Global Policy Forum

By Bill Bowring

Bill Bowring is professor of human rights and international law at London Metropolitan University. He considers the merits of the legal justification invoked by the United States and Britain in their attempts to win approval for a possible military campaign against Iraq.

Both Tony Blair and George W. Bush are, at the time of writing, under considerable pressure from public opinion to obtain a further U.N. Security Council resolution before commencing the war against Iraq which both desire.

It is clear to all that Resolution 1441 of September 8 2002 did not contain the magic words -- "all necessary means" -- needed to authorise the use of force.

But it will be recalled that in December 1998 the United States and Britain responded to Iraq's withdrawal of cooperation with the U.N. weapons inspectors with stunning use of force without any Security Council resolution. Operation Desert Fox lasted four days and nights and involved more missiles than were used in the entire 1991 Gulf War.

Why have the United States and Britain returned to the Security Council? Does the present frantic activity directed at securing a resolution authorising use of force signify a conversion to compliance with international law?

This seems unlikely. For decades after its creation on June 26, 1945 the United Nations and the international law it enshrines seemed less than relevant. This was not least because of the dropping of the atomic bomb by the United States on Hiroshima on August 6 and Nagasaki on August 9, 1945.

The U.N. Charter plainly prohibits the use of force except as authorised by the Security Council, except in self-defence. But another world war was prevented not by the Charter but by the nuclear "mutually assured destruction" of the two super-powers.

Most local wars -- in Nicaragua and Afghanistan for example -- were waged with impunity by the superpowers or their surrogates, within their respective spheres of influence.

The United States refused to ratify the main U.N. human rights treaties, and for the most part ignored the United Nations. The Soviet Union ratified all these covenants and treaties, but continued to perpetrate gross violations of human rights. The rhetoric of international legal justification was rarely heard.

NEW BEGINNING

The spectacular end of the Cold War in 1989-1991, from the demolition of the Berlin Wall to the collapse of the Soviet Union, appeared to promise a new beginning. But events from then onwards present for international law a tragedy in three acts: consummation, seduction, and rejection -- or degradation.

The consummation of law and politics in 1990 appeared to be conclusive. On August 2,1990, Iraq invaded Kuwait, and -- after a remarkably lengthy pause -- on November 29, 1990 the U.N. Security Council adopted Resolution 678. The Soviet Union, still just in existence, voted for the use of force -- the incorporation in the resolution of the words "all necessary means". China abstained. For the first time, the "international community" appeared to act practically unanimously, and in accordance with the Charter.

Consummation was short-lived, however. On March 24, 1999, after the breakdown of the Rambouillet negotiations over the fate of Kosovo and the Kosovars, Operation Allied Force was launched.

This was the start of a 78-day bombing campaign, which was never sanctioned by a U.N. Security Council resolution. Resolution 1244 did not endorse the use of force, but sought to deal with its consequences. The Independent Commission on Kosovo judged the action to have been "illegal but legitimate". Scholars debated the question whether there was a new international law of humanitarian intervention, an extension of the Charter.

The third act in this tragedy was the blatant and cynical rejection of international law in the campaign against Afghanistan, following September 11.

It is clear that in resolutions 1368 (2001) of September 12, 2001, and 1373 (2001) of September 28, 2001 the Security Council neither endorsed nor authorised the military action, merely noted that it was taking place, and further noted the allies' justification of self-defence.

So I repeat: why the return to the Security Council? Many scholars of international relations deny that law, or indeed the United Nations itself, have any influence whatever on the actions of the great powers.

The recently published and highly influential book by John L. Mearsheimer of the University of Chicago, "The Tragedy of Great Power Politics", is a case in point.

DICTATES OF REALISM

In his view: "There is little evidence that (international institutions including the U.N.) can get great powers to act contrary to the dictates of realism." Neither Britain nor the United States has impeccable democratic credentials. Britain has made it clear that military action could commence without consulting Parliament.

The United States is led by a president whom many voters believe did not win the presidential election. In both countries, public opinion is feared by their respective leaders. And it is clear that international legality, and in particular action through, and authorised by the United Nations, is highly valued by the public.

Moreover the United Nations, for all its imperfections, is the only forum in which the less powerful states can make their voices heard. Not only can they speak out, but the U.N.'s mechanisms, such as the General Assembly and Security Council, have the capacity on occasion to restrain the powerful.

Michael Byers (professor of law at Duke University in North Carolina) has argued that "although law is necessarily the result and reflection of politics, law nevertheless retains a specificity and resistance to short-term change that enables it to constrain sudden changes in relative power, and sudden changes in policy motivated by consequentially shifting perceptions of opportunity and self-interest".

International law is produced by and reflects international politics. The United Nations and its Security Council are political institutions, in which the most powerful states inevitable call the shots.

But law also has a life of its own, as Bush and Blair now find to their discomfort.

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