BangladesherDak Columns

From close encounters we know what a terrorist can do, but do we really understand what makes him tick or what turns a fanatic into a terrorist? Is he a madman or is he a psychopath or is there a hidden design behind his actions? If a fanatic is like those who resort to terror such as suicide bombing that not only targets the innocent but takes their own life is it possible to rationalise their actions? If we try, it could be that we shall have to delve into things that are too inexplicable for a simple mind because the pathological pattern of disregarding inconvenient reality is not just troubling -- it's deadly and frightening.

If democracy fails to bring stability, governments may resort to the use of repression and coercion, but this only serves to feed fanaticism and terrorism and destroys democracy Whenever there is a lack of democracy, fanaticism and terrorism flourish because an extreme ideology allows the extremists to take control. When a group of people met in Oslo last June, one of their findings was there was only a tenuous link between poverty and terrorism. Rather, they said, terrorism takes root when a lack of democracy is combined with an extremist ideology and a charismatic leader. Now that is an interesting theory as charismatic leaders are few and far between, especially in this country.

However we do know that inequities give rise to envy and this always becomes a problem for the state especially when inequity is the rule and not the exception. Moreover when social norms disintegrate and social cohesion breaks down, anarchy and terrorism are often inevitable. By urging the redress of injustices appropriated by terrorist groups the U.N. Secretary General told world leaders they must deal with the roots of the problem in order to be able to combat it. “Terrorism will only be defeated if we act to solve the political disputes or long-standing conflicts that generate support for it,” he said. (for) “if we do not, we shall find ourselves acting as recruiting sergeants for the very terrorists we seek to suppress."

Wise words but are we clear in our minds about our definition of fundamentalists, fanatics and terrorists? Or are they all one and the same? Or are they like Siamese triplets, one unable to exist without the other?

Perhaps a discussion on fanatics will shed some light or at least turn up some interesting facts. Among the telltale symptoms are an intolerance of dissent, a doctrine that is riddled with contradictions, the belief that one's cause has been blessed or even commanded by God, and the use of reinforcement techniques such as repetition to spread one's message. One essential feature is the certainty that not only is the fanatic”s cause good, "it is the only good, an absolute good." However as the absolute intolerance of dissent can lead to a "campaign of terror," even against those within their own ranks, this in itself is frightening.

According to Professor Dixon Sutherland a teacher at Stetson University, another crucial element of a fanatic's faith is that he "sees himself as acting for God... “ This he has in common with a fundamentalist who believes he has an ordained right to bring people back to the right path. But a fanatic has the advantage over a fundamentalist in that he has a well-rehearsed message that he can repeat over and over again. This he does because he knows repetition breeds blind acceptance. Unfortunately those of us most likely to be sucked in by such rhetoric are the educated unemployed generation who were raised on a promise of success and a secure job.

A clever and charismatic leader can all too easily capture the minds and souls of such a group because they do not have anything to lose. The question is, can democracy guard us against such leader? Kofi Annan, the U.N. Secretary General seems to think it can because, at the Fifth International Conference of New or Restored Democracies at Ulaanbaatar in Mongolia, he urged officials from participating countries to guard against economic and terrorist threats in building and maintaining democratic institutions. By saying that "recent experiences in a number of countries have shown that democratic processes still can - and do - suffer severe setbacks, and that such situations can create tensions leading to destabilisation and even violent conflict" it is clear that democracy is the only driving force of evolution towards a fairer world. But in fighting it we must not allow ourselves to become what we have fought against all these years because if we do, we shall lose everything for which we have fought.

If democracy is the driving force of evolution towards a fairer world, it can succeed only if it is used in conjunction with responsible government. All fledgling democratic processes will suffer setbacks that create tensions leading to destabilisation and violent conflict But as E M Cioran said, " the fanatic is incorruptible.” And herein lies the difficulty because he can kill for an idea, and can just as easily get himself killed for one; “in either case, tyrant or martyr, he is a monster,"

Finley Peter Dunne said, "A fanatic is a man that does what he thinks the Lord would do if He knew the facts of the case." But here again we are bordering between fundamentalism and a fanatic. "Fanaticism.” Edward Gibbon said, “obliterates the feelings of humanity." Or as Louis Kronenberger put it, "In the history of mankind, fanaticism has caused more harm than vice" such as those who blow up planes and so forth. but Storm Jameson sums it up best by saying, "Mere human beings can't afford to be fanatical about anything. Not even about justice or loyalty," because if "the fanatic for justice ends by murdering a million helpless people to clear a space for his law-courts” we have reached the end of sanity. If we are to survive on this planet, there must be compromises." But it was Napoleon Bonaparte who put the last nail in the coffin that warrants no argument. "There is no place in a fanatic's head where reason can enter."

ISLAMIC AND WESTERN CONCEPTIONSOF INTERNATIONAL LAW: COMMON FOUNDATIONS – DIVERSE PERSPECTIVES

I had originally intended that this section of my article would end at Part 3C with my conclusions on the ‘Islamic Response’ completing this stage on the laws of war under the United Nations security system. It was fortuitous that while reviewing the entire piece the 58^th session of the General Assembly commenced with some enlightening speeches by the Secretary General Kofi Annan and many world leaders who were directly involved in the decisions leading to the war in Afghanistan and Iraq. These debates have provided support to my thesis that the world dominated by one superpower with hegemonic ambitions and the ability to ignore the United Nations or use it to secure its objectives makes for an international law not worthy of its name. I have provided here some of the most pertinent parts of their speeches[i] dealing with human rights, pre-emptive war, regime change and unilateral military action. What is clear from many of the speeches is that while denouncing the United States for its unauthorized action in Iraq they propose changes to the United Nations Charter to provide more flexibility - presumably to make future actions such as happened in Iraq legal according to international law. On the other side, the US does not appear to show any remorse or regret for its use of force in Iraq outside the Security Council structure and uses very disingenuous language and adopts hypocritical moralizing to justify its point. The speech of the US president contains elements of pre-emptive and preventative war doctrines as well as a reintroduction of natural law theorizing that leaves open the door for a just war approach.

“Since this Organization was founded, States have generally sought to deal with threats to the peace through containment and deterrence, by a system based on collective security and the United Nations Charter. Article 51 of the Charter prescribes that all States, is attacked, retain the inherent right of self-defence. But until now it has been understood that when States go beyond that, and decide to use force to deal with broader threats to international peace and security, they need the unique legitimacy provided by the United Nations.

Now some say this understanding is no longer tenable, since an ‘armed attack’ with weapons of mass destruction could be launched at any time, without warning, or by a clandestine group. Rather than wait for that to happen, they argue, States have the right and obligation to use force pre-emptively, even on the territory of other States, and even while weapons systems that might be used to attack them are still being developed. According to this argument, States are not obliged to wait until there is agreement in the Security Council. Instead, they reserve the right to act unilaterally, or in ad hoc coalitions. This logic represents a fundamental challenge to the principles on which, however, imperfectly, world peace and stability have rested for the last fifty-eight years. My concern is that, if it were adopted, it could set precedents that resulted in a proliferation of the unilateral and lawless use of force, with or without credible justification.

But it is not enough to denounce unilateralism, unless we also face up squarely to the concerns that make some States feel uniquely vulnerable, and thus drive them to take unilateral action. We must show that those concerns can, and will, be addressed effectively through collective action… [We] must not shy away from questions about the adequacy, and effectiveness, of the rules and instruments at our disposal… The Council needs to consider how it will deal with the possibility that individual States may use force ‘pre-emptively’ against perceived threats. Its members may need to begin a discussion on the criteria for an early authorization of coercive measures to address certain types of threats – for instance, terrorist groups armed with weapons of mass destruction.”

“Events during the past two years have set before us the clearest of divides: Between those who seek order and those who spread chaos; between those who work for peaceful change and those who adopt the methods of gangsters; between those who honor the rights of man and those who deliberately take the lives of men and women and children, without mercy or shame. Between these alternatives there is no neutral ground. All governments that support terror are complicit in a war against civilization…

The former regimes of Afghanistan and Iraq knew these alternatives and made their choices. The Taliban was a sponsor and servant of terrorism. When confronted, the regime chose defiance and that regime is no more…The regime of Saddam Hussein cultivated ties to terror while it built weapons of mass destruction. It used those weapons in acts of mass murder and refused to account for them when confronted by the world. The Security Council was right to be alarmed.

The Security Council was right to demand that Iraq destroy its illegal weapons and prove that it had done so. The Security Council was right to vow consequences if Iraq refused to comply. And because there were consequences, because a coalition of nations acted to defend the peace and credibility of the United Nations, Iraq is free, and today we are joined by representatives of a liberated country…Across Iraq, life is being improved by liberty. Across the Middle East, people are safer because an unstable aggressor has been removed from power…

Our actions in Afghanistan and Iraq were supported by many governments, and America is grateful to each one. I also recognize that some of the sovereign nations of this assembly disagreed with our actions. Yet there was, and there remains, unity among us on the fundamental principles and objectives of the United Nations. We are dedicated to the defence of our collective security, and to the advance of human rights…

A second challenge we must face together, is the proliferation of weapons of mass destruction. Outlaw regimes that possess nuclear, chemical and biological weapons – and the means to deliver them – would be able to use blackmail and create chaos in entire regions. These weapons could be used by terrorists to bring sudden disaster and suffering on a scale we can scarcely imagine. The deadly combination of outlaw regimes, terror networks and weapons of mass murder is a peril that cannot be ignored or wished away. If such a danger is allowed to fully materialize, all words, all protests, will come too late, Nations of the world must have the wisdom and the will to stop grave threats before they arrive…

All the challenges I have spoken of this morning require urgent attention and moral clarity… As an original signer of the UN charter, the United States of America is committed to the United Nations. And we show that commitment by working to fulfill the UN’s stated purposes, and give meaning to its ideals. The founding documents of the United Nations and the founding documents of America stand in the same tradition. Both assert that human beings never be reduced to objects of power or commerce, because their dignity is inherent. Both recognize a moral law that stands above men and nations which must be defended and enforced by men and nations.”

“The United Nations has just weathered one of the gravest trials in its history. The debate turned on respect for the Charter and the use of force. The war, embarked on without Security Council approval, has undermined the multilateral system. Having taken stock of this crisis, our organization can now resume its onward march. For it is above all in this forum, which is the crucible of the international order, that it behoves us to exercise our responsibilities to the world of today and to future generations.

In an open world, no one can live in isolation, no one can act alone in the name of all, and no one can accept the anarchy of a society without rules. There is no alternative to the United Nations. But in the face of today’s challenges, this fundamental choice, as expressed in the Charter, calls for a far-reaching reform of our organization.

Multilateralism is the key, for it ensures the participation of all in the management of world affairs. It is a guarantee of legitimacy and democracy, especially in matters regarding the use of force or laying down universal norms... Multilateralism is a concept for our time: for it alone allows us to apprehend contemporary problems globally and in all their complexity. First of all, as a means to settle the conflicts that threaten international peace and security…

In Iraq, the transfer of sovereignty to the Iraqis, who must have sole responsibility for their future, is essential for stability and reconstruction. It is up to the United Nations to give legitimacy to this process. It is also up to the United Nations to assist with the gradual transfer of administrative and economic responsibilities to the present Iraqi institutions according to a realistic timetable and to help the Iraqis draft a constitution and hold elections. Lastly, it is up to the United Nations to give a mandate to the multinational force, commanded naturally by the main troop contributor, in order to ensure the security of Iraq and all those helping with the country’s reconstruction…

It is the role of the [Security] Council to set the bounds to the use of force. No one is entitled to arrogate to himself the right to utilize it unilaterally and preventatively. Conversely, in the face of mounting threats, states must have an assurance that the Council has appropriate means of evaluation and collective action at its disposal, and that it has the will to act. We all place a high premium on national sovereignty. But its scope can and must be limited in cases of gross violations of human rights and humanitarian law…

Against the perils of a clash of civilizations, finally, let us insist on the equal dignity of all cultures, respect for diversity, and the importance of dialogue.”

“What makes Iraq so important was the way it tested the role and purpose of this institution over more than a dozen years. The international community remained in agreement throughout that the regime of Saddam Hussein posed a Chapter VII threat to international peace and security by its proliferation of weapons of mass destruction programmes, and its unparalleled defiance of the will of the United Nations. Yet we divided on when and what action was necessary to deal with the threat.

Of course I acknowledge the controversy over the military action we took, and the heavy responsibilities we now bear. But I firmly believe that the decision we took was the right one. The authority of the United Nations was at stake…

We shall stay in Iraq as long, as it is necessary to meet our clear responsibilities; and to restore sovereignty to the Iraqi people as quickly as we can in an orderly manner. I hope that we can agree a new Security Council Resolution to strengthen the UN’s role in Iraq. In managing this transition, we should be guided by three central principles:

- first, the transfer of powers must reflect realities on the ground in Iraq, particularly the need to ensure security;

- second, the Iraqi institutions must be sufficiently robust to take on increasing responsibilities;

- and third, the exercise of executive powers and responsibilities must be based on good governance, involving representative Iraqi authorities and coherent constitutional arrangements.

In other words, the timetable should be driven by the needs of the Iraqi people and their capacity progressively to assume democratic control, rather than by fixing arbitrary deadlines…

The most important part of the Secretary General’s speech was about the choices now confronting the UN. He is right. We have indeed come to a fork in the road. Down one route lies a world in which the United Nations strengthens its role as the collective instrument for protecting our peace and security. Down the other route lies a world in which ‘collective action’ becomes a synonym for ‘inaction’. We must not take this second route. The Secretary General’s speech was a challenge to us all. We all share a world in which international terrorists strike down the innocent regardless of faith or nationality, and we are also less secure when weapons of mass destruction are in reckless hands. We do not have the luxury simply of rejecting unilateralism, while proposing no multilateral means of confronting these threats.”

“To be sure, the United Nations – as any system with complex organization – needs improvement. But the problems of the United Nations – both past and present – have not been just the problems of this organization per se. Each time they were produced by and continue to reflect contradictions within the very system of international relations. And above all, within the system of international law… As long as the norms of international law remain unaltered, as long as they are operative, it is our duty to observe them. It is our duty to ensure continuity of security guarantees for the States and the planet as a whole…

We should counter the present-day threats to civilization only through collective responses whose legitimacy is not in doubt. We need a systematic vision combining political and, when necessary, military measures. These measures should be coordinated, reasonable and adequate… The proliferation of weapons of mass destruction and their delivery means remains a serious challenge to the modern world. The most dangerous challenge is when they get into the hands of terrorists. The ways of eradicating these threats are well-known. These include further universalization of the existing non-proliferation regimes, the strengthening of international verification instruments, and the introduction of safe technology in nuclear production and energy. By and large, it is renunciation by States of excessive arsenals and military programmes capable of undermining the politico-military balance and trigger an arms race.”

“At a moment like this, people are inescapably pondering on the same question: in the interest of world peace and common development, what kind of new world order should we establish in the 21^st century? China is of the view that the future well-being of mankind hinges on closer international cooperation, multilateralism and world multi-polarization.

- We should promote democracy in international relations. Multi-polarization does not mean backpedaling into the age of sphere of influence, nor a replay of the long-gone major power rivalry. It simply means to bring about a new regime of international relations under which all countries, big or small, rich or poor, strong or weak, are treated as equals, and no other country has the right to impose its will on others.

- We should cultivate a new security concept featuring mutual trust, mutual benefit, equality and cooperation. Security should be maintained through cooperation and disputes resolved peacefully through dialogue. Frequent use or threat of force should be avoided and building one’s own security at the expense of other rejected.

- We should support diversity in the mode of development. Our world is a place of many colors and styles. One musical note cannot make a melody or a phonetic alphabet a language. Human wisdom has produced so many civilizations, allowing us to follow different paths of development and a variety of values. It is in such exchanges, emulation and integration of diverse cultures that human reason and wisdom illuminate brilliantly.”

When television “soap operas” came into the lives of the people of Bangladesh in the1970s they soon proved to be just as addictive as anywhere else. Soon we were hooked on them and it has been this way ever since. At that time the Bangladeshi “soaps” reigned supreme and women would organise their days around these "stories. Bangladeshi society like many other societies took up the genre and made it their own. “Shakal Shandha” and similar programmes became favourites and an essential ritual in an otherwise dull life. But though they were intended to be about ordinary lives of ordinary people in ordinary places, it was quite extraordinary how many affairs, surprise appearances and disappearances, exotic diseases, afflictions of amnesia, murders, kidnappings and frauds could befall such a small number of characters.

Undoubtedly the most popular television programmes today are the “soap operas.” No matter the place of production, no matter the language, come evening, most people will be glued to their sets. The first ones were broadcast over radio were not called “soap operas” but serial dramas and only when they were largely sponsored by soap companies were they given the name of “soap operas.

