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It is a justifiable conclusion that the first invasion of Iraq in 1990/91 as authorized by the UN security council was seminal legal, the political undertones notwithstanding. The invasion of Iraq in 2003, despite UN opposition can only hunger for such a definite conclusion. As the war strides on and the United Nations looks on seemingly unable to meet the nature of security challenges in the aftermath of invasion, key issues of facts, concepts and jurisprudence have arisen. This paper offers a concise exposition on positions of interpretation of the UN charter and UN Security Council Resolutions by the United Nations on one hand and the United States on the other, and their ramifications for Iraq and with extension, the role of UN in maintaining international peace and security.
The 21st century has opened novel chapters as regards the use of force by member states and the responsibility of the United Nations, particularly the Security Council, in maintaining international peace and security. Even before the formation of the United Nations, the use of force was prohibited as a means of acquisition of territory and diplomatic relations. In cases where it was accepted, its use had to be congruent to a set of treaties and legal statutes. By the beginning of the 21st century, a new reason for legitimizing the use of force against other states had risen(Conte 2005). Terrorism rose to become the modern springboard for the use of force against Iraq and Afghanistan regime.
To offer a valid argument on the nature of the role of the United Nations with relation to security, one only needs to survey the UN from a cooperative security standpoint. However, such an analysis can only yield reliable discourse if it is based on the three traditional United Nations functions that are related to security. First, the United Nations as an organization is representative of an avenue in which rules that pertain to security matters are made. As a global watchdog, the United Nations focuses on interregional and global security rules.
Second, the United Nations serves as an instrument for the management and resolution of conflicts within states or regions. Such activities may be categorized as either peace building or peace keeping operations, troop demobilizations, ceasefire monitoring, implementation of resolution agreements between conflicting parties and elections management. Third, the organization is a legitimizing agent for armed aggression, multilateral responses or any other issue that is deemed to be threatening to global peace and security(Nolan 1994).
After the 9/11 attacks it became clear that the United States intended to wage a preventive war against Saddam Hussein. Initially, the American public supported the need for a preemptive attack but international outrage of such a move was widespread. It is the British and French governments which pushed the Bush administration to present such complaints to the United Nations Security Council since Iraq had repeatedly violated UN sanctions. Both countries believed that should the US present such complaints to the Council, they would definitely get approval hence making the war legitimate in the eyes of the international community. The approval came to naught(O’Connor & Griffiths 2007). Thus, in essence, before the invasion of Iraq began, the United Nations had the responsibility of using its binding legal structures to either legitimize or illegitimize any use of force by member states against another member state based on set of international agreements that had been drafted, approved and unanimously ratified by these same member countries(Brown 2003).
Saddam’s invasion and occupation of Kuwait in 1990-1991 marked the beginning of the future application of international law in relation to future military conflicts. As the end of the Cold War drew on, America was pushed into a position of unparalleled global superiority. However, before the Cold War ended, the Truman Doctrine, the Nixon Doctrine, the Brezhnev doctrine, the Carter Doctrine and the Nixon Doctrine had began to shape America’s application of military force in contravention of certain facets of the international law.
When the United Nations was formed, it became an institution that envisaged what had remained of misguided or even impotent idealism of the past decades. Thereafter, all operations carried by the United States against other sovereign nations was at the basic driven by what was enshrined in the UN Charter as collective security. This was but a culmination of years and years of international debates on the legality of unilateral use of military interventions either individually or in conjunction with other nations against another nation.
The Iraq uniqueness of the Iraqi case became a case where the UN Security Council failed to authorize other nations to undertake military action against Iraq even after the United States and Britain consistently pushed for the need to militarily intervene in Iraq based on a set of understandings which they presented to the Security Council.
In essence, the failure of the United Nations to prevent the invasion and occupation of Iraq can be attributed to the tensions that exist between the terms collective security and collective self defense coupled to the undercurrents which may tilt the historical legal explanations of what can justifiably be referred to as a just war. While the United Nations was a winner in the Gulf war in which the American led coalition was legally authorized to liberate Kuwait from Saddam’s unjustified onslaught, the Iraq was is up to this day wreathed in legal controversies.
