Just war theory

Humanist, May-June, 2003 by Rodrigue Tremblay

Does the Bush administration have the right under international law to attack and invade a sovereign nation in order to change its government? On March 20, 2003, a U.S.-led war against Iraq began when cruise missiles and laser-guided bombs were fired at the city of Baghdad and its surroundings. Since this war hasn't been formally approved by an international court of justice or by the United Nations, isn't the U.S. government in a legal quandary by having U.S.-led forces invade and the U.S. military occupy another country? A basic tenant of the United Nations Charter is the protection it accords to the domestic sovereignty of its member states. Therefore, changing the governments of member countries isn't one of the prerogatives of the UN; changing the governments of sovereign countries is even less a prerogative of the United States. The UN Charter is very clear. It outlines the cardinal rule of international law that the territorial integrity of all states must be respected. No international order is possible without this principle. Article 2.3 and Article 2.4 of the charter stipulate that:

2.3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

2.4. 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 UN.

In arrogating the right to overthrow the Iraqi government and depose of Saddam Hussein by force, the Bush administration is violating international law and the UN Charter.

Until the Kosovo precedent of "humanitarian international military intervention" within a sovereign state to protect the basic human rights of minorities (but not to overthrow its government), specialists in international law knew only two exceptions to this comprehensive prohibition of state-sponsored violence: The first exception is every state's natural right to self-defense (Article 51 of the charter). The second exception concerns the collective coercive measures of the UN according to articles 42 and 53 of the charter. Accordingly, the UN Security Council can allow certain member states or regional alliances to use force. This was the reason that the United States and British governments were anxious to obtain some majority support from the fifteen-member Security Council. Without such a seal of approval, a U.S. invasion of Iraq would appear to the rest of the world as being an illegal and illegitimate act of aggression. Under international law, no single individual country can legally use force against another, outside of these narrow situations, without provoking ipso facto a return to international anarchy.

Why does the U.S. government seem determined to undermine the international legal system, with its preemptive war against Iraq, even when the UN doesn't back the United States up? That is a question that will need to be answered in the years ahead. For the United States, the stakes are high. There is no other country in the world that benefits more from the system of international law. U.S. economic and financial interests are substantial and worldwide. The last thing the United States needs is a regression of international relations toward anarchy and the rule of brute force.

It is a terrible mistake for the Bush administration to be so shortsighted as to believe that the United States will be able to prosper in a world devoid of international legal order, relying solely on its military might to defend its legitimate interests. If the administration's planners follow the dangerous precedent that others before them have applied with disastrous results (for example, Adolf Hitler in Germany, Benito Mussolini in Italy, and Nikita Khrushchev in Russia), they will be launching the United States on a mine-filled journey it will sooner or later deeply regret. Other nations in the future, when they become powerful enough, will inevitably attempt to follow in the United States' footsteps and invoke their own precedent for unilateral military action against any sovereign nation they choose.

Where would the world be then? Back to the nineteenth century and possibly back to the middle of the seventeenth century, before the Treaty of Westphalia in 1648. The latter was signed after the end of the European Thirty Years (religious) War. It incorporated the basic principles of the sovereignty of nation states, internationally binding treaties between states, and nonintervention of one state into the internal affairs of other states. Indeed, the Treaty of Westphalia is crucial in the history of international political relations. This important treaty formed the basis for the modern international system of independent nation states. It marked the beginning of an international community of law between sovereign nations of equal legal standing, guaranteeing each other their independence. Two new regulations were proclaimed: the principle of sovereignty and the principle of equality among nations.