(From The American Society of International Law’s 98th Annual Meeting, Mapping New Boundaries: Shifting Norms in International Law. March 31-April 3, 2004)

The timing of this panel, a year after the initiation of the Iraq War, is not too soon to assess, if tentatively, the impact of this globally controversial war upon international law. My assessment is organized around five questions that deserve responses at this point:

–Should the Iraq War be treated as a defining moment for international law?

–Should the refusal to endorse the Iraq War be regarded as a triumphant moment for the United Nations, especially the Security Council?

–Can the Iraq War be interpreted as an illegal, but legitimate war of choice?

–Should the legal norm of nonintervention in the internal affairs of sovereign states be abandoned?

–Does the Iraq War provide an occasion for incorporating new norms of international law governing the use of force?

My response to each of these questions is a resounding ‘no,’ and the remainder of this brief presentation will give the essential reasoning behind the answer.

I. Should the Iraq War be treated as a defining moment for international law? No.

There is some temptation to contend that the Iraq War was a defining moment for international law and for the authority of the United Nations. It could be argued, of course, that the Iraq War vindicates non-defensive wars of choice, and that UN opposition has made, as President Bush warned in his speech to the General Assembly of September 12, 2002, the organization “irrelevant.” But such a temptation is easily resisted.

Recourse to war against Iraq in March 2003 on the facts and allegations that existed at the time is regarded around the world as so flagrantly at odds with international law and the UN Charter as generally understood to have little or no weight as a legal precedent. It is better understood as a prominent instance of a violation of the core obligation of the UN Charter, as embodied in Article 2(4), and as such qualifies as a potential Crime Against Peace in the Nuremberg sense. It provides an occasion to reaffirm the fundamentally sound idea embodied in international law that force can only legally be used under conditions of palpable defensive necessity (or possibly on the basis of an explicit mandate from the Security Council). Note that defensive necessity is broader than “self-defense,” and does take realistic account of the post-9/11 world that could validate preemptive uses of force against under exceptional conditions of demonstrated threat. The Afghanistan War might qualify under such legal reasoning as a valid claim of defensive necessity. It is worth noting that several of the staunchest supporters of the Iraq War as a matter of strategic and moral necessity, such as the British Prime Minister, Tony Blair, and the influential American neoconservative, Richard Perle, have acknowledged that respect for international law was unwarranted to the extent that it would have precluded the Iraq War. In effect, the most articulate advocates of the Iraq War concede, either implicitly or explicitly, either its “illegality” or that if “regime change” of this sort was precluded then it was “bad law.” It is notable in this regard that the Bush administration made only the most minimal effort to provide a legal rationale for the Iraq War, and based its public justifications on a confusing mixture of security and humanitarian rationales. And as for the irrelevance of the UN, the difficulties of the occupation have led increasingly even the Bush administration to seek UN help in bringing stability to Iraq.

Shifting ground, I would argue that if the Iraq War would have turned out to be successful as a political project, it might well have been a defining moment for American foreign policy and the character of world order. It could become a precedent for American unilateralism within the context of recourse to war and for regime-changing interventions. If this pattern were to be established it would have produced what might be called a geopolitical norm, that is, a use of power in a predictable pattern to achieve specified goals. The main feature of such a norm would be a repudiation of the authority of international law and the UN Charter by state practice that violates a consensus that joins the views of the majority of states and world public opinion.

At present, the U.S. Government seems to be claiming the role of being the legislative agency for the creation of geopolitical norms, reinforced by ad hoc coalitions of the willing, in at least two areas impinging on the legal norms governing the use of force: (1) intervention in sovereign states to achieve regime change; (2) selective coercive pressure to promote counter-proliferation goals beyond the mandate of the non-proliferation treaty regime. To the extent that these geopolitical norms are acted upon it represents a fundamental shift from world order based on the principles of territorial sovereignty to a world order based on hegemonic edict. Such a world is best denominated as an imperial world order, and would likely be challenged by statist and non-statist forms of armed resistance.

II. Should the refusal to endorse the Iraq War by the United Nations, especially the Security Council, be viewed as a triumphant moment? No.

Many opponents of the Iraq War have praised the UNSC for remaining steadfast in the face of formidable U.S. pressure to provide a formal mandate for the initiation of a regime-changing war against Iraq. I agree that the Security Council deserves some credit for this result, but I would argue that it did only about 25% of the job entrusted to it by the UN Charter. If the American-led claims against Iraq were evaluated from the perspective of international law or by reference to the war prevention goals of the Charter, then the UN performance was still 75% or so deficient.

