The writer is assistant professor of public international law at the American University in Cairo.
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