When it all began back in 1920, they were mostly simple stories for the family. At first they did not catch on as they were broadcast during prime listening hours when men were the main listeners, but when the radio stations shifted them to the off-peak morning hours, they found a welcoming audience in housewives. The producers soon found the “soap operas” had an uncanny appeal to women who listened to them while they worked. But no one stopped to think of their effect on society and their effect on children and one can only wonder if these simple story lines really reflected their times or did they impose on listeners the writer’s interpretation of what he saw around him?

As “soap operas” have been around for so long most of us have forgotten their modest origin but with a history that dates back less than 83 years it is possible to trace the social development of nations through them. To what extent the characters, settings and story lines of the “soap operas” presented the authentic renderings of the mood of their times is an interesting hypothesis and what relation they had to the lives we once led would be revealing.

During the 1920s “soap operas” were mostly centred around well-balanced family life and family relationships and as such were little cause for concern. Over the years however the content and direction of “soap operas” underwent a radical change, and many of their images could be cause for alarm as instead of the benign family relationships, they projected family conflicts, violence against women, and crime and corruption. Although these gave children the wrong perspective on marriage and family life, viewers were too enthralled with them to notice. In other words, if the “soaps” no longer reinforced the image of the family as a unit of strength, nobody cared.

In retrospect they did seem to be an integral part of our world. Their views and their values, their shortsightedness and their innocence was that of the age. What was not so innocent was of the age too, but as some of these dramas soon took up matters rarely permitted on television such as marital breakdown, frigidity, extramarital sex, alcoholism, professional malpractice, etc. they did so within well-defined boundaries. And though these serials featured many transgressions of traditional values, it was unthinkable (unethical?) to question those values. Their disasters and tragedies were due to natural disasters or human failings, but there was nothing wrong with God, marriage, and motherhood. As this was by and large what most people naively believed, the “soap operas” maintained their status as family entertainment.

Although the “soap opera” was still considered a conservative form of entertainment produced by an extremely conservative and confident society their grandiose titles suggested otherwise yet their underlying philosophy consisted of intellectually empty, declarations. The characters were drawn larger than life and were embodied with exaggerated traits of good and evil but although this formula was to stay, the times were changing and the “soap operas” changed with them and began to demonstrate the struggle between liberal and conservative views and values that were then playing themselves out. The result was that the “soaps” were given an overhaul.

Many were firmly modernising their mission while giving a sensitive and sympathetic expression to traditional values but as society does not always respond well to having their values challenged, many series became steeped in controversy. Yet by the late 1970s, liberal views and values were already struggling against conservative forces and though the best “soaps” that came our way dramatised this struggle, the producers never really pushed for a more radical approach and did not therefore face a backlash. But slowly over time the liberal consensus lost its drive and its verve. Traditionalist forces were no longer as strong as they were, and significant liberal values are finding acceptance nevertheless society is deeply divided and today holds more and varied views and values than previously. Today’s global society is a more complex and confused society, a society in which the battle lines are not so clearly drawn, a society that seems unable to portray itself dramatically and though the “soap operas” we now watch are more stylish and technically sophisticated, they portray a society that is more complex than our own and viewing them can be confusing.

Countries that learned early that “soap operas” were good vehicles for propaganda were well ahead of the game. They incorporated social messages into their content but even so exercised caution and in general followed the well-defined conventions of “soap operas.” But this has resulted in too much caution as few serial dramas break with convention long enough to make one evaluate one’s thoughts/ Nor do they engage in a more penetrating scrutiny of the human psyche. With no intellectual, emotional or moral edge to them, no great thirst for truth or justice, no deep searching of the soul, no challenge to the status quo, they have nevertheless carved a niche into our hearts.

Whether or not they will be able to develop in new directions and become the cutting edge of contemporary society is doubtful for the die has already been cast. Rather than cut new ground the “soap opera” has tended to be content with recycling all the standard cliches. But there is authentic drama in peoples” lives which is far more dramatic than anything shown on television. If well written, the addition of such characters would show the structure of the social order in terms of the rhythm of everyday lives. Unfortunately no one wants to step outside the boundaries of convention and such subjects have remained taboo. Dealing with the more intricate social matters has therefore been left to the novelists and playwrights. So unless writers of “soap operas” can overcome their reluctance to dramatise serious social issues, we will have to be content with the “soap operas” that have their roots in conventional society.

The point is, are we ready to accept a new kind of “soap opera” that shows the structure of the social order or one that probes the human psyche as it shaped by that order? Some think so and many are chaffing at the bit but the average viewer is quite happy to let things go on as they are and the only concession to modern times is that many popular “soaps” have their own web pages where fans can keep pace with current - and future - happenings.

ISLAMIC AND WESTERN CONCEPTIONS OF INTERNATIONAL LAW COMMON FOUNDATIONS – DIVERSE PERSPECTIVES – Part 3A

Part 3C: The War in Iraq

In his televised addressed to the nation on March 17, 2003, President Bush had only to refer back to the two years of resolutions adopted in the Security Council and General Assembly to convince the American public for the necessity of war in Iraq. The only thing that the United Nations could not give the United States was acknowledgement of a preventative or preemptive war doctrine contrary to the principles and purposes of the United Nations and the Charter, “The danger is clear. Using chemical, biological or, one day, nuclear weapons, obtained with the help of Iraq, the terrorists could fulfill their stated ambitions and kill thousands or hundreds of thousands of innocent people in our country or any other … The United Nations Security Council has not lived up to its responsibilities, so we will rise to ours.”[i] The only thing missing from this stage-managed operatic production are the posters of ‘Big Brother’ on the walls and corridors of the Security Council and the General Assembly.

It appears from the previous discussion that the entire membership of the Security Council were railroaded[ii] into adopting two highly contentious resolutions[iii] that on a fair interpretation allows for preventative war against states that allegedly sponsor terrorist organizations or are said to harbour and aid such terrorist groups and entities or provide safe-haven for them within their territory. The mere allegation of sponsoring or harbouring of terrorists now seems to automatically constitute a threat to international peace and security permitting a state to use a tendentious interpretation of Article 51 of the Charter to unilaterally employ military force in the name of individual or collective self-defence. Alongside this acceptance of preventative war doctrine within the Security Council has come the notion of regime change which has no foundation in the purposes and principles of the United Nations but now appears regularly in the speeches of several important figures in the Bush administration[iv] and in one recent resolution emanating from the Security Council. To offset this particular objection resolution 1378 (2001) of 14 November 2001, initially expresses its support for international efforts to root out terrorism, in keeping with the Charter of the United Nations and then goes on to condemn the Taliban for allowing Afghanistan to be used as a base for the export of terrorism by the Al-Qaida network and for providing safe haven to Usama Bin Laden. In this context the resolution declares its support for the efforts of the Afghan people to replace the Taliban regime. That there is no basis for the contention that rooting out terrorism is an original element of the Charter (but in fact a mere add-on or appendage) does not seem to have prevented the passing of the resolution.

One may legitimately question whether it was in fact the Afghan people that rose up in an armed rebellion against their rulers (theoretically leading to unpredictable consequences for any future occupiers) or whether the United States and its allies fomented a planned and sustained attack on the Taliban regime all by themselves. The purpose in this military onslaught according to many commentators was to support (or instigate) the efforts of the Afghan people to establish a new and transitional administration leading to the formation of a government in the ultimate keep and control of the United States.[v] With the quick conclusion of the Afghanistan war the Security Council continued to issue resolutions on terrorism but in one specific case with a new and modified mantra that acts of international terrorism constitute one of the most serious threats to international peace and security in the twenty-first century.[vi] America’s eyes were now keenly set on Saddam Hussein and Iraqi oil and a plausible ground for war was being manufactured with regime change as the most desirable outcome.[vii] As Martin Jacques of The Observer explains, “It should be remembered that at the time of the first Gulf War, ‘regime change’ was an entirely unacceptable proposition, breaching as it did the accepted conventions concerning sovereignty: the first Bush administration recognized this by not taking Baghdad … Perversely, while the First Gulf War was fought in defence of the principle of sovereignty – Kuwait’s – the second was about precisely the opposite, the rape of Iraq’s.”[viii]

It has already been mentioned the circumstances in which the Gulf War of 1991 was initiated but the events after the ending of military hostilities have still to be explained and elaborated upon as it has a large bearing on the subsequent steps (or lack thereof) taken by the United States and the Security Council that led to the war in Iraq in the summer of 2003. As the reader may recall, a temporary cease-fire was detailed in Security Council resolution 686 of March 2, 1991 by which Iraq accepted liability for any damage caused by the invasion and agreed to rescind its annexation of Kuwait.[ix] A formal ceasefire was established by Security Council resolution 687 of April 3, 1991.[x] This resolution sets the scene for what was to take place in the Security Council almost 12 years later that culminated in the violation of Iraq’s sovereignty essentially without the approval of the Council and the open objections of three permanent members (France, Germany and Russia).

Resolution 687 (1991) welcomed the restoration to Kuwait of its sovereignty, independence and territorial integrity and the return of its legitimate government while setting into train a series of events that was to take away Iraq’s own sovereignty, independence and legitimate government more than a decade later.[xi] The resolution went on to reaffirm the need to be assured of Iraq’s peaceful intentions in the light of its unlawful invasion and occupation of Kuwait. Ironically this is something that the United States is now finding difficulty in getting a grip on with the almost daily attacks on its soldiers by Iraqi and supposedly foreign irregulars and terrorists within a month of declaring an end to the Iraq war and the beginning of its illegal invasion and occupation of that country in May 2003. The resolution then recalls the objective of the establishment of a nuclear-weapon-free zone in the regions of the Middle East but hypocritically the Security Council has never brought Israel to task for its alleged possession of such weapons nor called or far less demanded inspections of military sites in that country. The resolution then goes on to deplore threats made by Iraq during the Gulf War to make use of terrorism against targets outside Iraq and the taking of hostages by that country. Although it was never established whether Saddam Hussein had any links with Usama Bin Laden this issue was played up in the US media before the Iraq war to complete disbelief and incredulity in the rest of the world because of the public and open hostility between the two men and in their belief in two completely different sets of ideologies and personal goals.

Acting under Chapter VII of the Charter, resolution 687 (1991) decided that Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision: (a) All chemical and biological weapons and all stocks of agents and all research, support and manufacturing facilities related thereto; (b) All ballistic missiles with a range greater than one hundred and fifty kilometers, and related major parts and repair and production facilities. The resolution also sought the forming of a special commission (UNSCOM) which would carry out immediate on-site inspection of Iraq’s biological, chemical and missile capabilities, based on declarations and the designation of any additional locations by the special commission itself. It was also decided that Iraq would unconditionally agree not to acquire or develop nuclear weapons or nuclear-weapon-usable material or any subsystems or components or any research, development, support or manufacturing facilities related to the above. It was the common refrain during the whole of the 1990’s that Iraq had failed to cooperate fully with UN weapons inspectors and to meet all its other obligations under resolution 687.[xii] As a result, UN sanctions imposed by resolution 661 on Iraq remained in place. In 1996, however, a ‘food for oil’ deal was agreed by which Iraq was permitted to sell a limited amount of oil to buy food, medicines and other humanitarian goods. This turned out not to be a panacea for Iraq’s misfortunes and the suffering of the Iraqi people were not greatly alleviated due to US and UK obstructionist tactics.[xiii]

According to estimates provided by the UN’s own agencies over 600,000 children under five had died up to 1998 as a direct consequence of the sanctions regime imposed on Iraq. UNICEF reported that 6000-7000 children were dying each month because of malnutrition and curable diseases for which they have no treatment. This in a country that could once boast a health care system comparable to the West and one of the most advanced in the region.[xiv] That the United States government was aware of these facts was without doubt but they continued to manipulate the weapons inspections program to extend their duration and intensiveness is revealed by a former UN weapons inspector Scott Ritter, “Not too many people speak of the struggle between the weapons inspectors and the U.S. to beat back the forces of U.S. intelligence which were seeking to infiltrate the weapons inspectors program and use the unique access the inspectors enjoyed in Iraq for purposes other than disarmament. Iraq has a clear case that under this past inspection regime unfortunately it was misused for purposes other than set out by the Security Council resolution.”[xv]

It was due to these reasons, inter alia, that Iraq on 5 August 1998, suspended inspections by UNSCOM and the nuclear inspection teams searching for illegal weapon sites. Iraq had charged that the UNSCOM teams include too many Americans and Britons and that some of them are spies. The Iraqi government requested that the Security Council should take decisive measures to sack the chairman of the U.N. Special Commission, Richard Butler,[xvi] and restructure UNSCOM in such a way as to make it a neutral international body. Some observers at the time claimed that the Iraqis had taken this decision in reaction to a Security Council decision to review the country's compliance with U.N. resolutions - without guaranteeing that this would lead to the lifting of trade sanctions.[xvii] It may have been due to these pleas and the negotiating skills of the Clinton administration that full scale war[xviii] was averted and the Security Council in resolution 1284 (1999) of 17 December 1999, decided to establish, as a subsidiary body of the Council, the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC), which replaced the controversial special commission (UNSCOM) set up under resolution 687. There was even a commitment in paragraph 33 of resolution 1284 of the sale, supply and delivery to Iraq of civilian commodities and products with the fundamental objective of improving the humanitarian situation in Iraq and securing the implementation of the Council’s resolutions but with stringent conditions attached.

As with most things of this nature inspections only resumed after November 27, 2002 during which further sporadic negotiations continued between the Iraqi government and the United Nations over the read-mission of inspectors.[xix] During much of this period the Iraq issue went literally to sleep in the Security Council with a few resolutions passed simply monitoring the situation in Iraq or updating and amending previous resolutions as the need arose.[xx] From 29 November 2001 to 8 November 2002[xxi] the Iraq issue was off the agenda in the Security Council and was replaced by the attacks on 11 September 2001, the Taliban, Usama Bin Laden, terrorism and Afghanistan.[xxii] It was left to the General Assembly to formulate and guide the conditions under which the United States was destined to go to war in a unilateral, preventative use of military force against a ‘rogue regime’ seeking or possessing weapons of mass destruction.[xxiii] Several resolutions inextricably linked together in the public mind the idea of terrorism with weapons of mass destruction, human rights and regime change building up a case for war in Iraq not only within the United Nations but also in the world’s media.[xxiv] Taken individually each resolution is a consistent and commendable exercise in persuading states to follow acceptable rules of conduct in reference to matters of extreme importance but taken together they can be made to mean and justify anything at all and used for any purpose whatsoever.[xxv]

Either as a result of or in anticipation of further resolutions emanating from the General Assembly the Security Council led by the United States and the United Kingdom issued a very stern reprimand against the Iraqi government in the form of resolution 1441 (2002) of 8 November 2002. Recognizing Iraq’s non-compliance with Council resolutions and proliferation of weapons of mass destruction and long range missiles and the threat this poses to international peace and security it deplored the fact that Iraq had not provided an accurate, full, final, and complete disclosure, as required by resolution 687 (1991), of all aspects of its programmes to develop weapons of mass destruction and ballistic missiles. Significantly this language appears to have been lifted straight from several General Assembly resolutions passed on the same subject and assembled in a way to fit the needs of the moment.

The resolution deplored further that Iraq repeatedly obstructed immediate, unconditional, and unrestricted access to sites designated by UNSCOM and the IAEA and failed to cooperate fully and unconditionally with the weapons inspectors as required by resolution 687.[xxvi] Most importantly, it deplored that the Government of Iraq had failed to comply with its commitments pursuant to resolution 687 with regard to terrorism. Acting under Chapter VII of the Charter the resolution decided that Iraq had been and remained in material breach of its obligations under relevant resolutions and that Iraq was being afforded a final opportunity to comply with its disarmament obligations. False statements or omissions in the declarations submitted by Iraq pursuant to the resolution and failure by Iraq to comply with, and cooperate fully in the implementation of the resolution would constitute a further material breach of Iraq’s obligations. The resolution recalled finally that the Council had repeatedly warned Iraq that it would face serious consequences as a result of its continued violations of its obligations.[xxvii]

In a rash[xxviii] effort to link the Al-Qaida network to the Saddam Hussein regime or at least to instill fear in the publics mind of the likelihood and consequences of such a link the General Assembly on 22 November 2002 adopted resolution 57/83. The resolution expressed its deep concern at the growing risk of linkages between terrorism and weapons of mass destruction and emphasized that progress is urgently needed in the area of disarmament and non-proliferation in order to help maintain international peace and security and to contribute to global efforts against terrorism.[xxix] The Security Council followed suit with resolution 1456 (2003) of 20 January 2003 which adopted a declaration on the issue of combating terrorism formulated by a meeting of Ministers of Foreign Affairs held on the same date. The resolution reaffirmed that there was a serious and growing danger of terrorist access to and use of nuclear, chemical, biological and other potentially deadly materials, and therefore a need to strengthen controls on these materials. It appealed in particular to those technical agencies and organizations (presumably UNMOVIC and the IAEA working in Iraq) whose activities relate to the control of the use of nuclear, chemical, biological and other potentially deadly materials and in this context of the importance of fully complying with existing legal obligations in the field of disarmament, arms limitation and non-proliferation - matters that had become of urgent concern in the case of Iraq and was the defining cause for going to war.

