International Law as the First Casualty of the Iraqi War? Head, Academic Affairs Office and Chair, Department of Jurisprudence and Legal Philosophy, Philippine Judicial Academy, Professor of Public International Law, College of Law, Cagayan Colleges Tuguegarao
Byline: Fr. RANHILIO CALLANGAN AQUINO
WHILE glued to television footage of coalition incursions into Baghdad, a brotherpriest asked me what, if any, was left of international law? The Security Council had adamantly refused to pass a resolution that would have authorized the mobilization of armed forces against Iraq, but the US-UK partnership invaded Iraq anyway and have since relentlessly pummeled it with uncontested superior power. So, has international law been this wars first casualty? I do not think so, and that is what I will argue.
The question of whether or not the war against Iraq is legal does not lend itself to easy resolution. It may very well be that no one answer will meet with consensus. I will not venture a position, except to insist that simplistic positions - such as an unqualified condemnation on the basis of an archaic version of the "justwar" theory - are exactly that: simplistic! It is however important to be clear that nonendorsement by the UN Security Council is not synonymous with illegality. Armed action by one state against another need not be illegal, even without Security Council sanction. A state would arguably be justified in forcibly interdicting another state that had pointed its missiles in its direction, was poised to blast them off after having openly threatened to do so. No Security Council resolution would be needed to legitimize a state's preemptive act in such a case. To protest that this was not the case with the coalition vis-a-vis Iraq is to beg the question, because that is exactly one of the pivotal questions in resolving the issue of legitimacy.
In a sense, the coalition decision not to seek a second Security Council resolution, and to commence hostilities did the United Nations a favor. France and China, it was reported, would veto a second UN resolution either setting a deadline or providing authority for the use of force, and there was good reason to believe that they would in fact wield their veto-power. Had the coalition launched its offensive, a veto notwithstanding, that indeed would have compromised very seriously the competence and the efficacy of the Security Council, and in fact of the United Nations itself.
What the impasse at the Council itself does indicate, however, is that the Yalta-era compromise of conceding to a privileged circle of "powers" the veto power may have outlived its usefulness. Not that all members of the Security Council would have done better to back the United States, rather the threat of the exercise of the vetopower might have effectively rendered the Security Council incapable of dealing further with the issue. The "double-veto" only highlights the problem, because it ultimately leaves to the select five the decision of whether or not an issue will be subject to their veto power.
The failure of the United Nations to hold the coalition back might not appear as disastrous to it if we disabuse ourselves from the inclination to think of the United Nations as a super-state. It is not a superstate, nor even close to one, nor was it organically meant to be one. When a significant segment of the population of a state, or of its armed forces initiates action without governmental authority, one is right to suspect that a rebellion is afoot, or that government control is compromised, or that belligerency must be recognized. But when one considers that the United Nations is principally an organization of states with organs that in many instances resemble State mechanisms but in several respects are also different, than it should be clear that the coalition initiative does not have the same effect on the United Nations as unauthorized troop movement would have on a State. …