Resolution 1441 was cited by the Bush administration because it bolstered the US intentions of military action against Iraq. This resolution was reached at after intense diplomacy and even though the Bush administration would have preferred an automatic trigger for war against Iraq, the resolution fell short in meeting this demand. However, the US believed that even without the automatic trigger clause, they were still legally right in using military against Iraq. The Bush administration has preferred that the resolution explicitly state that UN member states had moral and legal authority to use all necessary means should Iraq fail to comply with the UN resolution demands. France, using its veto power prevented the passage of such a clause resulting in a second round of intense debates which ultimately created the second resolution.
This resolution reached after the second intense debates, was largely ambiguous as it failed to placate all parties. However, the same resolution recognized the continued threat Iraq posed to international peace and security. It further recalled Resolution 678 which authorized UN member states to employ all necessary means in implementing relevant subsequent resolutions. Why recalling this resolution, the UN Security Council explicitly stated that in agreement with Resolution 678, sanctions had been imposed on Iraq, an action that was also ion agreement with Chapter VII; UN Charter.
The same resolution also called on Saddam’s regime to fully cooperate with the UN Monitoring, Verification and Inspection Commission. In case Iraq failed to comply, the resolution explicitly states that Iraq would face serious consequences.
Thus, the resolution, acknowledged the presence of material breach but it does not state who was responsible for determining that a material breach existed. With the same strong wording the resolution authorized the use of force but only as a last resort. Based on the first ambiguity, the United States took it upon themselves to declare that Iraq was in material breach and as for the use of force, the Bush administration decided to use military force to eliminate the Iraqi regime. For further understanding, it is prudent that I offer a brief representation of the developments.
On February 5th, Colin Powell who was then the Secretary of State stood before a hushed UN Security Council chamber and presented Bush administration allegations against Iraq. Secretary of State Powell laid out a web of incriminating evidence against Iraq; evidence that would later progress to the invasion of the Middle East state. In essence, the case against Iraq could be categorized into two fronts. On the first front, Powell pushed for harsher penalties to be imposed on Iraq was a persistent material breach of its obligations. This case was buttressed by resolution 1441. This specific resolution was passed with the aim of disarming Iraq of its piles of weapons of mass destruction. On the basis of this resolution, which led to the creation of the United Nations inspection team, Powell declared that in principle Iraq had already been found guilty of possession of such weapons. Powell then asserted that even in the face of UN Resolution 1441, Iraq had failed to fully comply and cooperate with the demands of the inspection team(Taylor 2002; O’Connor & Griffiths 2007).
The second front of the case was based on Saddam’s purported connection to terrorist organizations and AlQueda in particular. Given that the outlaw regime could transfer ownership of weapons of mass destruction to such terrorist organizations, Iraq, under the leadership of Saddam Hussein, was a threat to the United States and with extension, a threat to global peace and security hence the need of the UN Security Council to respond militarily to the threat to its citizens and that of its allies(Taylor 2002).
There is another front which argues that the United States did not need the approval of the United Nations security structure because first; international law confirmed the right of the US to self defense in case of attack. According to the US preemptive attack was a much better solution that waiting for an attack within its territories. Second, the US do not need any authorization from the United Nations to use its armed forces. This authority is vested on the President who is the Commander in Chief of the Armed Forces and the Congress which authorizes financial support to armies and to declare war in the interest of the American citizenry. Third, given the nature of the existing resolutions, the US was permitted to act for the sake of its own security and that of the entire world. Lastly, by carrying out a preemptive attack, the US will be acting in the greater interest of the UN and the world at large in the pursuit of international peace and security.
For this analysis to be in context, it is prudent that we divulge a bit into the United Nations Charter and the arguments under which the use of force on Iraq was permissible. The UN Charter is a treaty that is enshrined into the United States supreme law. In the constitution as Article VI, Clause 2, it supersedes the states conflicting obligations that exist under any international agreement. Under the United Nations Charter, there exist only two circumstances which permits the use of force against another member state(Borroughs et al 2002).
The first, is enshrined under the principle of collective responsibility or alternatively individual self defense against an imminent or actual armed attack. In the second circumstance, armed response is only permitted under the direction of the Security Council which authorizes such use of force so as to maintain or restore global peace and security(Borroughs et al 2002 ; Lobel and Ratner 1999; Singh & MacDonald 2002). With regard to authorization under self defense, Article 51 of the Charter states that;
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense 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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security” (Borroughs et al 2002; UN).