A further resolution from the Security Council after 1441 (2002) finding Iraq in material breach of its obligations and essentially informing Saddam Hussein that he was out of time was pushed aggressively by the United States the United Kingdom and Spain to intense opposition from France[xxx], Germany, Russia, China, Syria and Pakistan. From February 24 to March 16 there occurred a battle of draft resolutions between the two groups with one side trying to give more time to inspections and the other calling for the use of force to be authorized. The first of these proposals was in consonance with the findings of the weapons inspectors and the head of the IAEA Mohamed El Baradei that ‘after three months of intrusive inspections, we have to date found no evidence or plausible indication of the revival of a nuclear-weapons program in Iraq.’ A final push to avert war was attempted by the French on March 16 offering Saddam Hussein thirty more days to comply was summarily rejected by the United States.[xxxi]

In his televised addressed to the nation on March 17, 2003, President Bush had only to refer back to the two years of resolutions adopted in the Security Council and General Assembly to convince the American public for the necessity of war in Iraq. The only thing that the United Nations could not give the United States was acknowledgement of a preventative or preemptive war doctrine contrary to the principles and purposes of the United Nations and the Charter, “The danger is clear. Using chemical, biological or, one day, nuclear weapons, obtained with the help of Iraq, the terrorists could fulfill their stated ambitions and kill thousands or hundreds of thousands of innocent people in our country or any other … The United Nations Security Council has not lived up to its responsibilities, so we will rise to ours.”[xxxii] The only thing missing from this stage-managed operatic production are the posters of ‘Big Brother’ on the walls and corridors of the Security Council and the General Assembly.

At 9:35 P.M. Eastern Standard Time in Washington D.C. on March 19, the first American bombs fell on Baghdad.[xxxiii] After the first few days of the war the Security Council in resolution 1472 (2003) of 28 March 2003 referred to an Occupying Power in Iraq (presumably the United States and the United Kingdom) with humanitarian responsibilities and then inexplicably reaffirmed the respect for the right of the people of Iraq to determine their own political future (a possible allusion to regime change) and to control their own natural resources (wishful thinking).[xxxiv] That the Iraqi people would never have any say in the utilization and exploitation of their natural resources was confirmed in what appears a conspiratorial and cynical statement of 12 April 2003 by the Ministers of Finance and Central Bank Governors of the Group of Seven Industrialized Nations in which the members recognized the need for a multilateral effort to help rebuild and develop Iraq and for the need for assistance from the International Monetary Fund and the World Bank in these efforts. [xxxv]

Much of what was contained in resolution 1441 (2002) flies in the face of the reports and letters prepared and submitted to the Security Council by Hans Blix (Executive Chairman UNMOVIC) and Mohamed El Baradei (Director General IAEA).[xxxvi] It was only revealed after the war that Mr. Blix felt Washington was intimidating him to produce reports that would justify military action against Iraq. In an interview on BBC television’s Hardtalk, IAEA Director General Mohamed El Baradei also said he believed Iraq had not tried to revive its clandestine nuclear weapons program as the United States and Britain insisted.[xxxvii] Hans Blix most recently attacked the "spin and hype" behind U.S. and British allegations of banned Iraqi weapons used to justify war against Saddam Hussein. He believed Iraq had destroyed its weapons of mass destruction 10 years ago[xxxviii] which would be in conformity with the slogan put out by the web site ‘britain, unscom and iraq’ which claims that UNSCOM had destroyed more weapons than were destroyed during the whole of the Gulf War.[xxxix] Taken in its legal context and in the background of preventative war these are damaging allegations implicating the entire United Nations system.

Before ordering the invasion that toppled Saddam Hussein, ‘President Bush talked of an imminent threat posed by Iraqi weapons as a prime justification for war. Blair put Saddam's alleged weapons program at the heart of his case for supporting the U.S. invasion of Iraq in March. But five months after Saddam's overthrow, no banned weapons have been found’.[xl] All these deceptions, fabrications and ruses have been to serve US policy objectives in Iraq (aided in large part by a decrepit and increasingly irrelevant United Nations body) premised on three assumptions identified by Gerard Powers (director of the Office of International Justice and Peace of the US Conference of Catholic Bishops): (1) the United States has a right to use preventative force against Iraq; (2) the objective of US military action should be the overthrow of the Iraqi regime; and (3) the United States has a right to act unilaterally if others are not willing to do as it deems necessary.[xli]

The reaction of Muslims around the world has been swift, violent and devastating. This is not merely as a response to the occupation of Iraq but to centuries of perceived oppression, subjugation and exploitation that has culminated in this latest phase involving regime change in Iraq and Afghanistan. Muslims are aware that preventative war or just war doctrine are merely procedural and legal justifications for obtaining a stated goal or policy and furthering certain national interests. They have come to realize through experience that international law practiced through the United Nations is a mere façade and the last two years have done nothing to dissuade them of this opinion. The fact that the United States is now turning to the United Nations to create a multilateral security force in Iraq does not necessarily fill Muslims with optimism since it is widely felt that the view of the UN as an impartial arbiter of international disputes is a carefully cultivated illusion designed to deceive.[xlii] This in some way provides an explanation (but not a justification) for the 19 August 2003, truck bombing of the UN headquarters in Baghdad that killed the Secretary General’s Special Representative Sergio Vieira de Mello: for many Muslims the UN symbolizes everything that has gone wrong in the Muslim world since 1947 and the artificial creation of Israel.[xliii] The Muslim’s efforts in articulating a response to these set backs and defeats has in the most part focused not on international institutions and organizations or governments which they deem as inherently biased and prejudiced against them but direct to the American public and the world. Probably the most intelligent and inspiring of the Islamic responses has come from Usama Bin Laden in reply to ‘What We’re Fighting For: A Letter From America’ published by the Institute for American Values in February of 2002:

“[The] American people are the ones who choose their government by way of their own free will; a choice which stems from their agreement to its policies. Thus the American people have chosen, consented to, and affirmed their support for the Israeli oppression of the Palestinians, the occupation and usurpation of their land, and its continuous killing, torture, punishment and expulsion of the Palestinians. The American people have the ability and choice to refuse the policies of their Government and even to change it if they want … The American people are the ones who pay the taxes which fund the planes that bomb us in Afghanistan, the tanks that strike and destroy our homes in Palestine, the armies which occupy our lands in the Arabian Gulf, and the fleets which ensure the blockade of Iraq. These tax dollars are given to Israel for it to continue to attack us and penetrate our lands. So the American people are the ones who fund the attacks against us, and they are the ones who oversee the expenditure of these monies in the way they wish, through their elected candidates.”[xliv]

Although the above quoted portion of Usama Bin Laden’s letter would appeal to most Muslims the remaining sections do not provide a realistic programme of action except for a few very committed and dedicated adherents to his particular brand of Islam. At this point in time the only Muslim leader whose opinions attract overwhelming acceptance and support by the vast majority of Muslims would be Prime Minister Mahathir Bin Mohamad. In his most recent speech he expresses the frustration of many: “(As) Muslims (we) must be prepared to defend ourselves, it is quite clear that we are not prepared for the time being as we do not have the knowledge to fight the enemy.” Dr Mahathir said Muslims worldwide had neglected to gain knowledge about other disciplines due to the misinterpretation of Islam by some who preached “that to gain knowledge was to gain knowledge in Islam and nothing else. “Islam enjoins the learning and acquiring of knowledge. The early Muslims acquired the knowledge and expanded on it...they were good scholars in the early days especially in the field of science and maths,” he added. He said some interpreters of Islam had said that the knowledge gained by a Muslim should be knowledge on religion and Islamic jurisprudence and this made Muslims less capable in all other fields that they once used to master. He said Islam was not just a religion but also a way of life but “now are we going to say that the Muslim way of life is living in misery, being oppressed and (to) beg. I don’t think so.”[xlv]

This is a point very relevant to the decline of an Islamic international law and to Islamic society in general that has occurred over the last two centuries: a matter that will be the subject for the final part of this article.

Michael Akehurst – ‘A Modern Introduction to International Law’ (Sixth Edition)

Institute of American Values – ‘What Were Fighting For – A Letter From America’ (February 2002)

United States Institute of Peace – ‘Would an Invasion of Iraq be a ‘Just War’’ (Special Report)

Project For The New American Century – Statement of Principles (June 3, 1997)

Micah L. Sifry and Christopher Cerf – ‘The Iraq War Reader: History, Documents, Opinions’ (Touchstone 2003)

[i] The Iraq War Reader pg. 503-504.

[ii] or should that be press ganged

[iii] resolution 1368 (2001) and 1373 (2001)

[iv] ‘An Open Letter to President Clinton: ‘Remove Saddam From Power’’ (January 26, 1998) Project for the New American Century; Nicholas Lemann – ‘The Next World Order’; Senator John McCain – ‘Iraq’s disarmament is impossible without regime change’ all articles can be found in The Iraq War Reader (Sifry & Cerf);

[v] for further details see resolution 1383 (2001) of 6 December 2001; 1386 (2001) of 20 December 2001; 1388 (2002) of 15 January 2002; 1390 (2002) of 16 January 2002; 1401 (2002) of 28 March 2002; 1413 (2002) of 23 May 2002; 1419 (2002) of 26 June 2002; 1444 (2002) of 27 November 2002; 1453 (2002) of 24 December 2002; See also Brisard and Dasquie – ‘Bin Laden, the Forbidden Truth’.

[vi] S.C. Resolution 1377 (2001) of 12 November 2001; see also – 1438 (2002) of 14 October 2002; 1440 (2002) of 24 October 2002; 1450 (2002) of 13 December 2002; 1455 (2003) of 17 January 2003.

[vii] President George W. Bush – State of the Union Speech (January 29, 2002)

[viii] The Observer, London, May 25, 2003; Holiday (Friday, June 6, 2003)

[ix] D.J. Harris – ‘Cases and Materials on International Law’ (1998).

[x] See S.C. resolutions 660 (1990) of 2 August 1990; 661 (1990) of 6 August 1990; 662 (1990) of 9 August 1990); 664 (1990) of 18 August 1990; 665 (1990) of 25 August 1990; 666 (1990) of 13 September 1990; 667 (1990) of 16 September 1990; 669 (1990) of 24 September 1990; 670 (1990) of 25 September 1990; 677 (1990) of 28 November 1990; 678 (1990) of November 1990 and 686 (1991) of 2 March 1991.

[xi] If Kuwait’s government can be described as legitimate than it is arguable that Iraq’s government under Saddam Hussein was no less legitimate as both were and are undemocratic and authoritarian.

[xii] S.C. resolutions 699 (1991) of 17 June 1991; 707 (1991) of 15 August 1991; 715 (1991) of 11 October 1991; 986 (1995) of 14 April 1995; 1051 (1996) of 27 March 1996; 1153 (1998) of 20 February 1998; 1175 (1998) of 19 June 1998; 1242 (1999) of 21 May 1999 and 1266 (1999) of 4 October 1999.

[xiii] D.J. Harris pg. 963; Brown and Toensing – ‘A Backgrounder on Inspections and Sanctions’ in The Iraq War Reader (Sifry & Cerf).

[xiv] A.S.M. Shahidul Haque – Sanctions against Iraq – Double Standards of UN (Holiday (2001); UN Security Council Panel on Humanitarian Issues noted: “Even if not all suffering in Iraq can be imputed to external factors, especially sanctions, the Iraqi people would not be undergoing such deprivations in the absence of the prolonged measures imposed by the Security Council and the effects of war.” Brown and Toensing – ‘A Backgrounder on Inspections and Sanctions’ in ‘The Iraq War Reader’ (Sifry & Cerf).

[xv] MASSIMO CALABRESI – ‘Exclusive: Scott Ritter in His Own Words’ TIME Online Edition (Saturday, Sep. 14, 2002)

[xvi] Richard Butler – ‘The Inspections and the UN.: The Blackest of Comedies’; Susan Wright – ‘The Hijacking of UNSCOM’ (both in ‘The Iraq War Reader’ (Sifry & Cerf))

[xvii] CNN.com – ‘Annan: Iraqi non-cooperation violates U.N. resolutions’ (October 31, 1998); Brown and Toensing – ‘A Backgrounder on Inspections and Sanctions’ in The Iraq War Reader (Sifry & Cerf).

[xviii] The Desert Fox Campaign of December 16, 1998 appears to have been an attempt by President Bill Clinton to divert the American public’s attention away from the Monica Lewinsky scandal and the impeachment vote of the House of Representatives. President Clinton’s signing of the Senate Joint Resolution 54 on August 14, 1998, which declared that, “the Government of Iraq is in material and unacceptable breach of its international obligations’ (Public Law 105-235) could be seen in the same light but the Presidents adoption of the Iraq Liberation Act on October 31, 1998 calling for regime change in Iraq seems to have been an unacceptable appeasement of the hawks in the Republican Party simply to save his presidency. (See The Iraq War Reader).

[xix] Brown and Toensing (The Iraq War Reader pg. 167).

[xx] S.C. resolutions 1330 (2000) of 5 December 2000; 1352 (2001) of 1 June 2001; 1360 (2001) of 3 July 2001; 1382 (2001) of 29 November 2001.

[xxi] There was a ‘surprise rapprochement between Iraq and Kuwait at the March 2002 Arab summit – which also produced an unprecedented agreement among all Arab countries (including Iraq) to recognize the state of Israel inside its pre-1967 borders – marked the formal end of the Arab consensus behind the sanctions and containment policies of the previous decade.” (Brown and Toensing – ‘A Backgrounder on Inspections and Sanctions’ in The Iraq War Reader (Sifry & Cerf)).

[xxii] The debate had left the United Nations but was being played out in the United States Congress and Senate. See the debates in the House of Representatives on October 10, 2002 concerning the Hastert-Gephardt Authorization for Use of Military Force Against Iraq Resolution (H.J. Res.114) in The Iraq War Reader (Sifry & Cerf)).

[xxiii] Gerald F. Powers – ‘An Ethical Analysis of War against Iraq.’

[xxiv] General Assembly resolution 56/21 of 21 December 2001; resolution 56/24 of 10 January 2002; 56/88 of 24 January 2002; 56/176 of 7 January 2002; 56/160 of 13 February 2002; 56/174 of 27 February 2002; 56/220 of 28 February 2002; 57/55 of 30 December 2002; 57/59 of 30 December 2002; 57/79 of 8 January 2003; 57/78 of 8 January 2003; 57/73 of 8 January 2003; 57/97 of 9 January 2003; 57/86 of 9 January 2003; 57/27 on ‘Measures to eliminate international terrorism’ of 15 January 2003; 57/232 of 23 January 2003; 57/113 of 19 February 2003; 57/219 of 27 February 2003 and 57/234 of 28 February 2003. See also ‘Saddam Hussein: Crimes and Human Rights Abuses’ published by the Foreign and Commonwealth Office, London (November 2002).

[xxv] A/RES/56/24 (Distr.: General 10 January 2002)

[xxvi] Reports failed to mention that the US bombed Iraq throughout the 1990’s due to its non-cooperation with the weapons inspectors and without any Security Council authorization for such attacks (Brown and Toensing – ‘A Backgrounder on Inspections and Sanctions’ in The Iraq War Reader (Sifry & Cerf).

[xxvii] See further S.C. resolutions 1443 (2002) of 25 November 2002; 1447 (2002) of 4 December 2002; 1454 (2002) 30 December 2002.

[xxviii] Daniel Benjamin – ‘Saddam Hussein and Al Qaeda Are Not Allies’ (September 30 2002) The New York Times; AFP (Washington) – “’No proof’ Saddam involved in 9/11 attacks: Bush” (September 18 2003) (in the New Age on 19 September); AFP (Madrid) – ‘Spanish intelligence sees no link between Saddam, al-Qaeda’ (Sept 2003) (in the New Age in September 2003); Rueters (Washington) – ‘US never accused Saddam of directing 9/11: Rice’ (September 17 2003) (in New Age on 18 September 2003); Carlos Hamann (AFP) – ‘No solid evidence yet linking Saddam Hussein to Al-Qaeda’ (The Daily Star – Saturday, July 26, 2003); Robert Novak – ‘No meeting in Prague’; CIA Director’s letter to Senator Bob Graham in The Iraq War Reader (Sifry & Cerf).

[xxix] Robert Kagan and William Kristol – ‘What to do about Iraq’ in The Iraq War Reader (Sifry & Cerf).

