Law in disorder
UN involvement in the Iraq campaign neither makes war less likely, nor more 'legitimate'.
At the United Nations summit in New York on 12 September 2002, secretary-general Kofi Annan said: ‘When states decide to use force to deal with broader threats to international peace and security, there is no substitute for the unique legitimacy provided by the UN.’
Many international commentators have welcomed the closer involvement of the UN Security Council in the Iraq crisis and Baghdad’s acceptance of UN weapon inspectors. Critics of America’s policy on Iraq see the UN’s involvement as a positive step away from war.
They argue that UN engagement creates a ‘breathing space’ for a negotiated solution, and that the UN’s influence will ensure that US unilateralism is constrained by international law, as only the UN Security Council can sanction military aggression.
But both these claims are wrong: UN involvement neither makes war less likely nor does it make an attack on Iraq any more ‘legitimate’.
Far from providing a breathing space, the preparations for any regime of weapons inspections guarantee months of high-profile wrangling over alleged Iraqi obstruction, while the USA continues to assemble its military forces.
According to military analysts, even without a breathing space an extensive assault on Iraq would not be feasible until later in the year – and possibly not until spring 2003. It seems unlikely that the Iraqi government will be able to buy breathing space beyond this point, whatever steps it takes. After all, the White House has already declared that the acceptance of weapons inspectors is not the issue and that Baghdad’s offer is ‘too little too late’.
More importantly, UN engagement encourages war because it is seen to give military action international legitimacy. Opinion polls in the USA and Britain seem to suggest that public support for military action is increasing, with many arguing that the prospect of UN support will build further public backing for a military campaign. The UN’s involvement makes it easier for governments to commit to military action, encouraging the likelihood that there will be war rather than a negotiated solution. It also enables the USA to put more pressure on governments that are currently reluctant to support US action.
Although the UN was established in 1945 to ‘prevent the scourge of war’, its role today seems to be to legitimise war – reflecting how the relationship between the UN and military conflict has been transformed since the end of the Cold War.
The fragile framework of international law, institutionalised in the UN Charter, was based on the formal sovereign equality of member states, and was supposed to serve as a barrier to external intervention and military aggression. Great Power intervention had little international legitimacy in the post-colonial era – where, at least in the field of international law, if not in practice, many argued that states should have equal legal and political rights regardless of economic wealth, military power or constitutional make-up. Of course wars still took place, but most often without the formal sanction of the UN Security Council.
Recent external aggression against state sovereignty has also taken place without the support of the UN. The US-led aggression against Yugoslavia over Kosovo in 1999 was not supported by an international consensus and did not have the prior endorsement of the Security Council. The Afghan war in 2001 also bypassed the restrictions of the Security Council. If, as seems likely, the UN endorses a war on Iraq, it will not be a victory for international law over US unilateralism, but an open recognition that the basis of international law no longer exists.
International law that failed to recognise equality of rights for states could no longer be regarded as ‘law’. Rather than being analogous to the system of modern domestic law, international law would resemble a pre-modern or feudal system of private law, institutionalising privileges for a powerful few while denying rights to the many.
With the end of bi-polarity the USA is much more capable of perverting the supposed legitimacy of the UN for its own purposes. During the Cold War period the USA widely used its veto powers to prevent UN censure; today the balance of power has shifted even further towards America. This is reflected in the Security Council itself. Why would a war that was widely seen to be illegitimate outside the USA and Britain be more legitimate if America bought or coerced the support of Russia and other, non-permanent, Security Council members?
The USA’s power and influence may secure it votes in the Security Council – but this is a far cry from building an international consensus that could bestow the UN’s ‘unique legitimacy’ on military action. The lack of an international consensus was highlighted in President Bush’s speech to the UN session in New York when he declared that this was the UN’s ‘defining moment’, and that failure to act in accordance with US wishes would make the UN ‘irrelevant’.
According to the Washington hawks, the UN risks becoming irrelevant precisely because it reflects the lack of international political will in favour of US policy. This lack of consensus has led the USA to declare its right to act unilaterally.
If the UN gives legitimacy to a US war against Iraq this will not strengthen international law against US unilateralism. Rather than modern law, this would be the law of ‘might makes right’, with military and political power increasingly indistinguishable in the international sphere.
Bush is right to say that Iraq could be the UN’s defining moment – as he is holding a gun not just to Iraq’s head, but also to the ‘unique legitimacy’ of the UN and the system of international law.
David Chandler is senior lecturer in international relations at the Centre for the Study of Democracy, University of Westminster. He is the author of:
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