Stephen VasciannieMY VIEWS on the current controversy over a military attack on Iraq are based primarily on legal considerations. International Law, as enshrined in the United Nations Charter and in customary law, takes a strong position against the use of force. Thus, Article 2(4) of the Charter stipulates that "all (United Nations) members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of other States, or in any other manner inconsistent with the purposes of the United Nations".
This prohibition, however, is made subject to two exceptions within the Charter. First, Article 51 affirms each State's right to self-defence. It specifies that: "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 measures necessary to maintain international peace and security".
The second exception is to be found in Chapter VII of the Charter, which is headed "Action with respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression". Generally, if the United Nations Security Council finds that there is a threat to international peace and security, that a breach has occurred, or that a State has undertaken acts of aggression, the Security Council may take enforcement action (including military force) as a means of rectifying the situation.
Thus, the Charter implies that if a State uses force outside the scope of the two exceptions self-defence and Chapter VII that action will be contrary to International Law. State practice since the Charter entered into force, and the writings of some jurists from different parts of the world, suggests that on some matters, customary international law may be different from the strictures of the UN Charter on the use of force.
So, for instance, on one view, States may use force in circumstances where this is necessary to curtail a humanitarian crisis, or where force is required to ensure the protection of nationals of the intervening States. Each of these putative customary law exceptions to the prohibition in Article 2(4) of the Charter prompts a significant stream of questions: if humanitarian intervention is permissible, what should be the threshold point for using force, and how, if at all, can the doctrine of humanitarian intervention prevent the temptation for abuse by powerful States?
MASS DESTRUCTION
In the specific case of Iraq, no clear reliance has been placed by the United States and Britain on the putative exceptions to the prohibition on the use of force set out in the United Nations Charter. Rather, the gist of the argument for intervention from a legal perspective has been that Iraq, in pursuance of a scheme to develop weapons of mass destruction, as well as chemical and biological weapons, has violated and continues to violate various Security Council Resolutions. Starting with that contention, the argument continues that the Security Council should authorise pre-emptive strikes on Iraq in order to stymie the weapons programme, and to promote "regime change".
Stripped to its legal essentials, the case for military intervention in Iraq at this time may be sustained only if the use of force is authorised by the United Nations Security Council pursuant to Chapter VII. The United States may suggest that action against Iraq is justified as self-defence, but this would be unconvincing in law.
Assuming, for the sake of argument, that Article 51 of the Charter allows anticipatory self-defence, it is still difficult to agree with the notion that the basis for an anticipatory attack has been established. In the customary law concerning self-defence, it is generally agreed that a State may anticipate a subsequent attack when the subsequent attack has almost been launched, that is, it is "instant, overwhelming, leaving no choice of means and no moment for deliberation" (the Caroline Incident). Iraq's weapons programme does not seem to satisfy this precondition.
From a legal point of view, then, the challenge for the United States, Britain, and other countries wishing to intervene in Iraq, is to convince the members of the Security Council to vote for a resolution authorising force under Chapter VII. To do this, the protagonists will need to convince the permanent members of the Security Council including France, Russia and China that current activities in Iraq amount to a threat to, or breach of international peace and security, or an act of aggression.
If, therefore, the United States and Britain opt to use force without a Security Council resolution, this will be unsustainable under International Law. One point to bear in mind, though, is that when powerful States perceive that their key security interests are threatened, they are sometimes willing to disregard the terms of International Law. That opens the way for a political argument about the pros and cons of the proposed military action in Iraq.
Stephen Vasciannie is Professor of International Law at the University of the West Indies.