[xxx] See speech of Dominique de Villepin, France’s Minister of Foreign Affairs, at the United Nations. Security Council, February 14, 2003.

[xxxi] Micah L. Sifry and Christopher Cerf – ‘The Iraq War Reader: History, Documents and Opinions’ (Touchstone 2003) pg. 502.

[xxxii] The Iraq War Reader pg. 503-504.

[xxxiii] Micah L. Sifry and Christopher Cerf – ‘The Iraq War Reader: History, Documents and Opinions’ (Touchstone 2003) pg. 505.

[xxxiv] See S.C. resolution 1476 (2003) of 24 April 2003.

[xxxv] See S.C. resolution 1490 (2003) of 3 July 2003 and 1500 (2003) of 14 August 2003.

[xxxvi] Rangwala, Hurd and Millar – ‘A case for concern, not a case for war’; Secretary of State Colin L. Powell’s presentation, on Thursday, February 6, 2003, to the UN Security Council and Lashmar and Whitaker – ‘MI6 and CIA: The new Enemy within’ all articles and texts can be found in The Iraq War Reader.

[xxxvii] See Reuter’s news reports from August-September 2003.

[xxxviii] Dominic Evans – ‘Blix Attacks 'Spin and Hype' of Iraq Weapon Claims’ (Thursday September 18, 2003) Reuters; National Post Canada - ‘Saddam didn't lie; there are no WMDs, UN inspectors say’ (September 14, 2003); Andy McSmith – ‘How one man defied logic and intelligence to take us to war’ (14 September 2003) Independent, London.

[xxxix] See also the Hutton Inquiry on the death of Dr. David Kelly.

[xl] Dominic Evans – ‘Blix Attacks 'Spin and Hype' of Iraq Weapon Claims’ (Thursday September 18, 2003) Reuters; BBC News – ‘No WMD in Iraq, source claims’ (24 September, 2003) World Edition

[xli] Gerard F. Powers – ‘An Ethical Analysis of War against Iraq.’ (United States Institute of Peace)

[xlii] Khilafah.com Journal (10 September 2003).

[xliii] See Barrister Harun ur Rashid – ‘Why did UN become a bomb-target in Baghdad’ Holiday (Friday, August 22, 2003)

[xliv] Osama bin Laden – ‘Letter to the American people’ (Sunday November 24, 2002) Observer Worldview Extra (Guardian Unlimited); See also ‘A World of Justice and Peace would be Different’ a response by German writers to ‘What We’re Fighting For: A Letter From America’ (Published originally in the "Frankfurter Allgemeine" May 2, 2002 as ``Eine Welt der Gerechtigkeit und des Friedens sieht anders aus.”; ‘Letter from United States Citizens to Friends in Europe’ written by a number of US intellectuals in critical response to ‘What We're Fighting For: A Letter from America.’; ‘Reading an Enemy - Analyzing al-Qa`ida's Letter to America’ by David Blackenhorn.

[xlv] Daily Express (Independent National Newspaper of East Malaysia) – ‘Muslims must obtain knowledge to gain success: Mahathir’ (17 December 2003).

M.B.I. Munshi (Sunday, September 21, 2003)

Dhaka Centre for Law and Economics

House No-50 (new), 750 (old), Satmasjid Road

Dhanmondi R/A

Dhaka-1209, Bangladesh

What seems to be happening now (post 9/11) is that three separate doctrines are working in tandem to justify what President Bush has described as the war on terror. At one level self-defence (under Article 51 of the UN Charter) is used as a mere pretext for war against predominantly Muslim states said to be harbouring or having contacts with terrorist groups (again links that may be real, imagined or made up). At the next level the doctrine of preemptive and preventative war is advocated but completely devoid of any association with the UN Charter except as a further pretence (when needed) to acquiring a modicum of legality for their (the United States and its allies) actions but that is still dependent on the degree of support for military intervention within the United Nations and the Security Council.

In a case where Security Council support is forthcoming the rationale for action is usually accepted as falling with Article 51 or some other provision of the Charter and passed successfully (albeit with the couple of states making objections or abstaining). Where support is hard to come by, the argument that is normally used is that preventative war is justified where a state is threatening to use weapons of mass destruction (WMD’s) or is planning to manufacture them for intended use or has taken direct part in some form of terrorist atrocity in the past involving WMD’s and/or sponsors know terrorist groups (or a combination of all three).[i]This has rarely been convincing but allows powerful states to inform their publics that they had tried to use the art of persuasion against a wall of obduracy and unreason and it is in their interests to support a preventative war whether subsequently found to be legal or illegal. This policy was clearly defined by President Bush in a speech on June 1, 2002 at West Point Military Academy where he states that, “[America] must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge. In the world we have entered, the only path to safety is the path of action. And this nation will act.”[ii]It is hoped by some in the Bush Administration that by these stratagems preventative war will eventually emerge as a new norm in customary international law outside the security structure of the United Nations.

At the third and final level the doctrine of just war (or a tendentious interpretation of it[iii]) is propagated but mainly within the think tanks and policy centres having deep links with the Christian right, the Jewish lobbies and the intellectual conservatives who are viscerally opposed to the United Nations and all that it stand for. In this last case no pretence is made of acting within the United Nations security umbrella, an undertaking tacitly accepted and supported by the Bush Administration but never publicly acknowledged due to the predictable public and international outcry and obvious comparisons to Nazi Germany’s behavior towards the League of Nations.

There is one further exception to the prohibition on the threat or use of force contained within the UN Charter but appears not to be adequate for the needs of the present administration in the United States for obvious reasons (hence the resort to Article 51 and preventative war). Chapter VII of the Charter provides for action with respect to threats to the peace, breaches of the peace, and acts of aggression. It is for the Security Council to determine the existence of any threat to the peace, breach of the peace, or act of aggression and then decide what is to be done to restore international peace and security.[iv]The Article 39 procedure has been used in Bosnia and Herzegovina,[v]Somalia,[vi] Rwanda,[vii] Haiti[viii]and Libya.[ix]It is however, Article 42 contained in Chapter VII that is of immediate concern as it allows for the Security Council to arrange and organize such action to maintain or restore international peace and security which may include the use of demonstrations, blockade, and other operations by air, sea, or land forces of member of the United Nations.[x] It was originally intended that member states would contribute armed forces, assistance, and facilities, including rights of passage in accordance with a special agreement or agreements but which have so far never been signed or agreed upon and so in all practicality the use of armed force by the United Nations cannot be taken under Article 42 in the absence of such agreements.[xi]

It was not surprising therefore that questions arose as to the constitutionality and legitimacy of several resolutions passed during the Korean War and in particular the resolution of July 5, 1950 that recommended member nations to make such forces and other assistance available to a unified command under the United States. The United Kingdom representative in proposing the resolution of July 7 stated, ‘It is clear to all concerned that unified command is essential if confusion is to be avoided … Had the Charter come fully into force and had the agreement provided for in Article 43 of the Charter been concluded, we should, of course, have proceeded differently, and the action to be taken by the Security Council to repel the armed attack would no doubt have been founded on Article 42. As it is, however, the Council can naturally act only under Article 39, which enables the Security Council to recommend what measures should be taken to restore international peace and security … All the Security Council can do is to recommend that one of its members should designate the commander of the forces which individual members have now made available.”[xii]The legality of this entire approach is subject to doubt but some commentators paper over this dispute and have remarked that ‘the overwhelming majority of States involved in the Korean action were fully prepared to regard it as a United Nations action involving United Nations Forces.”[xiii] Some have defended the action in the Korean peninsula as an exercise of the customary international law right of collective self-defence.[xiv]

This approach was further extended in the Gulf war (1991) where the Security Council initially acting under Articles 39 and 41 condemned the Iraqi invasion of Kuwait and demanded the immediate and unconditional withdrawal of Iraqi forces from that country terming it a breach of the peace.[xv]Subsequently, the Security Council acting under Article 51 and Chapter VII of the charter issued a second resolution placing an embargo on the import and export of all commodities and products including weapons or any other military equipment to these two countries.[xvi]Several further resolutions were passed all claiming (expressly or impliedly) to be made under Chapter VII of the charter but it has been challenged whether some of the requirements and condemnations made in those resolutions necessarily or at all fall within that Chapter.[xvii]In resolution 665 it was requested that states concerned to co-ordinate their actions were to use appropriate mechanisms of the Military Staff Committee although there was no formal control of the operation by this Committee.[xviii]It was not surprising therefore that both the United States and United Kingdom claimed to be acting under the international law right to collective self-defence of Kuwait and reserved the right to act without the need for Security Council authorization.[xix]Margaret Thatcher in her speech to the House of Commons stated that, ‘we are not precluded by reason of any Security Council resolution from exercising the inherent right of collective-self defence in accordance with the rules of international law.’[xx]

It was on this basis that action was initiated against Iraq and many commentators lauded the decisive steps taken by the United States and United Kingdom in organizing a coalition of international forces to repel the Iraqi military from the territory of Kuwait but some observers must have surely had qualms about how this was achieved and the repercussions for future conflict. It was Security Council resolution 678 (1990) that allowed the coalition forces in the Gulf to use all necessary means (including force) to uphold and implement Security Council resolution 660 that as we have seen demanded the immediate and unconditional withdrawal of Iraqi forces from Kuwait. Iraq immediately objected to this resolution arguing that military action can only be legally undertaken under Articles 42 and 43. [xxi]There was no reference to a Military Staff Committee in the resolution as had been the case in the Korean War and that the only obligation imposed on the states contributing to the coalition forces was to report periodically to the Security Council. There is therefore naturally some doubt as to the Charter basis for Resolution 678.[xxii]The widely accepted interpretation of resolution 678 and the subsequent military action against Iraq is that the legal basis for the use of force is found in the right of collective self-defence and the resolution was merely a political tool to these ends.[xxiii]

As we shall see the legality of military action by the United States in Iraq (2003) in the face of stern opposition within the Security Council brought into focus how doctrines of war, Charter provisions and the international media could be manipulated and twisted to fit the needs of the aggressors (which in this case were ironically the US and the UK). In the Iraq war the argument for military action could not be based on the right to collective self-defence or Chapter VII provisions so another method was used based on the doctrines of war discussed above (in particular preventative war and just war doctrines).

The events of September 11 2001 made the above manipulation of United Nations Charter provisions an insufficient and inadequate strategy for the Bush Administration, its neo-conservative advisers and the Jewish lobby to further their interests of worldwide domination. What was required was a new justification for war only superficially based on the United Nations system and Article 51 of the Charter and influenced by pre-medieval Christian and Jewish tracts and catechisms, fraternity codes and modern theoretical treaties proclaiming a ‘New World Order’, ‘The End of History’ and a ‘Clash of Civilizations.’[xxiv]In all this, the Muslims are considered the biggest threat to such designs and hence President Bush’s statement that, ‘This crusade, this war on terrorism, is going to take a while.’[xxv] Similarly, when on September 26 2001, Silvio Berlusconi, Italy’s Prime Minister delivered a prepared speech about ‘superiority of Christianity’ and the need to ‘Occidentalize’ the Middle East he was merely expressing the gut response of most Europeans to the attacks on September 11. The Muslim reaction to all this expresses a diametrically opposed viewpoint and interpretation most faithfully presented by Prime Minister Mahathir Bin Mahamad, “The Sept 11 (2001) attack on America which supported Israel was made an excuse for the Anglo Saxon Europeans to return to their old violent ways. Their strategy to fight terrorism is through attacking Muslim countries and Muslims, whether they are guilty or not.”[xxvi]In another speech he stated that, “Unless we are able to turn the present worldwide anger over the terrorists attack of September
11 into a real campaign against all terrorists irrespective of their religious faiths we are going to find that Muslim bashing will be heightened and our struggle to alleviate the sufferings of hundreds of millions of oppressed Muslims will fail.”[xxvii]

For a historical parallel of the present cultural and religious hostility between the Christian West and Islamic East one would have to venture back to the period between 1095 and 1291 when the expeditions called the crusades[xxviii]began and in most part ended. As Prof. J.M. Roberts points out, “… the first four crusades had too often shown the unpleasant face of greed. They were the first examples of European overseas imperialism, both in their characteristic mixture of noble and ignoble aims and in their abortive settler colonialism ... The Crusades both expressed and helped to forge the special temper of western Christianity, giving it a militant tone and an aggressiveness which would make its missionary work more potent in the future when it would have technological superiority on its side as well, but also more ruthless. In it lay the roots of a mentality which, when secularized, would power the world-conquering culture of the modern era.”[xxix]

For the purposes of this article it is not necessary to reach further back than 15 October 1999 when the first volley (metaphorically speaking) was fired by the Security Council against one of the principal protagonists in this new war, Usama bin Laden. It was on that date that the Security Council adopted resolution 1267 (1999) and declared for the first time that the Taliban was continuing[xxx]to provide safe haven to Usama bin Laden and other associated with him to operate a network of terrorist training camps and to use Afghanistan as a base from which to sponsor international terrorist operations. Acting under Chapter VII the Security Council demanded that the Taliban turn over Usama bin Laden to appropriate authorities as he had already been declared wanted and indicted for the 7 August 1998 bombings of the United States embassies in Nairobi, Kenya and Dar es Salaam. It was the first resolution in a series to actually impose sanctions on the Taliban government and the first to purport to act under Chapter VII of the Charter.[xxxi]It was also the first to determine that the failure of the Taliban authorities to respond to the demands made in a previous resolution[xxxii]constituted a threat to international peace and security. In quick succession the Security Council at its 4053^rd meeting on 19 October 1999 adopted resolution 1269 (1999) expressing its deep concern at the increase in acts of international terrorism and was determined to contribute, in accordance with the Charter of the United Nations, to the efforts to combat terrorism in all its forms.

It was not for another year that a resolution was adopted on either the situation in Afghanistan or on the fight on international terrorism. Theories abound as to the reasons for this and the most revealing appears in an article written by Patrick Martin under the title, ‘US planned war in Afghanistan long before September 11.’[xxxiii]It is claimed that during 1998 and 1999 the Clinton administration had been preoccupied with the problem of how to exploit the energy riches of Central Asia. It was proposed by the UNOCAL oil company that an Afghanistan pipeline route be built and to this end negotiations with the Taliban Government was initiated. The above series of Security Council resolutions could be said to be a negotiating tactic meant to exert pressure on the Taliban to concede the pipeline deal. Eventually the talks fell through and covert operations against the Taliban were undertaken but it was not until 19 December 2000 that war became an option. By resolution 1333 (2000) the Security Council extended the sanctions regime on Afghanistan economically, politically and diplomatically and placed an arms embargo over the country preventing the direct or indirect supply of arms and related materials of all types and decided to freeze without delay funds and other financial assets of Usama bin Laden and individuals and entities associated with him. Resolution 1363 (2001) of 30 July 2001 created a Monitoring Group based in New York to supervise the implementation of the measures imposed by resolutions 1267 (1999) and 1333 (2000) including in the fields of arms embargoes, counter-terrorism and related legislation the purchasing of arms and financing of terrorism, money laundering, financial transactions and drug trafficking.

According to the Patrick Martin article mentioned above the Guardian newspaper in its 22 September 2001 issue stated ‘Bin Laden, far from launching the attacks on the World Trade Centre in New York and the Pentagon out of the blue 10 days ago, was launching a pre-emptive strike in response to what he saw as US threats.’[xxxiv]If this were true it would be the first case of a non-state actor using the device of pre-emptive attacks to ward off a likely threat from a state actor.[xxxv]This would also indicate a commonality of thinking between Usama bin Laden and the Bush administration both guided by ideas aberrant to their supposed and (publicly) stated legal frameworks and justifications. As the case may be, the attacks on September 11 brought immediate condemnation from the General Assembly[xxxvi]and the Security Council which reaffirmed the principles and purposes of the Charter of the United Nations and then declared its determination to combat by all means, threats to international peace and security caused by terrorist acts. Resolution 1368 (2001)[xxxvii]then went on to (presumably) rewrite international law by inserting in the same resolution the recognition of the inherent right of individual or collective self-defence in accordance with the Charter and expressing its (the Security Council’s) readiness to take all necessary steps to respond to the terrorist attacks of 11 September 2001 in accordance with its responsibilities under the Charter of the United Nations.

If this was not enough to incite the United States to attack Afghanistan without much further ado[xxxviii]resolution 1373 (2001) reaffirmed that such terrorist attacks which took place in New York, Washington D.C. and Pennsylvania on 11 September 2001 constituted a threat to international peace and security. It also reaffirmed the inherent right of individual or collective self-defence as recognized by the Charter and reiterated in resolution 1368 (2001). It reaffirmed the need to combat by all means, in accordance with the Charter, threats to international peace and security caused by terrorist acts. The resolution expressed deep concern by the increase, in various regions of the world, of acts of terrorism motivated by intolerance or extremism (both terms undefined and susceptible to various interpretations and by association a warning shot at radical Islamic groups around the world).[xxxix]The resolution then reaffirmed that every state has the duty to refrain from organizing, instigating, assisting or participating in terrorist acts in another state or acquiescing in organized activities within its territory directed towards the commission of such acts. Acting under Chapter VII of the Charter the resolution declared that acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations.

