The death of the UN (redux)
The 'New World Order' proclaimed by Bush Sr in 1991 only took hold this week, writes Jean Allain*
During the week following the terror attacks against the World Trade Center and the Pentagon, I wrote in this newspaper that "the United Nations framework may come to be seen as the principle victim of the attacks in New York and Washington of 11 September. (see "The Death of the United Nations?", Al-Ahram Weekly, 20 - 26 September 2001).
What I sought to explain then was that the fate of not only the United Nations as an organisation, but of world governance, was at the mercy of the manner in which the United States' administration of George W Bush would react. I asked a fundamental question which appears to have been answered this week: "Can the international system as conceived by the United Nations Charter survive the coming onslaught"? Regrettably, the answer has come from the US president himself, by way of an ultimatum aimed at Iraqi leader Saddam Hussein.
The inability of the United States to muster a simple majority of the UN Security Council to wage war on Iraq, coupled with the real threat of a French veto, meant that American diplomacy was dead in the water. Instead of forcing the issues, the Bush administration simply walked away from the world organisation. But by insisting on using force outside of the United Nations system, it made clear that the multilateral controls on the use of force which had been the hallmark of world order since 1945 no longer held.
The 'New World Order' proclaimed by the father of the current US president -- in retrospect, with historical irony as it fell on the infamous date of 11 September, though in 1991 -- only took hold this week. Discarded is the regime of world order which outlawed the unilateral use of force by any one country. Instead, the United Nations system provided multilateral control of the use of force, whereby any recourse to arms had to be sanctioned by the Security Council.
The two manners in which the use of force were to be considered legal were, first, by virtue of Article 51 of the UN Charter, which provided for an "inherent right" of self- defence, allowing a country to repel an attack on its territory but only "until the Security Council has taken measures necessary to maintain international peace and security".
The second manner whereby the use of military force was considered legal within the United Nations system was by virtue of Chapter VII of the UN Charter, which called for a multilateral determination by Security Council Members to determine that there existed a threat or breach of the peace, or an act of aggression, which would, in turn, allow for a collective response to ruptures of the peace. Thus, in setting up the UN system in San Francisco in 1945, countries decided to take the determination to project force out of the hands of individual countries and to place it in the hands of the collective: the Security Council. In this manner, a determination to use force was to be based on the consideration of 15 countries that a threat to international peace existed and that they, as members of the Security Council, would seek to reverse that threat by all necessary means including the use of force.
What amounted to a collective security arrangement was established under the UN Charter whereby a trade-off was established. Countries would renounce unilateral use of force in exchange for an acknowledgement that an attack against one would be considered an attack against all UN members, and thus mandate the international community, through the Security Council, to act on its behalf. Granted, the UN system remained frozen during the Cold War era, yet an international consensus existed on both sides of the Iron Curtain that the use of force outside of Article 51 or Chapter VII of the Charter was illegal.
The international consensus on the illegality of the use of force beyond the control of the United Nations, though having sounded its death-knell this week, was manifest in the actions of Western states since Kosovo in 1999 and has a longer pedigree if one takes into consideration the writings of Anglo-American jurists who have sought to bend over backwards to apologise for US aggression by deluding themselves that there were legal means to use force beyond those prescribed by the UN Charter.
As late as 1986, the United States itself, in answering the charges of its aggression against Nicaragua before the International Court of Justice, agreed that Article 2(4) of the UN Charter, which demands that "Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state", was the established law with respect to using armed forces. Thus, it was agreed that beyond the UN Charter exceptions, no recourse to force was legal.
Yet, many Anglo-American jurists have done a disservice to the English-language world by purporting that there exists a further exception to the use of force -- which today is at the heart of the Bush doctrine -- the notion of 'preemptive self- defence'. In September 2002, George W Bush put forward The National Security Strategy of the United States of America in which he declared that "We must be prepared to stop rogue states and their terrorist clients before they are able to threaten or use weapons of mass destruction against the United States and our allies and friends." He went on to say that "the United States can no longer solely rely on a reactive posture as we have in the past ... We cannot let our enemies strike first."
To justify this position, the US president wrote that for "centuries, international law recognised that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often condition the legitimacy of preemption on the existence of an imminent threat ...". The Bush doctrine thus emerges as the following: "To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively".
To say that this notion of preemption lies on recognised international law is nonsense built on stilts. The source of where English language jurists have sought to give voice to the 'law' which gives a country the right to attack another in self- defence is to be found not in established law but in correspondence between the foreign ministers of Great Britain and the United States over the Caroline incident which took place on the Niagara River in 1837. In that correspondence, the British argued that their destruction of the Caroline, a US ship, was justifiable; this then was accepted by the US secretary of state, Daniel Webster, who recognised that self- defence could transpire in a preemptive manner if "that self- defense is instant, overwhelming, and leav[es] no choice of means, and no moment of deliberation".
