US Action Is Not Illegal
- By Ram Jethmalani. Column in the Asian Age, Bombay edition, 31st March 2003. Emphasis have been added.
Whether the US-British action against Iraq is legal is a question which doubtless troubles everyone devoted to maintaining the primacy and reign of international law as the binding norm for the conduct of states. Opinions on this issue are clearly diverse. The attorney general of Britain, Lord Goldsmith, for example, in his advice to the British Cabinet has argued that the action is perfectly legitimate. The verdict of my friend Fali Nariman however is directly to the contrary. I feel that my friend Fali is clearly wrong and the attorney general of Britain is right in his conclusion, though part of his reasoning is questionable.
Lord Goldsmith�s argument runs somewhat as follows: UN Resolution 1441 passed in November last involves a finding that Iraq is in material breach of earlier Security Council resolutions. The earlier resolution which had been passed at the time of last Gulf war directed Iraq to destroy all its weapons of mass destruction, particularly the chemical and bacterial ones under UN supervision. It cannot be denied that at the time of this resolution Iraq possessed weapons of mass destruction, it had used them liberally in the war against Iran as well as against its own Kurdish population. The UN inspectors were doing what Iraq was expected to do itself. Even this work of the inspectors was interrupted in 1998 when they were forced to walk out of Iraq. It cannot also be denied that many offending weapons had escaped destruction by the inspectors. The burden of proof that these were destroyed after the inspectors left is on Iraq. It has not been able to account for their destruction. Even if it could, a technical breach of the UN mandate would still remain because the destruction had not been under UN supervision. Thus the whole world is exposed to serious insecurity and danger of mass damage and destruction at the whim and caprice of a ruthless dictator with a streak of insane cruelty in his character.
The learned attorney general then proceeds to argue that because Resolution 1441 does not in terms provide that a further decision of Security Council to sanction force would be required for any future punitive action, therefore, none is required and the US and Great Britain can proceed to act on their own. With due respect, the attorney general is here on weak ground. The action needs a more solid base. Fortunately, one is easily discovered.
Mr Nariman on the other hand argues that Article 2 (4) of the Charter outlaws use of all force and the only exception is Article 51 which preserves the right of individual or collective self-defence against armed attack. He then proceeds to argue that the right of self-defence preserved by Article 51 is only against an imminent aggressive attack and no pre-emptive military action can legitimately be resorted to. I mean no disrespect, but Mr Nariman is clearly wrong on each of the three steps in his argument.
Article 2 (4) must be read in the context of Article 1 and other parts of Article 2 itself. The two articles are reproduced.
ARTICLE 1
The purposes of the United Nations are:
ARTICLE 2
The Organisation and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.
Article 2 (4) does not prohibit the use of force in all circumstances. It only prohibits it when directed against the territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the UN.
Neither the maligned President Bush nor his faithful ally, British Prime Minister Tony Blair wants to capture even one square inch of Iraqi soil. Their purpose is not occupation of territory but elimination of a ruthless ruler. All they want is Saddam Hussein to relinquish power. His going will bring about the political independence of the Iraqi people. If the people of Iraq were free and had the necessary force they would get rid of Saddam Hussein themselves.
That he is a person totally devoid of compassion; that he cut the tongues and ears of his critics, that he killed children in front of their parents, that he decapitated prostitutes then displayed their heads in the streets, that he kept his prisoners in cells as small as coffins, that he made his biological or chemical experiments on them too are notorious facts of Iraqi history.
He rewarded the families of Palestinian kamikazes at the rate of $25,000 each; and that he never gave up his arsenal of deadly weapons are blood curdling facts. There is no reason to stretch the law in his favour. We need not be worried about or influenced by an ungrateful Europe for which a quarter of a million Americans died in the Second World War to rescue it from the scourge called Hitler and reconstruct it with billions of dollars.
Saddam is not even a friend of the Muslims. A million innocent lives were lost in frivolous and yet strangely tragic war against Iran. The present war is a war to rescue the people of Iraq from their megalomaniac persecutor. It will restore their human rights and dignity. It will redeem hunger and the malnutrition of dying children. In other words this is a war to further the purposes of the UN enumerated in Article 1. Article 2(4) does not prohibit such a war and it is not necessary to resort to Article 51.
The construction put upon Article 51 by Nariman is, with due respect, wrong. It is true that this right can be exercised against an armed attack, but that it must be an imminent armed attack is not the requirement of the Article. Besides, possession of unaccounted weapons of mass destruction are an armed attack upon all civilised nations. It is not necessary that the world must wait till the chemical poisons or lethal bacteria are actually let loose on innocent populations.
Modern international law continues to recognise the customary right of humanitarian intervention. Notwithstanding the judgment of the International Court of Justice in the Corfu Channel case and the Military and Para-military Activities case, armed intervention in a manner not inconsistent with the Charter of the United Nations is still permissible. That Security Council�s Resolution 1441 of November last and the earlier resolutions have been contemptuously flouted is not in dispute. If any one or more states can proceed to remedy this breach with their own power, there is nothing in international law to prevent them. Unilateralism to preserve the values of the Charter is not only a right but a duty.
When Indian forces marched into Goa or into Hyderabad to displace the Portuguese or the despotic Nizam, India did not countenance any argument that we were in breach of the Charter. When the Israelis landed their commandos at Entebbe Airport in 1976 to free the passengers of a hijacked aircraft no one made the argument that this use of force was unlawful and in violation of the Charter. No imminent armed attack contemplated by Nariman was involved in those cases.
It was doubtless argued once upon a time that the manner in which a government treats its citizens is its own business and no other state can intervene to end the bad governance. This was thought to be a matter of domestic jurisdiction. But today there is substantial body of opinion and practice taking the view that when a state commits cruelties and persecution of its own nationals in such a way as to deny their fundamental rights and to shock the conscience of mankind, the matter ceases to be of sole concern to that state and intervention in the interest of humanity is legally permissible.
Elements of humanitarian intervention can be seen in the action, beginning in April 1991, of certain states (primarily the US, with units from several other states, including the UK) in certain border areas of northern Iraq in order to provide emergency aid to large numbers of Kurdish refugees, fleeing after a failed insurrection against the government of Iraq. The situation of the refugees, and the pressures on the borders of neighbouring states, prompted the Security Council to condemn the repression by Iraq of the Iraqi civilian population and to insist that Iraq allow immediate humanitarian access: SC Res. 668 of 5 April 1991. Overflights by British and US military aircraft delivering supplies were followed by the entry of military units from a number of states into northern Iraq to establish (and if necessary defend) locations where refugees could be offered assistance in safety. The declaration issued at the end of the London Economic Summit 1991 included the following passage:
Question of international law must not be decided by electoral politics. By the 51st Article of the Indian Constitution, India is constitutionally obliged to act in accordance with international law. India must therefore support what is being done in Iraq. One only hopes that the operation will be swift and painless and gigantic effort will be made to bring back peace and prosperity to the people of Iraq under a pluralistic secular democracy. For more than 50 years a single party has ruled that state and Saddam has controlled that party for more than half of its tenure. He must leave or be compelled to leave.