Although, neither resolution 1368 (2001) and 1373 (2001) strictly authorized the armed attacks on Afghanistan (as all action was to be taken by the Security Council) it laid the ground work for the United States to use the doctrine of preventative war against states sponsoring terrorism based on a tenuous interpretation of Article 51.[xl] This appears to be the construction adopted by Prime Minister Tony Blair in his address to the nation on 7 October 2001[xli]when he states that, “The world understands that whilst of course there are dangers in acting as we are, the dangers of inaction are far, far greater – the threat of further such outrages, the threats to our economies, the threat to the stability of the world … we have a direct interest in acting in our self-defence to protect British lives … we know that sometimes to safeguard peace, we have to fight … We only do it if the cause is just. This cause is just.”

It is extremely doubtful whether any of the resolutions adopted from 15 October 1999 onwards could be based on Articles 39, 41 or Chapter VII of the Charter as the parties subject to the provisional measures adopted in those resolutions tended to be individuals or groups not specifically aligned to any state party but belonging to a network of entities of global reach. This was never a scenario for consideration nor an imagined possibility for the framers of the Charter to ponder and who were primarily concerned with state parties interacting with each other within the framework provided by the United Nations when eventually brought into being. Certainly the wide interpretations given to Article 51 were never envisaged by its framers and the repetitious and implausible references to the purposes and principles of the United Nations does not clarify the matter any further as asymmetric warfare (the technical name given to terrorist activity) was never contemplated by the drafters of the Charter as a grounds for military action.[xlii]

Overnight international law seemed to allow any state aggrieved at a terrorist act perpetrated against it to resort to pre-emptive or preventative measures against another state deemed liable for sponsoring and harbouring those groups held to be responsible for the said atrocity. This seems to be the meaning given to Article 51 as inserted (through the use of the terms individual and collective self-defence) by the Security Council in resolution 1368 (2001) and 1373 (2001). Nothing in the Charter allows for the Security Council to take part in the whole sale rewriting of the constitution of the United Nations including its purposes and principles nor does the Charter permit the Security Council to make legislation in such a wanton and ill-considered fashion.[xliii]This ‘inadvertent’ (or deliberate) propagation of preventative war doctrine as a response to terrorist acts by the Security Council brings the words of Noble Laureate and former President Jimmy Carter to mind, “For powerful countries to adopt a principle of preventative war may well set an example that can have catastrophic consequences.”[xliv]

Michael Akehurst – ‘A Modern Introduction to International Law’ (Sixth Edition)

Institute of American Values – ‘What Were Fighting For – A Letter From America’ (February 2002)

United States Institute of Peace – ‘Would an Invasion of Iraq be a ‘Just War’’ (Special Report)

Project For The New American Century – Statement of Principles (June 3, 1997)

Micah L. Sifry and Christopher Cerf – ‘The Iraq War Reader: History, Documents, Opinions’ (Touchstone 2003)

[i] Legality of the Threat or Use of Nuclear Weapons Case (Advisory Opinion) (1997) 35 I.L.M. 809; Gerald Powers – ‘Ethical Analysis of War’; Robert Royal - ‘Just War and Iraq’; Senator John McCain – ‘Iraq’s disarmament is impossible without regime change’; Use of Military Force Against Iraq Resolution of 2002 (H.J. Res. 114); John J. Mearsheimer and Stephen M. Walt – ‘An unnecessary war’; Jonathan Schell – ‘Pre-emptive defeat, or how not to fight proliferation’ the last three articles and texts can be found in The Iraq War Reader (Sifry & Cerf)

[ii] See Vice-President Dick Cheney – ‘The risks of inaction are far greater than the risk of action’; George Will – ‘Stuck to the UN tar baby’; Former Vice-President Al-Gore – ‘Against a doctrine of pre-emptive war’ in TheIraq War Reader.

[iii] Gerald Powers – ‘Ethical Analysis of War’; George Hunsinger – ‘Invading Iraq: Is It Justified’; Susan Brooks – ‘Just War and a Post Modern World’.

[iv] Article 39; The Spanish Question (S.C.O.R. 1^st Year, 1^st Series, 47^th Meeting); Resolution on the Definition of Aggression 1974 (G.A. Resolution 3314 (XXIX) (14 December 1994); D.J. Harris

[v] Security Council Resolution 770 of 1992

[vi] Security Council Resolution 794 of 1992

[vii] Security Council Resolution 929 of 1994

[viii] Security Council Resolution 875 of 1993

[ix] Security Council Resolution 731 and 748 of 1992

[x] See Articles 40-50

[xi] Article 43; Military Staff Committee – ‘General Principles Governing the Organization of the Armed Forces made available to the Security Council by Member Nations of the United Nations’ (S.C.O.R. 2^nd Year, Sp. Supp. No. 1, p.1); D.J. Harris

[xii] S.C.O.R., 5^th Year, 476^th Meeting, pp. 3-4 (1950) in D.J. Harris pp. 954-955.

[xiii] Bowett – ‘United Nations Forces’ (1964) in D.J. Harris pg. 955.

[xiv] Stone – ‘Legal Controls of International Conflict’ (1959); D.J. Harris

[xv] Security Council Resolution 660 of 1990

[xvi] Security Council Resolution 661 of 1990

[xvii] Security Council Resolutions 662, 664, 667, 674 and 677; D.J. Harris pg. 959

[xviii] D.J. Harris pg. 959

[xix] D.J. Harris pg. 960

[xx] D.J. Harris pg. 960

[xxi] D.J. Harris pg. 961

[xxii] D.J. Harris pg. 961

[xxiii] D.J. Harris pg. 961

[xxiv] M.B.I. Munshi - ‘September 11 and the New World Disorder’ (2002);

[xxv] Sept 16, 2001 - comments on returning from Camp David

[xxvi] THE 54TH UMNO GENERAL ASSEMBLY (19/06/2003)

[xxvii] THE EXTRAORDINARY SESSION OF THE ISLAMIC CONFERENCE OF FOREIGN MINISTERS ON TERRORISM (01/04/2002)

[xxviii] Britannica 2002 Deluxe Edition

[xxix] J.M. Roberts – ‘The Penguin History of the World’ (1997) pp. 507-508.

[xxx] This is the first time it is mentioned that links existed between the Taliban regime and Usama bin Laden so why the word ‘continued’ is used escapes me.

[xxxi] Security Council resolutions 1076 (1996) of 22 October 1996; 1189 (1998) of 13 August 1998; 1193 (1998) of 28 August 1998; 1214 (1998) of 8 December 1998;

[xxxii] S.C. resolution 1214 (1998) of 8 December 1998

[xxxiii] World Socialist Web Site (Published by the International Committee of the Fourth International) 20 November 2001; See Michael Meacher’s article, ‘This War on Terrorism is Bogus’ (September 6, 2003) The Guardian.

[xxxiv] The reason for the launching of the attacks by Usama bin Laden on September 11 differ from my presentation and puts forward a story of deception and intrigue that has so far been unverifiable and ultimately unverified to my knowledge.

[xxxv] A similar point to that made by M. Shahid Alam in ‘Dialectics of terror: Can the situation yet be saved?’ (Holiday - Friday, September 19, 2003). He writes, “President Bush declared that 9/11 was an act of war (making it the first act of war perpetrated by civilians, nineteen in number), and proceeded to declare unlimited war against terrorists (also the first time that war has been declared against elusive non-state actors.”

[xxxvi] A/RES/56/1 of 12 September 2001 (1^st plenary meeting)

[xxxvii] 12 September 2001

[xxxviii] The United States has gone to war with far less than this.

[xxxix] ‘Open Letter to President Bush: Lead the World to Victory’ (September 20, 2001) Project for the New American Century; Nicholas Lemann – ‘The war on what? The White House and the debate about whom to fight next’ both in The Iraq War Reader (Sifry and Cerf).

[xl] Gail Davidson in her article ‘International Law and the War against Afghanistan’ states that, “… little attentions is being paid to the fact that the strikes [on Afghanistan] are inconsistent with the September 12 NATO resolution. Although this resolution invoked Article 5 of the Washington Treaty that enables NATO countries to act collectively, the resolution in clear language barred any action until further decision by the Council. The United States rejected this collective approach and put together its own group of ‘allies’ leaving the US in control of all aspects of the current bombing of Afghanistan and of any future war actions including bombings of additional countries.”

[xli] This was the date on which the military campaign against Afghanistan and the Taliban government began.

[xlii] Howard S. Schiffman – ‘Legal Basis for the War in Afghanistan’ (November 19, 2001)

[xliii] See Article 108 of the Charter on Amendment.

[xliv] In Robert Royal – ‘Just War and Iraq’

M.B.I. Munshi (Monday, September 15, 2003)

Dhaka Centre for Law and Economics

House No-50 (new), 750 (old), Satmasjid Road

Dhanmondi R/A

Dhaka-1209, Bangladesh

Whether the Charter admits of preemptive and preventative actions is now subject of intense debate and has taken on political overtones and implications outside the original framers possible conceptions and understanding of international relations that were necessarily limited to a specific time and context involving state actors rather than a loose network of individuals and groups.[i]This is however, insufficient grounds to rewrite the entire law relating to self-defence that has the possibility of creating uncertainty and instability but which is nevertheless being proposed regardless by some intellectuals in Washington.

‘In every age,’ comments the monk Elias, ‘there has always been a madman among the people of Kfaryabda, and when one disappeared another was ready to take his place, like an ember that goes on smouldering under the ashes, so that the fire is never extinguished. No doubt Providence needs these puppets, which she manipulates to rend the veils that man’s wisdom has woven.’ (Amin Maalouf - ‘The Rock of Tanios’)

“… real power is not in the weapons themselves, but in the man who wields those weapons; and when he, in his eagerness for power, multiplies his weapons at the cost of his own soul, then it is he who is in even greater danger than his enemies.” (Rabindranath Tagore- Nationalism)

Prior to the United Nations system attempts had been made in 1928 to make war illegal and put in place a complete and total prohibition of war as a means to resolving international controversies. To this end states agreed to renounce the use of war as an instrument of national policy.[i]In a matter of ten years the entire system collapsed leading to the Second World War and the creation of the United Nations. In these circumstances it was appropriate that the first stated purpose of the United Nations is to ‘maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace…’[ii]In a statement of international customary law the United Nations Charter declares that all ‘members shall refrain in their international relations from the threat or 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.’[iii]

This rule is of universal validity as it is also a rule of customary international law. [iv]The United Nations system therefore prohibits the use of armed force; regardless of whether or not it constitutes a technical state of war (the distinction between war and mere hostilities is therefore redundant).[v]A war of aggression now constitutes a crime against the peace for which there is responsibility under international law and states are said to be under a duty to refrain from propaganda for wars of aggression. All states are required to comply in good faith with their obligations under the generally recognized principles and rules of international law with respect to the maintenance of international peace and security, and shall endeavour to make the United Nations security system based upon the Charter more effective. [vi]It is noteworthy in this regard that the International Court of Justice in a judgment in 1986 found that the United States activities in Nicaragua constituted a breach of the customary international law principle of the non-use of force and may have gone further and held the actions of the United States a violation of the United Nations Charter had it not been for that countries reservation to the acceptance of jurisdiction under Article 36 (2) of the ICJ Statute excluding disputes arising under a multilateral treaty.[vii]The court had further found that the United States was in clear breach of the principle of non-intervention in the internal affair of another state as well as several other customary law principles.[viii]

There are, however, several exceptions to the above rules on the use of force contained within the United Nations Charter. The most controversial of these is the right to self-defence found in Article 51 which reads in part: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security…” Self-defence will warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule that is also well established in customary law.[ix]

It is unclear whether Article 51 excludes the right of anticipatory self-defence but the weight of opinion seems to suggest that it does, otherwise it would allow the opening of the door to preventative actions of dubious credibility (i.e. Iraq).[x]More pertinently, the words ‘if an armed attack occurs’, interpreted literally, imply that the armed attack must have already occurred before force can be used in self-defence; there is in other words no right of anticipatory self-defence against an imminent danger of attack, which ironically for much of the world, may be considered a good thing.[xi]Leaving it to interested states to determine the meaning of ‘imminent danger of attack’ has only led to a sleuth of lies, damned lies and intelligence reports with usually no means of redress to compensate for a mistaken assumption that an attack was imminent. This is due in part to the veto power available to the permanent members of the Security Council that also tends to render any objection to a preventative war by the United States and Great Britain a pretty much futile exercise. [xii]

Whether the Charter admits of preemptive and preventative actions is now subject of intense debate and has taken on political overtones and implications outside the original framers possible conceptions and understanding of international relations that were necessarily limited to a specific time and context involving state actors rather than a loose network of individuals and groups.[xiii]This is however, insufficient grounds to rewrite the entire law relating to self-defence that has the possibility of creating uncertainty and instability but which is nevertheless being proposed regardless by some intellectuals in Washington.

It is not without a little justification that some political commentators are apprehending an international environment gradually reverting back to the more bellicose and uncertain world of pre-1914 Europe. This is due in part to the principles and policies put forward by the Bush administration and his neo-conservative advisers that claims for itself a ‘moral superiority’ (or should that be self-righteous sophistry and uncritical self-flattery) that sanctions unbridled military intervention by a Western alliance (on principally Muslim states), marginalizes the role and authority of the United Nations (when it suits them) and views with contempt any international judicial system. Those on the far left of American opinion have called this new twenty first century doctrine not one of preemptive war (as one would expect) but more accurately in the circumstances a preventative war that is by its nature self-justifying and continually and relentlessly on the march. In either case and according to most expert assessments both preemptive and preventative wars (some writers for some reason make no distinction between the two)[xiv] would be illegal under the United Nations Charter. The framers of which had imagined a more interdependent and responsible world that was eventually to come out of the destruction created by the Second World War but such hopes now seem to be completely dashed due to the emergence of a war doctrine inimical to the ideals upheld by the international community and the United Nations for the last 50 years.[xv]

The preventative war doctrine prescribes that the United States would rule the world by force, and that if there is any perceived challenge to its domination, real, imagined or invented, the US would have the right to destroy that challenge before it becomes a threat.[xvi] There may have been little to support these views in terms of solid documentary or oral evidence of America’s foreign policy objectives before the Iraq war (which I very much doubt) but after the announcement by the President of the conclusion of military operations (and the controversies surrounding the non-existence of WMD’s in Iraq) it has gained many adherents (in terms of its actuality and existence) especially in the Muslim world.[xvii] Prime Minister Mahathir Bin Mohamad of Malaysia alluding to events in Iraq explains that “the concept of non-interference in the internal affairs of independent nations has been replaced by the concept of involvement indirectly or directly, including in changing certain Governments by foreign powers: If necessary force will be used for this purpose…Today billions of dollars are being spent to develop more sophisticated weapons, supplying them to their war machines, training their forces for war, getting ready to fight even though there are no enemies presently or in the future which threaten them.”[xviii]

Such a doctrine has a substantial claim in international law because powerful states have the capacity to create what is called a new norm which has far reaching effects for the rest of the world since such a norm advocated by the United States would appear to supercede the United Nations security system and thereby pose a threat to smaller states on the list for possible interventionist action (i.e. the axis of evil).[xix]In a clear statement of intent issued by the Project for the New American Century and signed by Jeb Bush (the Presidents brother), Dick Cheney, Francis Fukuyama, Dan Quayle, Donald Rumsfeld and Paul Wolfowitz amongst others, it is stated that Americans must challenge regimes hostile to their interests and values and must accept responsibility in preserving and extending an international order friendly to their security, their prosperity and their principles.[xx]This statement seems to be harking back to the time when wars were said to be justified if they were fought for the defence of vital interests but it was the state that remained the sole judge and arbiter of its vital interests, which were never defined with any attempt at precision.[xxi]A new preemptive or preventative war norm would similarly place no limits on the rights of states to resort to war in protection of their vital interests and against perceived future threats to their nation (whether real, imagined or made up). [xxii]

According to some interpretations what we may in fact be witnessing is not the birth of a new norm but the rebirth of a very old one dating back to the time of the emergence of the Roman Catholic Church, natural law and in particular the writings of St. Augustine (354-430). If one were to compare some of the statements made by supporters of the Bush administration and those of St. Augustine (as well as St. Ambrose and Thomas Aquinas) concerning what constitutes a just war the reader will observe many similarities in language and nuance between the two. For example the following quote from St. Augustine provides the basis on which subsequent analysis depends, “Just wars are usually defined as those which avenge injuries, when the nation or city against which warlike action is to be directed has neglected either to punish wrongs committed by its own citizens or to restore what has unjustly taken by it. Further, that kind of war is undoubtedly just which God himself ordains.” It might be usefully mentioned that wars against unbelievers and heretics were sometimes regarded as being commanded by God (e.g. the Crusades).[xxiii] It is not surprising therefore that President Bush has already described the war on terror as a crusade.