There are several dimensions of this deficiency: (1) The UN imposed on Iraq a punitive peace via SC Res. 687 (3 April 1991) comparable in the setting of the Gulf War to the discredited Versailles approach to Germany after World War I; (2) The UN lent its authority to twelve plus years of punitive sanctions against Iraq (1991-2001) despite evidence of indiscriminate, severe harm to the Iraqi civilian population; (3) The UN did not censure the United States or the United Kingdom for repeated threats and uses of force that intruded upon the sovereign rights of Iraq in this same period; (4) SC Res. 1441 (8 Nov 2002) adopted the main premises of the American geopolitical norms relating to counter-proliferation and regime change, seemingly suggesting that if Washington had been more patient the endorsement of recourse to war would likely have been forthcoming.

In the background of the UN role with respect to the Iraq War are some important issues of an admittedly hypothetical character. Suppose that the UNSC had authorized the Iraq War, would that make it ‘legal’? Is the UN legally entitled to endorse what would be otherwise considered to be a war of aggression without such an endorsement? Who is authorized to make such a determination if there is no judicial review of Security Council decisions, as seems to be the implication of the World Court judgment in Lockerbie? It seems reasonable that only the General Assembly has some sort of residual responsibility to assess whether the Security Council has acted beyond the constitutional limits imposed by the UN Charter, but it lacks the power of decision, and its judgment would be only an expression of opinion.

III. Can the Iraq War be interpreted as an illegal, but legitimate war of choice? No.

In my view, as suggested, the illegality of recourse to war against Iraq in 2003 was clear. It was also clear before and after the war that there was no reasonable basis for invoking the “illegal, but legitimate” formula developed by the Independent International Commission for Kosovo to deal with an exceptional circumstance of humanitarian emergency. With respect to Iraq, the worst humanitarian abuses were associated with the campaign against the Kurds in the late 1980s, and against the Kurds and Shi’ia in southern Iraq immediately following the Gulf War in 1991. Perhaps, a case for humanitarian intervention could have been credibly made in these earlier settings. But the Kosovo exception was bases on the imminence of danger associated with the feared ethnic cleansing of the Albanian population, made credible by Serb behavior in Bosnia just a few years earlier and by the rising tide of atrocities in Kosovo in the months preceding recourse to war under the NATO umbrella, but without a Security Council mandate.

Given the failure to find weapons of mass destruction of any variety in Iraq and considering the intense resistance to the occupation, there is also no way to maintain convincing that either a condition of defensive necessity or humanitarian emergency existed in Iraq as of 2003. If there was such an emergency it was not attributable to the Baghdad regime, however dictatorial its record, but as a result of UN sanctions and numerous uses of force against Iraq.

IV. Should the legal norm of nonintervention in internal affairs of sovereign states be abandoned? No.

The Iraq War along with other experience with interventionary diplomacy suggests that respect for the norm of nonintervention, along with accompanying respect for territorial sovereignty, continues to represent a prudent guideline for statecraft. If the US Government had adhered to such a guideline over the course of the last several decades it would have avoided its two worst foreign policy disasters: The Vietnam War and the Iraq War. Additionally, if it had refrained from regime-changing covert interventions in Iran (1953) and Guatemala (1954), it might have avoided the Iranian Revolution and the years of atrocity and brutality in Guatemala.

The Iraq War confirms the wisdom of avoiding interventionary diplomacy unless genuine conditions of defensive necessity or humanitarian emergency exist, and even then caution is appropriate. As the Iraqi resistance confirms, interventionary wars are primarily ‘political’ phenomena, not ‘military,’ and are decided by the play of nationalist, ethnic, and religious passions. It is best to await the dynamics of self-determination to achieve transformative changes in dictatorial states. The experience with Eastern Europe, the Soviet Union, and South Africa is both instructive and encouraging.

IV. Does the Iraq War suggest the need for adapting international law to the new conditions of international conflict in the aftermath of 9/11? No.

From the argument made above, the simple conclusion here is that the Iraq War is an occasion for reaffirming the continuing viability and validity of the legal prohibition on non-defensive uses of force that is contained in the Charter. At the same time, the grave threats posed by the sort of mega-terrorist attacks of 9/11 do justify stretching the right of self-defense to validate uses of force, as necessary, to remove threats associated with non-state actors in the event that the territorial government is unable or unwilling to address the situation decisively and with due urgency. The Afghanistan War, with qualifications, arguably fits within such an expanded conception of self-defense.