Yet, such correspondence does not establish international law, nor have events since 1837 transpired so as to allow the Webster pronouncement to enter the corpus of the law of nations. As Professor Antonio Cassese, the first president of the International Criminal Tribunal for the former Yugoslavia (ICTY), has noted in examining the manner in which countries have reacted to claims of preemptive self-defence: "it is apparent that such practice does not evince agreement among States ... with regard to anticipatory self-defence". In other words, having examined previous cases in which states have sought to justify their use of force on the basis of preemptive self-defence, Cassese determines that there is a lack of consensus and as such no customary law has emerged with respect to the notion of preemption. Yet, jurists such as Malcolm Shaw in the introductory text International Law, is prepared to say that the "traditional definition of the right of self-defence in customary international law occurs in the Caroline case." It is on the back of such a faux consensus that the Bush doctrine lies.
The Bush doctrine, however, has not developed in a vacuum. It is but the final instance of the dismemberment of the UN system of the control of the use of force under the UN system which started to unravel in 1999. In essence, before the Kosovo crisis and the willingness of NATO to circumvent the Security Council, the limitations of the use of force were established -- self-defence or through the Security Council. Yet, through their actions, the NATO countries let the genie out of the bottle. By acting outside of the UN system, and predicating their intervention on a new pretext -- humanitarian intervention -- they sent the message that one need not act with UN Security Council approval. The consensus regarding NATO's intervention among international lawyers, including Anglo-American jurists, is that it was illegal -- tantamount to aggression. Yet, questions were raised: though illegal, was it not legitimate? Such was the conclusion of the Independent International Commission on Kosovo, a non-governmental body of eminent persons including the former prosecutor at the ICTY, Richard Goldstone, Princeton University Law Professor Richard Falk and the Palestinian leader Hanan Ashrawi.
This opening of the possibility for recourse to the use of force outside of the Security Council was further widened in the aftermath of the attacks of 11 September 2001, when the international community stood idle as the United States of America undertook its attack against Afghanistan with the tacit support of the United Nations. Shortly after 11 September, the UN Security Council recognised the United States' "inherent right of self-defence", thus giving it a green light to project force despite having been consistent for decades in establishing that self-defence is to take place on one's own territory -- not half-way around the world -- and not weeks after an attack has taken place.
The genie, having been let out of the bottle, could not be forced to return, hence the path which leads to the Bush doctrine.
It has been recognised for more than a century that the advances in the technology of warfare are such that there was a need for an international control over their use. History tells us that countries cannot be trusted, as too often aggression has been justified as 'humanitarian intervention' or 'preemptive self-defence'. The unwillingness of the United States to allow for the multilateral control of the UN Security Council with respect to Iraq has placed international relations back more than 100 years. But instead of the quaint warfare of the 1800s by balloons and horse-drawn artillery, we are confronted today with nuclear weapons and high-altitude bombers. The stakes today are extremely high, and without multilateral controls on the use of force, each country is left to its own devices to defend itself.
The Bush doctrine is bound to be replicated throughout the world. It has spawned at least one copycat -- the 'Howard doctrine' -- whereby Australia will not hesitate to use force (in preemptive self-defence, of course), its prime minister says, against Asian countries to avert an attack "either of a conventional kind or terrorist kind". If this is to multiply, then each country will fear an attack of its neighbour, which inevitably will bring in its wake arms races and growing tension. Countries may well seek out the 'North Korea Option' -- unable to depend on others, they will fend for themselves to the point of seeking out weapons of mass destruction.
The lead of the United States with respect to its actions regarding Iraq are nothing short of catastrophic. In carrying out its own agenda, the Bush administration has destroyed the Wilsonian dream of world peace through world law. While what is to befall Iraq is a tragedy, what will follow can only be worse. The international system now destroyed, a lawless society will emerge. In such a state of nature, where the law of the jungle holds and the strong will dictate, can we not expect, as Thomas Hobbes noted more than 300 years ago: that this era will be "beastly, brutal and short"?
* The writer is assistant professor of Public International Law at the American University in Cairo. He is a member of the editorial board of World Editorial and International Law.
Al-Ahram Weekly Online : 27 March - 2 April 2003 (Issue No. 631)
Located at: http://weekly.ahram.org.eg/2003/631/op53.htm