For the requirements of just war to be satisfied several of the following conditions now have to be met; (1) Legitimate Authority – Requiring that legitimate officials may decide to resort to force; (2) Just Cause – The three standard acceptable causes are self-defense, recovery of stolen assets, and punishment for wrong doing; (3) Peaceful Intention – The intention is to use force to achieve peace, using force to restrain and minimize force; (4) Last Resort – Before turning to war, all reasonable approaches to a peaceful resolution need to be employed; (5) Reasonable Hope of Success – In going to war, there must exist the reasonable expectation of successfully obtaining peace and reconciliation between the warring parties.[xxiv]It goes without saying that the just war doctrine (even in this unadulterated sense) does not fit well with the United Nations security system that works on a completely different basis and on a substantially contrasting set of ideals and rules expressed in its Charter.

Without exception the three principal institutes backing the present Bush Administration’s policies discuss the matter of just war with varying degrees of emphasis on Christian ethics and religion but the message appears very much the same (an aggressive response to the September 11 attacks is morally justified as a means to avenge injuries or prevent future ones). Some writers distance themselves from the preemptive and preventative war doctrine and concentrate on the precepts of just war but in the final analysis there appears little discernible difference in their practical outcomes.[xxv] It is very likely that all three doctrines are working in the minds of the policy makers in Washington and producing conflicting and contradictory results or is a carefully disguised ruse. But what is strikingly similar about all there doctrines being advocated in the think tanks and policy centres in Washington is that the United Nations is accorded a subsidiary and insignificant role in how policy on war is eventually determined and decided upon:

“Some people suggest that the ‘last resort’ requirement of just war theory – in essence, the requirement to explore all other reasonable and plausible alternatives to the use of force, is not satisfied until the last resort to arms has been approved by a recognized international body, such as the United Nations. This proposition is problematic. First, it is novel; historically, approval by an international body has not been viewed by just war theorists as a just cause requirement. Second, it is quite debatable whether an international body such as the U.N. is in a position to be the best final judge of when, and under what conditions, a particular resort to arms is justified; or whether the attempt by that body to make and enforce such judgments would inevitably compromise its primary mission of humanitarian work. According to one observer, a former U.N. Assistant Secretary- General, transforming the U.N. into a ‘pale imitation of a state’ in order to ‘manage the use of force’ internationally ‘may well be a suicidal embrace’” (Institute for American Values – ‘What We’re Fighting For: A Letter From America’) [xxvi]

Michael Akehurst – ‘A Modern Introduction to International Law’ (Sixth Edition)

Institute of American Values – ‘What Were Fighting For – A Letter From America’ (February 2002)

United States Institute of Peace – ‘Would an Invasion of Iraq be a ‘Just War’’ (Special Report)

Project For The New American Century – Statement of Principles (June 3, 1997)

Micah L. Sifry and Christopher Cerf – ‘The Iraq War Reader: History, Documents, Opinions.’ (Touchstone 2003)

[i] General Treaty for the Renunciation of War 1928 (otherwise known as the Kellogg-Briand Pact or the Pact of Paris); Sixth International Conference of American States condemning aggression (18 February 1928)

[ii] Article 1 (1) of the Charter of the United Nations.

[iii] Article 2 (4) of the Charter of the United Nations

[iv] Nicaragua v. USA, ICJ Reports 1986 pp. 14, 98-101; General Assembly Resolution 2625 (XXV); Sixth International Conference of American States condemning aggression (18 February 1928); Montevideo Convention on Rights and Duties of States (26 December 1933); Conference on Security and Co-operation in Europe (Helsinki, 1 August 1975); International Law Commission Y.B.I.l.C. 1966, II, p.247;

[v] Michael Akehurst – ‘A Modern Introduction to International Law’ (1991); D.J. Harris – ‘Cases and Materials on International Law’ (2000)

[vi] General Assembly Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations 1970

[vii] Nicaragua v. USA, ICJ Reports 1986 Para. 228

[viii] Nicaragua v. USA, ICJ Reports 1986 Para. 242; Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty 1965 (G.A Resolution 2131 (XX); infringement of Nicaragua’s sovereignty and freedom of maritime commerce and international humanitarian law.

[ix] Legality of the Threat or Use of Nuclear Weapons Case (Advisory Opinion (1997) 35 I.L.M. 809; The Carolina Case 29 B.F.S.P 1137-1138, 30 B.F.S.P 195-196;

[x] D.J. Harris – ‘Cases and Materials on International Law’ (2000); Brownlie – ‘International Law and the Use of Force by States’ (1963); Henkin – ‘How Nations Behave (1979); Nicaragua v. USA, ICJ Reports 1986; S.C. Resolution 487 (1981); Harb Fort Incident and the S.C. Resolution adopted in its 1111^th meeting; But see Bowett – ‘Reprisals Involving Recourse to Armed Force’ (1972) 66 A.J.I.L. 1.

[xi] Michael Akehurst

[xii] See United States air raid on Libya where a draft resolution condemning the air strike received the required majority but was vetoed by the United States and the United Kingdom. This was an admitted case of preemptive action. (in D.J. Harris pp. 913-914))

[xiii] D.J. Harris

[xiv] In this article the two concepts will be used together as there does not seem to be any discernable difference in how the United States employs them and the practical outcomes seem to lead to the same conclusion. For a good definition of both concepts see Gerard F. Powers – ‘An ethical analysis of war in Iraq.’

[xv] Noam Chomsky – ‘US Doctrines of Imperial Domination versus Peace Movement’ (Monthly Review (Holiday – Friday, June 6, 2003); Edward Said – ‘Thoughts about America’; Institute of American Values – ‘What We're Fighting For: A Letter from America’ (Feb 2002); Project for the New American Century – ‘Statement of Principles’(June 3, 1997); United States Institute of Peace – ‘Would an Invasion of Iraq be a ‘Just War’’ ( Abdul Quader Chowdhury – ‘Coup de Grace to Multi-literalism and Americanization’ (Holiday – August 8, 2003); See speech delivered by UN Secretary General Kofi Annan to the General Assembly on September 12, 2002; Ayman El-Emir – ‘Two World Orders’ (Al-Ahram); See Preamble to the United Nations Charter and Article 2 (3).

[xvi] Noam Chomsky; ‘An Open Letter to President Clinton: ‘Remove Saddam From Power’’ (January 26, 1998) Project for the New American Century and Michael T. Klare – ‘Deciphering the Bush administrations motives’ in The Iraq War Reader (Sifry & Cerf).

[xvii] See President George W. Bush’s June 1, 2002 speech to the graduating class at the United States Military Academy at West Point; Richard Falk – ‘The New Bush Doctrine’ in The Iraq War Reader (Sifry & Cerf).

[xviii] The 54^th UMNO General Assembly (19-06-03)

[xix] Noam Chomsky

[xx] Project for the New American Century – Statement of Principles (June 3, 1997); Jay Bookman – ‘The President’s real goal in Iraq’ in The Iraq War Reader (Sifry & Cerf).

[xxi] Michael Akehurst; Brierly – ‘International Law and Resort to Force’ (1932) 4 Cam. L.J. 308

[xxii] See Michael Meacher’s article, ‘This War on Terrorism is Bogus’ (September 6, 2003) The Guardian.

[xxiii] Michael Akehurst

[xxiv] Taken from United States Institute of Peace – “Would an Invasion of Iraq Be a ‘Just War’”?

[xxv] Gerald Powers – ‘Ethical Analysis of War Against Iraq’; Institute for American Values – ‘What We’re Fighting For: A Letter From America’.

[xxvi] Institute for American Values – ‘What We’re Fighting For: A Letter From America’; Quotation from Giandomenico Picco – ‘The U.N. and the Use of Force’ (Foreign Affairs 73 (1994).

M.B.I. Munshi (Friday, September 5, 2003)

Dhaka Centre for Law and Economics

House No-50 (new), 750 (old), Satmasjid Road

Dhanmondi R/A

Dhaka-1209, Bangladesh

Apart from the few occasions where Indian border security forces (BSF) have indiscriminately shot and killed Bangladeshi nationals and pushed in several hundreds of their Muslim nationals into Bangladesh, the Indians have tended to use a more sophisticated method to achieve their stated goals. This has in recent years been predominantly done through the international and local media, press, NGO and INGO networks. It was during the Awami League regime of 1996-2001 that the NGO’s became a significant force in Bangladesh through the patronage of the Indian government, the Awami League party and its front organizations. ). To exert pressure on the Bangladesh government an Indian sponsored campaign to portray Bangladesh as a hotbed of Islamic fundamentalism and extremism was started. This was supported by the Awami League leadership which described the governing Bangladesh Nationalist Party and its Islamic alliance as having Taliban and Al-Qaeda sympathizers and was perpetrating acts of terrorist violence against the people. Simply to prove this several bombs were detonated around the country at places and locations said to be offensive to Islamic radicals and therefore very similar to the Bali bombings in Indonesia.

Bangladesh’s only distinctive appearance in books on international law and human rights concerns India’s intervention in the liberation war of 1971 and its apparent support for the freedom fighters seeking independence from Pakistan. Until that year, Pakistan consisted of East and West Pakistan, with India between the two parts. On March 26, 1971, East Pakistan declared itself independent under the name of Bangladesh. The Pakistan army was initially successful in suppressing the rebellion, but in November 1971 rebel guerilla forces launched a general offensive with considerable success. There was evidence to suggest that India, which by then had taken into its territory about one million refugees (mainly Hindu) from East Pakistan, had given the guerrillas (the Mukti Bahini) military assistance in their fight against the West Pakistani military.[i] On or around November 22, 1971 the first stage of full-scale war broke out between Pakistan and India, although nearly a week passed before India formally admitted to it though they had initiated the military hostilities against Pakistan.[ii]

Eventually the war ended with the creation of Bangladesh and victory for the Indian army. In diplomatic and political circles in the West questions arose as to the legality of India’s intervention, whether the new state satisfied the criteria for recognition by other states, matters relating to humanitarian intervention and general human rights concerns especially during the duration of the war in the then East Pakistan theatre of operations. At least one thing became clear to many Bangladeshis and this was that India’s intervention in Bangladesh’s affairs did not stop after the Liberation war ended. India’s intervention was not motivated by the humanitarian disaster (which India deliberately played up in the Western press and media) taking place in East Pakistan but by its ‘determination to use the crisis to establish its preeminence on the subcontinent.’[iii] This was to be achieved by the dismemberment of Pakistan which was successfully accomplished in 1971 and then hobbling the new state on its eastern side both politically and economically and with its eventual absorption into India soon after.[iv]

Apart from the few occasions where Indian border security forces (BSF) have indiscriminately shot and killed Bangladeshi nationals and pushed in several hundreds of their Muslim nationals into Bangladesh, the Indians have tended to use a more sophisticated method to achieve their stated goals. This has in recent years been predominantly done through the international and local media, press, NGO and INGO networks. It was during the Awami League regime of 1996-2001 that the NGO’s became a significant force in Bangladesh through the patronage of the Indian government, the Awami League party and its front organizations. The preliminary basis for their attack was Islam and the nationalist parties that upheld it and this strategy was increasingly adopted in the light of September 11 and the War on Terrorism pursued by the United States. In other words, a structure and framework was readily available where human rights could be exploited to advance other political aims and objectives of the Indian government.

The first encounter of any significance between the NGO’s and the Muslim majority occurred with the filing of a family law dispute in the High Court that involved principles of Islamic law that had been applied for centuries in the subcontinent without hindrance or challenge (i.e. the period of maintenance for a wife after divorce).[v] For some unknown reason the judges of the High Court did not confine themselves to the questions before them but suo motu addressed themselves to a legal query as to whether plaintiff No. 1 (the divorced wife) could have claimed maintenance beyond the period of iddat (i.e. 3 months). The learned High Court judges themselves acknowledged that their sou motu query was beyond the terms of the suit and was therefore outside the exercise of their jurisdiction. Almost fifty NGO’s and prominent individuals including intellectuals, lawyers and politicians enjoined themselves to the case when it was appealed to the Appellate Division. The NGO’s sought the complete curtailment of the Islamic rule with one that would satisfy their donors in the United States, Europe and India.

The judges of the Appellate Division were so appalled at this excess of jurisdiction by the High Court that they dismissed the plaintiff’s case with some very harsh words, “The learned Judges of the High Court Division did not give any reason as to why a sou motu exercise was necessary in the facts and circumstances of this case. A reasonless judgment justifies the appellants submission that the learned Judges held some personal views on maintenance from before and took this revisional case as an opportunity to convert their views into a judge-made law binding upon the parties to the suit (and upon future litigants) without their knowledge, behind their back and against the principles of natural justice…” (Justice Mustafa Kamal). In a similar excess of exuberance the High Court a few months later issued another sou moto rule in regard to Islamic legal edicts normally called fatwa. This resulted in an almost civil war type situation until the Appellate Division stayed the operation of that judgment. All this antagonism and pointless provocation was the work of one judge (Justice Golam Rabbani) and a network of NGO’s pushing issues that had no legal justification and were against the sentiments of the majority of the people and natural justice. Such an unstable situation was ideal for Indian and Awami League plans in Bangladesh or so they thought.[vi]

In Bangladesh, religious extremism is not a problem, unless it is fuelled by some foreign-funded NGOs. It is they who appear anxious to paint Bangladesh as a country of Islamic fundamentalists. And the people resent it.[vii] It was only after the elections held in October 2001 with the Four-Party-Alliance victory over the Awami League that Indian sponsored NGO’s came to the forefront of the movement in Bangladesh. By this time India’s demands on Bangladesh increased, requiring transit through Bangladesh territory, a Free Trade Agreement and the export of gas (something that the United States, the International Monetary Fund, World Bank and Asian Development Bank are eagerly awaiting and impatiently demanding). To exert pressure on the Bangladesh government an Indian sponsored campaign to portray Bangladesh as a hotbed of Islamic fundamentalism and extremism was started. This was supported by the Awami League leadership which described the governing Bangladesh Nationalist Party and its Islamic alliance as having Taliban and Al-Qaeda sympathizers and was perpetrating acts of terrorist violence against the people. Simply to prove this several bombs were detonated around the country at places and locations said to be offensive to Islamic radicals and therefore very similar to the Bali bombings in Indonesia.

In an elaborate twist the Reuters news agency reported that the Home Minister had indicated in an interview that the bombings at four cinema halls in Mymensingh were in fact the work of Al-Qaeda terrorists. A few days later and after much counter-accusations and denials Reuters retracted their story and a senior staff reporter of the state-run news agency Bangladesh Sangbad Sangstha (BSS) was arrested for filing the false report with Reuters. At around the same time several national newspapers reported that a junior commissioned officer of the army, a former lance corporal and a civilian had been arrested on charges of spying for an Indian intelligence agency. In many of the cases that have emerged of terrorist activities and cells working in Bangladesh the majority so far have been sponsored directly or indirectly by India and the reports manufactured by Indian intelligence and confirmed by their sympathizers abroad.[viii] This was corroborated by a respected senior journalist in Bangladesh,

“…a section of the Indian press, presumably prompted by a quiet Indian RAW agenda, built up a propaganda dossier about Al-Qaeda activity in Bangladesh by planted reports... Contributors to the Western media clandestinely visited Bangladesh to confirm those reports and made sensational headlines by stories published in Time, Far Eastern Economic Review, Wall Street Journal, etc. A contractor for Channel Four TV in the United Kingdom sent a clandestine team to film staged scenes of Al-Qaeda agitation in Bangladesh. That team’s intent has been foiled by police intervention, the foreign members of which have now been expelled from the country after due process of law. They were reportedly found to be guided by Indians, Bombay-based, as well as by Sheikh Hasina’s connections, Dhaka based.” (Sadeq Khan) [ix]

It was due to their failure to convince the world of a reliable Islamic threat from Bangladesh that a second front was opened in this campaign. In a letter to US Congressman Joseph Crowley a NGO calling itself 'Nikhil Bangla Nagarik Sanga' (NBNS) made a plea in the following terms:

“…the victory of Khaleda Zia after the general elections on October 1, 2001, numerous newspapers and eyewitnesses reported widespread violence against Hindus, Christians, Buddhists and other minorities of Bangladesh. The Jamaat-e-Islami, an Islamic party associated with the ruling BNP party of Prime Minister Khaleda Zia, and various Islamic Fundamentalists groups are blamed for these atrocities against the minorities. As per various reports, more than four million Hindus have been affected by this violence, and at least 2000 minority women have been raped in the last 3 months … Currently there is no let up on the violence against minorities of Bangladesh, where Taliban influence is spreading widely... In addition, Bangladesh Government is violating a number of articles that are enshrined in the Universal Declaration of Human Rights (UDHR) guidelines set forth for human life and dignity in the Manifesto 2000 of UNESCO … In summary, the current situation in Bangladesh is one of the largest man-made disasters in the world today.”

That none of these allegations were provable or substantiated and in some cases contradicted outright did not deter a few INGO’s latching on to the news and producing their own reports[x]The largest INGO did not hesitate to publish a slanted and demeaning country report which I personally took apart in my response ‘Amnesty Internationals relationship with HRCBM’ (2002). In my article I catalogued the close relationship between Amnesty International and the Human Rights Congress for Bangladesh Minorities (HRCBM) (an NGO) which has known affiliations with Indian intelligence and Hindu supremacist groups in India. That HRCBM and its sister group United Minority (another NGO) had intentions to destabilize and partition Bangladesh was well known by Amnesty International workers in London, Dhaka and in the United States. I also pointed out that Amnesty International had also failed to mention that many of the reported incidents against Hindus were conducted by workers of the opposition Awami League as many of the newspaper cuttings would have disclosed at the time.[xi]

In my reply[xii]I made the following queries that Amnesty International has still not taken up, responded to or even acknowledged, “From completely uncertain grounds, AI was able to draw broad and generalized conclusions concerning Bangladesh without any firm evidence to support it. In the case of India’s country report the AI must have had strong corroborative evidence to back up its indictments. I would therefore suggest that HRCBM is investigating the wrong country when it comes to minority oppression and Bangladesh is a far more tolerant country than India appears to be. I am also amazed at the dearth of material concerning Bangladesh. More accurately, it becomes more relevant to know who supplies AI with its information and how it is gathered. It seems that the manner in which the material has been compiled on Bangladesh has all come from organizations such as HRCBM or from mere newspaper cuttings.” It is with some satisfaction, however, that Amnesty Internationals 2003 Country Report on Bangladesh is brief on the subject of minorities probably due in part to the criticism it suffered in the previous year.

The onslaught on Bangladesh has been unrelenting and continuous; these are some of the articles, statements and reports issued against Bangladesh over the last two years- Alex Parry – ‘Deadly Cargo - Signs abound that Bangladesh has become a safe haven for Islamic jihadis—including Taliban and al-Qaeda fighters fresh off the boat from Afghanistan’;[xiii] Alex Perry – ‘A Very Dirty Plot - A police raid on Islamic militants uncovers uranium and dirty bomb-making instructions’;[xiv] Ian Bruce – ‘Bangladesh is New Rest Stop for Fugitives’; Bibhuti Bhusan Nandy – ‘Blind Faith’;[xv] Alastair Lawson-Tancred – ‘Bangladesh’s al-Qaeda Links’;[xvi] John Vidal – ‘Britain Ignores Bangladeshi Persecution’;[xvii] Rabindra Gosh – ‘Atrocities Against Minorities in Bangladesh’;[xviii] Rabindra Gosh – ‘Stop Barbaric Atrocities Against Minorities in Bangladesh’;[xix] Bertil Lintner – ‘Bangladesh: Breeding Ground for Muslim Terror’;[xx] Rahul Gupta – ‘Ethnic Cleansing in Bangladesh’;[xxi] Bertil Litner - ‘Religious Extremism and Nationalism in Bangladesh’;[xxii] Press Trust of India – ‘It is a war against the Hindus in Bangladesh’;[xxiii] Global Human Rights Defence addresses alarming human rights situation of Bangladesh minorities in Europe;[xxiv] HRCBM – ‘Brutal Gang Rape and Murder of Hindu Family Members traumatized the local Hindus of Bagerhat, Bangladesh’;[xxv] Mayer Dak – ‘The Minority Situation in Bangladesh.’[xxvi]

It is of no great surprise that many Muslims view the human rights agenda with a little trepidation and a healthy amount of suspicion. Even if the cultural differences could be overcome the cynicism in the Muslim world about the human rights agenda is not so easily assuaged. From a Muslim point of view human rights appear only as another toy that can be manipulated and contorted to fit the needs of the great powers and the interests of their many supporters and sycophants. That human rights violations do occur in the Muslim world cannot be denied but not to act decisively in the case of violations happening in other areas of the world simply looks like hypocrisy and double standards. In the case of Bangladesh the continuous and alarming warnings about terrorist threats and repression of minorities may become a self-fulfilling prophesy. By pushing an entire nation into the brink of ruin will only breed desperation, violence and mistrust. Incessant provocation can turn the most docile man into a ferocious avenger. Dr. Mahathir Muhamad speaks for many Muslims when he compares how human rights norms are applied in the Muslim world without restraint but human rights violations elsewhere are interpreted in a completely different way or not focused upon at all:

“It is the struggle of the Palestinians to regain their land that has precipitated, first conventional wars, then civil protest and eventually violent demonstrations. The Israelis demanded European support to atone for European crimes against them in the past. In desperation the Palestinians finally resorted to what is described as acts of terror. Rightly, this is condemned by the world. But the world does not condemn as acts of terror the more terrifying acts of the Israelis; the massacres in Sabra and Shatila, the shooting and killing of children, the use of depleted uranium coated bullets, the bulldozing of Palestinian homes while the occupants are still in them, the helicopter gunships etc. And Israel is now threatening to use nuclear weapons.”[xxvii]

This still remains an incredibly sore point for Muslims everywhere and the illustration can be extended to include Kashmir, Chechnya and Gujarat. The laws of war prove no less controversial for Muslims.

[i] J.D. Harris

[ii] Henry Kissinger - ‘The White House Years’ (1979).

[iii] Henry Kissinger

[iv] M.B.I. Munshi – ‘Akhand Hindustan’ (2003)

[v] See Hefzur Rahman (Md) vs. Shamsun Nahar Begum and another (51 DLR (AD) (1999).

[vi] See M.B.I. Munshi – ‘Reasserting Islamic Values’ (2001).

[vii] The New Nation 4^th February 2001

[viii] See M.B.I. Munshi – ‘Extremist Hindu and Secularist Forces Behind Mymensingh Blast’ (2002); ‘Motivated Journalism and International Intrigue’ (2002).

[ix] Sadeq Khan – ‘BD can’t slacken alert in diplomatic and security fronts’ in Holiday December 13, 2002

[x] See the work of information agencies and media watch groups such as Alochona, Shetubondhon, Mukto-Chinta, Nabic-L, News From Bangladesh and Bangladesher Dak for an effective refutation of the above allegations and others.

[xi] See Alochona eForce (Media Watch Report) – ‘HRCBM an Enemy of the State’ (2002).

[xii] Re Amnesty International

[xiii] Time Asia (October 21, 2002 / Vol. 160 No. 15)

[xiv] Time Asia (June 16, 2003 / Vol. 161 No. 23)

[xv] Hindustan Times (5th August, 2003)

[xvi] BBC News World Edition (Thursday, 24 October, 2002)

[xvii] Guardian Unlimited (Monday July 21, 2003)

[xviii] HRCBM (14th June, 2002)

[xix] HRCBM

[xx] Asia Times (Sept 21, 2002)

[xxi] Mukta Mona (2002)

[xxii] The Bangladesh Observer (September 3, 2003

[xxiii] Express India (August 9, 2003)

[xxiv] GHRD

[xxv] The Human Rights Tribune

[xxvi] Mayer Dak (February 18, 2003; Volume 6, Issue 2)

[xxvii] The Opening Session of the XIII Summit Meeting of the Non-Aligned Movement (24/02/2003)

M.B.I. Munshi (Friday, August 22, 2003)

Dhaka Centre for Law and Economics

House No-50 (new), 750 (old), Satmasjid Road

Dhanmondi R/A

Dhaka-1209, Bangladesh

Closely aligned with the development of international law over the last fifty years has been the increasingly elaborate and complex system of international human rights protection. It has certainly been the main or principal attraction for many students studying international law and has provided successful career opportunities for graduates, activists and campaigners alike and instant publicity for those who seek it. If there appears a tinge of cynicism in this comment, it is deliberate, as I believe my cynicism to be well placed. As we shall see, there is more than a little justification for the ambivalence of many third world countries and especially Islamic countries to human rights law and for their apprehension and concern felt when the issue of human rights is raised. It appears that for much of its history the complicated set of rules, laws, instruments, bodies and institutions created for the international protection of human rights has been inextricably linked to international politics and the economic ideals and needs of the great powers. This is one level of the argument put forward by detractors (especially myself) that will be considered and addressed in this part but there is a more fundamentally and intellectually stimulating dispute centering on the idea of cultural relativism that will also be examined in some depth.

The debates and discussions on these issues have been impassioned and at times vitriolic expressing a profound shift in perspectives relative to the empowering of previously impoverished countries and in some cases inspired by the outspoken comments of their leaders. In particular, Dr. Mahathir Bin Mohamad (Prime Minister of Malaysia) has been the most vocal in denouncing the apparent hypocrisy of the West and its ‘preaching’ on questions of human rights violations in his country and in the Islamic world in general. He has emphasized and promoted the notion of ‘Asian Values’ as opposed to ‘European Values’ and the defence of his position rests on the differentiation of these two cultures and a proposal for mutual understanding and appreciation.[i] My focus will, however, remain on recent events in Bangladesh that seems to support the views of Dr. Mahamad and casts doubt on the sincerety and motivation of human rights activists in Bangladesh and their donors abroad.

I do not propose to go into the details of each and every international human rights covenant or instrument that now exists nor the provisions and institutions created by them as this would require an infinite amount of space and time and is not the purpose of this article. Instead, I wish to explore the intellectual foundations that underpin and support their growth and the claims to their universal validity across frontiers, societies, cultures and creeds and in particular compare them to Islamic values and perceptions that also have a universalistic reach, at least for Muslims (see Part 4).

In Part 1 of this article we had already noted how natural rights had originally been conceived by natural law thinkers through a process of reasoning from nature and the infringement of such rights entitled the citizens to revolt. The American and French Revolutions derived their claims to these rights from natural law ideas that were considered self-evident, simple and indisputable: that certain rights self-evidently pertain to individuals as human beings. Words that held pretensions to universalism as such concepts eventually swept through Europe and America in the nineteenth century and the rest of the world during the latter half of the twentieth century (primarily through the work of the human rights movement) which success seemed to confirm and justify the rightness and moral correctness of their cause. This gradual advance towards the ‘universal’ recognition and acceptance of human rights was also influenced by ‘contractarian’ thinkers such as Thomas Hobbes (1588-1679), John Locke (1632-1704) and Jean-Jacques Rousseau (1712-1778). Hobbes of course had a negative view of natural rights and believed that man enjoyed liberty only in a state of nature in which the life of man is ‘solitary, poor, nasty, brutish, and short.’[ii]In an effort to avoid this nightmare the pace towards a more humane world was quickened and a rights based world realized and achieved (to a greater extent than its proponents could have imagined), especially after the perversities and horrors of the Second World War that seemed to bring Hobbes’ state of nature into being.[iii]

To this list of philosophers should be added the name of Immanuel Kant (1724-1804) who turned away from the state-of-nature theorizing of the previous century in favour of working out the implications of rational human agency and brought the notions of moral truth and freedom to a more sophisticated level that had far-reaching implications for the rights thesis in the nineteenth and twentieth centuries. According to Kant, to understand freedom is to understand the moral law and to act only according to it. No other law counts, because in the realm of freedom there is no other law. This was the direction which natural law was to take, with every form of heteronomy rejected.[iv]He argued that if one acted morally at all, one was committed to a ‘categorical imperative’: one must act in accordance with a rule which one willed to be a universal law of conduct. [v]

The search for further and improved justifications for human rights on Natural Law, Contractarian and Kantian lines still goes on and in almost all the writings available on the subject there is a recognition of the need for its universal acceptance whether derived from Natural Law or other theories that ‘cuts across the distinctions between secular and religious moralities, between egalitarian and elitist moralities, between deontological and teleological moralities, and so forth.’ And that ‘the existence of human rights is independent of whether they are guaranteed or enforced by legal codes or are socially recognized. For if the existence of human rights depended on such recognition or enforcement, it would follow that there were no human rights prior to or independent of these positive enactments.’[vi]

It is no surprise that the twentieth century has been described by some historians as the ‘Age of Extremes’[vii]and this label is apposite for several obvious reasons. The level of violence and brutality was such that had never been witnessed in any previous century and would have been sufficient to warrant the term ‘extreme’, but there was also the pull of other social, intellectual, political and economic forces, that tore much of the world asunder during those turbulent years. As Dr. J.M. Roberts eloquently puts it, “After the First World War, it had still been possible to embrace the illusion that an old order might be restored. In 1945, no one in authority could believe such a thing. This was one great and healthy contrast between the circumstances of the two great attempts of this century to re-order international life. The victory could not, of course, start with a clean sheet on which to plan. Events had closed off many roads, and even during the war crucial decisions had already been taken, some by agreement, some not, about what should follow.”[viii]

In principle, human rights played a significant role during the war years (1939-1945) and became one of the purposes for which the Allied Powers fought.[ix]It was therefore consistent that the realization and protection of human rights became one of the purposes of the United Nations (U.N. Charter Art. 1) and imposed obligations on its member to this end. The Charter was followed by the Universal Declaration of Human Rights 1948, The International Covenant on Civil and Political Rights, The International Covenant on Economic, Social and Cultural Rights, The European Convention on Human Rights and Fundamental Freedoms, The European Social Charter, The American Declaration of the Rights and Duties of Man, The American Convention on Human Rights, The African Charter on Human and People’s Rights and many other subsidiary instruments and specialist treaties dealing with genocide and more recently the constituting of war crimes courts. It was assumed that sovereign States would consent to be bound by the obligations to respect and secure the human rights specified within these instruments in their own territories, for all individuals including their own citizens, but experience has shown that there was at times intense resistance to do so. At this late stage it would have been impossible to resort to natural law standards and theories to convince reluctant States to adopt such intrusive obligations but pressure from the international community have ‘forced’ hesitant countries to conform.[x]

Worded in this way the human rights movement starting from natural law and universalistic tendencies and then moving to a defensive posture in the face of positivist theories (and then adopting them), being then required to resort to coercion and inducements to seek the required consent (for legal obligations to arise) and then more recently threats and possible use of force to assure compliance, one would be forgiven for expressing doubts as to the viability (and validity) of the whole endeavour. In fact, these arm twisting tactics only have significance for smaller and less powerful nations as Washington’s rejection of the Kyoto Protocol, the international bio-weapons treaty, its antipathy to the International Criminal Court and the undermining of the Anti-Ballistic Missile Treaty would seem to indicate.[xi]These are only a few of the more minor objections that have surfaced but the more serious criticisms pose a substantially more damaging assault on the human rights agenda[xii]

[i] See Dr. Mahathir Bin Mahamad’s speech at the opening session of the XIII summit meeting of the non-aligned movement (24.02.2003); The 54^th UMNO General Assembly (19.06.2003); University Al-Azhar on ‘Muslim Unity in the Face of Challenges and Threats’ (21.01.2003); Tokyo, Japan in the Symposium on Islam at the United Nations University (13.12.2002); The Extraordinary Session of the Islamic Conference of Foreign Ministers on Terrorism (01.04.2002)

[ii] Leviathan; J.W. Harris

[iii]See Burns Weston – ‘Human Rights’ (20 New Encyclopeadia Brittanica (15^th ed. 1992); David Sidorsky – ‘Contemporary Reinterpretations of the Concept of Human Rights’ (1979).

[iv] M.D.A Freeman

[v] J.W. Harris

[vi]A. Gewirth; See also H. Lauterpacht – ‘International Law and Human Rights’ (1950) Ch. 5; J.W. Harris – ‘Legal Philosophies’ (2^nd Ed., 1997); M.D.A Freeman – ‘Lloyd’s Introduction to Jurisprudence’ (6^th Edition); Immanuel Kant –‘Critique of Practical Reason’ (1879); A. Gewirth – ‘The Epistemology of Human Rights’ (Social Philosophy and Policy (1984), Vol. 1, 1-24); Margaret Mead – ‘Some Anthropological Considerations Concerning Natural Law (1961) 6 Natural Law Forum 51); J.M. Finnis – ‘Natural Law and Natural Rights’ (1980); J.A. Rawls – ‘A Theory of Justice’ (1971); Rosalyn Higgins – ‘Encouraging Human Rights’ (1987).

[vii]Eric Hobsbawm – ‘Age of Extremes (1994)

[viii] J.M. Roberts – ‘The Penguin History of the World’ (1995); See also Kazuo Ishiguro – ‘The Remains of the Day’ (1989)

[ix] UN Declaration of January 1, 1942); Also consider the humanitarian law of war which was an influential impetus for action in the nineteenth and twentieth centuries and precedents relating to humanitarian intervention; St. Petersburg Declaration of 1868; The Paquete Habana (Supreme Court of the United States) 175 U.S. 677, 20 S.Ct. 290); Hague Convention 1907; The Minorities Regime- Minority Schools in Albania (Advisory Opinion, P.C.I.J. 1935);London Agreement of August 8, 1945, (59 Stat, E.A.S. No. 472); Judgment of Nuremberg Tribunal – International Military Tribunal, Nuremberg (1946) 41 Am.J.Int.L. 172 (1947); Steiner & Alston – ‘International Human Rights in Context’ (2000)).

[x] Paul Sieghart – ‘The International Law of Human Rights’ (1995); D.J. Harris –‘Cases and Materials on International Law’ (1998); Louis Henkin – ‘International Law: Politics, Values and Functions, at 208); Rosalyn Higgins –‘Encouraging Human Rights (1987)

[xi] See Abdul Quader Chowdury – ‘Coup de Grace to Multi-literalism (sic) and Americanisation’ Holiday (August 8, 2003); See for a contrary take on the issue Oscar Schachter – ‘International Law in Theory and Practice’ (1991), at 5.

[xii] Martti Koskenniemi – The Pull of the Mainstream (88 Mich. L. Rev. 1946 (1990); Steiner & Alston.

M.B.I. Munshi (Friday, August 15, 2003)

Dhaka Centre for Law and Economics

House No-50 (new), 750 (old), Satmasjid Road

Dhanmondi R/A

Dhaka-1209, Bangladesh

In the past, one may have legitimately questioned my choice of subject for discussion as tending to be aimed at only a select audience of experts and having only a partial relevance to great issues facing our global society. Indeed, even in academic circles in the West, Islamic Law is still not considered a ‘real subject’ unless it is confined to some nether region of an orientalist department far removed from the real questions concerning policy makers and only of interest to a tightly knit coterie of academics. After ‘September 11’ and the ‘Clash of Civilization’ thesis I doubt whether Islam and Islamic Law in particular can be ignored as a subject for (or participant in) general academic and scholarly debate and it is time that its contributions to a world civilization be explored and acknowledged.

I have concentrated in two previous articles on Islam and the modern world. In my first article, I dealt with Islam and the spread of capitalism and globalization from an historical and economic perspective.[ii] In my second I looked at Islam as a political and legal theory and made comparisons with the notion of revolution in Western thinking.[iii] My purpose has not been to create a field for ‘reverse orientalism’ but an effort to challenge western conceptions of the superiority of their own ideas and to[iv] take Islam out of the confines of Islamic Studies Departments and bring it into the mainstream of intellectual thought. In other words, I hope to see Islam not as the object of debate[v] but a voice and participant within the larger debates now taking place. This will only occur if Islamic countries take this role seriously and bring Islamic thinking to the forefront of international discussions and discourse.

In the first part of this series of articles I will carry out a narrative discussion of the foundations of international law with a few argumentative leads. In the second and third parts I will deal with the two most contentious issues that divide opinion and appear to weaken the foundations on which international law has been built. I will principally concern myself with a Muslim perspective that has been critical of human rights law and the moral arguments and cultural relativism that exists within the international framework for human rights protection. In particular, the impression that human rights law is applied selectively and at times hypocritically to victimize and harass Islamic nations (and others) to follow the will of larger and more powerful nations in their ever increasing need to exploit markets and seek support in their military adventures and territorial designs. This article will therefore question much of the standard interpretations and impressions on the subject that have generally painted a glowing picture of international law and its initial acceptance by ‘new nations’.[vi] I will provide a case study of Bangladesh and recent media reports of oppression of minorities in that country as an example to substantiate these allegations. In the third part, I will deal with the laws of war based on the United Nations Charter and the rulings and judgments of the International Court of Justice. Recent trends in this area have probably caused the most concern for Muslim countries. The fourth part will provide a historical and critical analysis of Islamic international law from its development to its decline and future prospects. I see my work not as an original or novel undertaking but an educative one, which I hope will enlighten the reader and also provide relief to myself, as these issues have been nagging at my soul for many years without respite.

When I studied International Law and International Protection of Human Rights more than ten years ago there was a sense of optimism that we were reaching a point where order was finally being brought into international relations and being supervised by bodies capable of taking on this onerous task. There was certainly much reason for optimism as the use of force by states was apparently being regulated by the United Nations Charter and there was a perceived increase in the role and respect for the International Court of Justice. In addition to this was the importance being given to human rights and their enforcement. However, even at this late stage in its development their appeared to be discontent especially amongst developing nations as to the singularly western orientation of this law and the feeling of helplessness in the face of such change and pressure to conform. A question that was constantly raised was where international law derives its legitimacy and justification as many of the countries subject to it were not even in existence when it was created. There was also the feeling that powerful countries could ignore it at will or influence and bend it to meet their national interests and requirements - a view that still persists today. A view that has becoming more prevalent after the War in Iraq and clearly not being influenced by pleas to the contrary.[vii]

These were the same questions and concerns that were posed when relations between states became of increasing importance in the 16^th and 17^th centuries on the European continent. As Prof. Harris explains, “How could law, not made by princes, bind princes amongst themselves? The answer was to redeploy the classical Roman concept of Ius Gentium. This originally referred to the law which Roman authorities enforced in dealings between citizens and foreigners, or between foreigners, as opposed to the Ius Civile which was applicable between citizens. It now came to cover relations of war and peace, treaty-making and allegiance, and so on. But it is one thing to find a label; from where was to come the content? Only from natural law, that is, from propositions which …no one in reason could dispute.” [viii] By this time natural law had become increasingly secularized and its rational basis stressed but subsequent centuries were to show how flimsy and fragile these ideas really were in the face of nationalistic ambitions and racist ideology. It was through the writings of Grotius (1583-1645), Vitoria (1486-1546), Suarez (1548-1617), Gentili (1552-1608), Zouche (1590-1661) and Puffendorf (1632-1694) that international law became systemized and rationalized using natural law methods to discover and if necessary create new law. Grotuis’s main concern was to establish a system of international law to regulate the affairs and warfare of the rising nation states but the edifice was supported on political expediency rather than purely on natural law judgments. [ix]

In a similar way, natural rights were ‘discovered’ using the same process of reasoning from nature, as such rights were deemed to be evident to reason and inherent in the nature of man by virtue of his potential ability to exercise rational choice (American colonists in 1776 and the French National Assembly in 1789). However, in regard to political rights and obligations a competing philosophy based on ‘contractarian’ reasoning put forward the conception of a social contract where citizens surrendered natural liberty and subjected themselves to an unlimited state sovereign.[x] A compromise or amalgamation between contract and nature was achieved through the work of John Locke and Jean-Jacques Rousseau in differing degrees but allowing such rights to survive entry into civil society. [xi]

Jumping several centuries from the time of Grotius to about 1880, when, “Europeans had conquered most of the non-European states, which was interpreted in Europe as conclusive proof of the inherent superiority of the white man, and the international legal system became a white man’s club, to which non-European states would be elected only if they produced evidence that they were civilized.”(Michael Akehurst)[xii] As befits (and is indicative of) this change in status of non-Europeans, natural law had also completely lost its lustre and people were looking to positivism as a means to fill out the spaces in international law.[xiii] It was felt that natural law was devoid of any scientific or empirical basis and objectively unverifiable and so carrying little conviction for unbelievers. Legal positivism, on the other hand, required that no element of moral value enters into the definition of law and that legal provisions are identified by empirically-observable criteria, such as legislation, decided cases and custom.[xiv] Applied to international law, positivism regarded the actual behaviour of states as the basis of international law. The chief proponents of this view were Cornelius van Bynkershoek (1673-1743) and Emerich von Vattel (1714-67) who emphasised the inherent rights which states derived from natural law, but said that they were accountable only to their own conscience for the observance of the duties imposed by natural law, unless they had expressly agreed to treat those duties as part of positive law. Also, his frequent use of the term sovereignty and the meaning and nuances he gave to the word had devastating consequences when put in the minds of irrational dictators and their intellectual lackeys.[xv] Paul Sieghart puts these developments into context:

“… during the first part of the twentieth century the theory of legal positivism, remained in the ascendant. Combined with a strict application of the doctrine of national sovereignty, it effectively excluded the possibility of judging, and therefore, criticizing, the treatment of any people by its own government. The apotheosis – and the consequent downfall of that position came in National Socialist Germany in the late 1930’s and early 1940’s, where historically unprecedented atrocities were perpetrated by the regime…Many of these atrocities were carried out with complete legality under National Socialist legislation … Moreover, those laws had been enacted by a legislature lawfully installed under the constitution of a sovereign State. According to the strict doctrine of national sovereignty, and foreign criticism of those laws was therefore formally illegitimate; according to the strict positivist position, it was also meaningless.”[xvi]

(The influence of the Soviet Union, the Third World and Socialism on international law will be discussed in Parts 2 and 3 where their inclusion would be more instructive, logical and relevant with the sequence of argument)

Out of the ashes of the Second World War came the establishment of new intergovernmental organizations such as the United Nations, the Council of Europe and the Organization of American States. International law was now to be concerned with the relations between governments and their own subjects. How States treat their own subjects was now the legitimate concern of international law and there was a superior standard not based on natural law theories (and thereby countering legal positivism as a source for objections) but on common consent. [xvii] In an effort to make the world not only a more humane place there was also the urgency to make it a safer place too and this was thought to be possible only by making war illegal except in the case of the dual provisions for self-defense and collective security controlled and ‘enforced’ through a legal and political regime set out in the United Nations Charter and whose provisions were to be authoritatively interpreted by the International Court of Justice [xviii]

This exclusion of natural law theories and standards as a source for international law received its widest and most influential support from the Statute of the International Court of Justice. Article 38 (1) of the Statute provides that the court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply international conventions, international customs, general principles of law recognized by civilized nations and judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law: “The significance of this enumeration lies in its exclusiveness. It rules out other potential law-creating processes such as natural law, moral postulates or the doctrine on international law. Conversely, the court is bound to take into consideration any asserted rule which bears the hall-mark of one of these three law-creating processes. It is immaterial whether such a rule is also claimed as their own by any of the various brands of natural law, has its origin in considerations of humanity, or is postulated by the standards of civilization.”[xix]

Similarly, early writers on international law had stated that a treaty would be void if it was contrary to morality or to certain (unspecified) basic principles of international law. According to Akehurst, the logical basis for this rule was that a treaty could not override natural law. With the decline of the theory of natural law (outlined above) and the revival of the rule under a new name (the ‘peremptory norms of general international law’ or ius cogens) an alternative method and justification was adopted (in a similar manner to that used in the human rights field and in Article 38 (1) of the Statute of the I.C.J.) that a rule cannot become a peremptory norm unless it is accepted and recognized as such by the international community as a whole. It is still a subject of debate whether such rules exist but genocide, slavery and prohibition on use of force have been put forward as candidates. [xx]

In the year 1993, when I studied international law as a postgraduate student at the London School of Economics it was being acclaimed that the world had reached a new era of legality, order and humanity based on the work first undertaken by President Woodrow Wilson and administered by the hapless League of Nations and its counterpart the Permanent Court of International Justice. As we all know from our history books there was nothing permanent about this arrangement and in a matter of ten years from my graduation there is already talk of the demise of the present structure of international law and the institutions that uphold it. The recent pessimism is due to the actions of the United States and its few allies over the last five years. If a specific moment in time can be identified for this turning point in attitude it must be the few months preceding the War in Iraq and the many months after its proclaimed conclusion by President George W. Bush. This feeling of foreboding is amply reflected in the resignation letter of John Brady Kiesling from his position as Political Counselor to the American embassy in Greece,

“The policies we are now asked to advance are incompatible not only with American values but also with American interests. Our fervent pursuit of war with Iraq is driving us to squander the international legitimacy that has been America’s most potent weapon of both offense and defense since the days of Woodrow Wilson. We have begun to dismantle the largest and most effective web of international relationships the world has ever known. Our current course will bring instability and danger, not security ... The sacrifice of global interests to domestic politics and to bureaucratic self-interest is nothing new, and it is certainly not a uniquely American problem. Still, we have not seen such systematic distortion of intelligence, such systematic manipulation of American opinion, since the war in Vietnam ... We are straining beyond its limits an international system we built with such toil and treasure, a web of laws, treaties, organizations, and shared values that sets limits on our foes far more effectively than it ever constrained America’s ability to defend its interests.”

Over the last six centuries we have witnessed at least three major transformations in international law, are we now witnessing the fourth such transformation and if so, with what consequences for the world? [xxi] More relevant for this article is the reasons behind the apprehensions and distrust that is engendering much pessimism amongst commentators and lay men alike [xxii]

[i] See Henkin – ‘How Nations Behave’ (2^nd ed., 1979); Henkin – ‘International Law: Politics and Values (1995)

[ii] ‘The Failures of American Capitalism and the Islamic Alternative’ (2001)

[iii] ‘The Unjust Ruler and the Islamic Law of Rebellion’ (2003)

[iv] see my articles ‘September 11 and the New World Disorder’ (2002) and ‘Democracy and the Question of Legitimacy’ (2000)

[v] (Notable examples include the works of Prof. Bernard Lewis and his books ‘What Went Wrong?: The Clash Between Islam and Modernity in the Middle East’ (2002) and ‘The Crisis of Islam – Holy War and Unholy Terror’ (2003)

[vi] See Henkin – ‘How Nations Behave’ (2^nd ed., 1979); Henkin – ‘International Law: Politics and Values (1995)

[vii] Michael Akehurst – ‘A Modern Introduction to International Law (Sixth Edition) pp. 1-11); Oscar Schachter – ‘International Law in Theory and Practice’ (1991) at 5); Stanley Hoffman – ‘The Study of International Law and the Theory of International Relations’ (1963 Proc. Am. Soc. Int. L. 26).

[viii] Legal Philosophies (2^nd Edition

[ix] See M.D.A. Freeman – ‘Lloyd’s Introduction to Jurisprudence’ (Sixth Edition pp. 101).

[x] Legal Philosophies; Thomas Hobbes – ‘The Leviathan’

[xi] See Part 2 for detailed discussion; See also H. Lauterpacht – ‘International Law and Human Rights’ (1950) Ch. 5

[xii] Michael Akehurst

[xiii] See U.S. v. Mexico (1926) 4. R.I.A.A. 26 (North American Dredging Company Case)

[xiv] Legal Philosophies

[xv] Michael Akehurst; See further, Austin J. – The Province of Jurisprudence Determined (ed. Hart (1954).

[xvi] The International Law of Human Rights (1995 reprint); See also Louis Henkin – International Law: Politics, Values and Functions (216 Collected Courses of Hague Academy of International Law 13 (Vol. IV, 1989), at 208)

[xvii] Paul Sieghart

[xviii] See D.J. Harris – ‘Cases and Materials on International Law (5^th ed., 1998, Ch. 1)

[xix] Schwarzenberger - ‘International law’ (3rd ed., 1957, pp. 26-27); Waldock – ‘General Course on Public International Law (1962 –II) Hague Recuil 54.); Parry – ‘The Sources and Evidences of International Law (1965), pp. 103-105); (D.J. Harris – ‘Cases and Materials on International Law (5^th ed., 1998, Ch. 2); See Akehurst – ‘Equity and general principles of law’ (International and Comparative Law Quarterly, Vol. 25, 1976, p.801; Oscar Schachter – ‘International Law in Theory and Practice’ (1991) at 50; Steiner & Alston –‘International Human Rights in Context’ (2000).

[xx] See Article 53 of the Vienna Convention on the Law of Treaties 1969; Akehurst’s Modern Introduction to International Law (7^th revised ed. 1997), at 39; Restatement (Third) The Foreign Relations Law of the United States (American Law Institute (1987) Vol. 2, 161 at S. 702); Steiner & Alston – International Human Rights in Context (2000)

[xxi] See further, Mahbubul Karim (Sohel) – ‘Iraq is not Vietnam, but …’ (Holiday – August 8, 2003); Abdul Quader Chowdhury – ‘Coup de grace to multi-literalism (sic) and Americanization’ (Holiday – August 8, 2003).

[xxii] See in particular Martti Koskenniemi – ‘The Pull of the Mainstream’ (88 Mich. L. Rev. 1946 (1990); Steiner & Alston – International Human Rights in Context (2000)

M.B.I. Munshi (Saturday, August 9, 2003)

Dhaka Centre for Law and Economics

House No-50 (new), 750 (old), Satmasjid Road

Dhanmondi R/A

Dhaka-1209, Bangladesh