This article specifically implied that the exercise of force is only valid as a self defense mechanism. While the United Nations maintained its literal interpretation of the statute as well as an anticipatory defense as being responsive to an imminent attack, the United States and its allies interpreted this Article otherwise. According to UN interpretation, the necessity for use of force could only be justified if there was no other choice or means through which a country could ensure the safety of its citizens and territory without militarily self defending its territories. When Iraq invaded and occupied Kuwait in 1990, the reality of an imminent attack was understood and the UN Security Council authorized the use of force and the United States proceeded to repel the prospect of Iraq overrunning Kuwait. That imminence was not there in the 2003 Iraq case and hence the illegality of the US led invasion.
On the other hand, the Bush administration in their quest for support of the war, brought in the concept of preemptive invasion as National Security Strategy to prevent Saddam regime from using the chemical, biological and nuclear weapons that the United States believed it possessed and intended to attack US and her allies with. On the basis that Saddam Hussein had the intention of waging war against the West, the US declared it legal to attack in order to defend itself.
The only other reason that supported the use of force was when the Security Council authorized individual or international use of war. This is stated as;
“Should the Security Council consider that measures [not involving the use of force] provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations”(Borroughs et al 2002; UN).
Under these statutes, the United Nations would have been able to authorize the use of force if the Security Council members voted for the use of force with respect to Iraq’s material breach of its obligations. The United States and the United Kingdom tried to push for the sanctioning of the use of force by the UN Security Council but failed because the international community failed to see the urgency of the military action nor the imminence of the threat to international peace and security posed by the Iraq regime.
Even though the possibility of using self defense as a reason to attack Iraq had been discussed and found as insufficient to warrant military action, Article 51 of the Charter allowed individual states and its allies to individually or collectively exploit the ‘self defense’ clause in cases an armed attack occurred what was used by the US to bring in the concept of preemptive self defense.
Five days later when the United States President George W. Bush spelled out his case for preemptive self defense under his National Security Strategy. In his speech, he did not mince words as to the position of the United States with regard to Iraq’s persistent violation of UN resolutions and possession of weapons of mass destruction. On the controversy of violent attack, Bush was specific in stating that since Saddam Hussein had connections to terrorist organizations, the imminence of attack was real as terrorists do not give countries any notice before striking. He also made it clear that if the United Nation Security Council fails to take immediate steps necessary in the maintenance of international peace and security, the United States and willing allies will go ahead and liberate Iraq from the dictatorial regime with the aim of not only securing the safety of US citizens but also that of the entire world.
On 20th March 2003, the United States became real. The invasion and subsequent occupation of Iraq had began(McWhinney 2004). The United Nations did not shy away from distancing itself from the US led invasion of Iraq. Kofi Annan explicitly declared that the United Nations Security Council did not sanction the invasion, neither was the invasion in agreement with the United Nations founding Charter (MacAskill & Borger 2004). In another interview he intimated that with regard to the issue of Iraq, there was need for the Charter to seriously address the question of invasion legitimized as a preventive action of future threats to global peace and security(UN News 2004).
The question of reforming the United Nations Charter has been in the offing ever since the formation of the Charter itself. In the face of the current crises, the need for wide ranging Security Council reform is not only urgent but a necessity. However, reforming the Charter has a myriad of political limitations. Amendment of the Charter is governed by Article 108 and Article 109(Conte 2005).
The impact of the war in Iraq levies greatly on the future role of the United Nations with regard to the principle of collective security(Rotblat 2005). When George W Bush proclaimed in his speech to the United Nation General Assembly that,” Will the UN serve the purpose of its founding, or will it be irrelevant?” two fronts of the future impact on the role of the United Nations began to emerge(Falk 2004). After the United States launched an offensive against the Saddam forces, the role of the United Nations with regard to collective security became irrelevant because it failed to endorse the invasion which the United States and the United Kingdom believed was appropriate on the basis of the incriminating evidence presented.
On the other hand, those who opposed the war against Saddam believed that the United Nations had succeeded in fulfilling the mandates upon which its foundation lay. This meant that the United Nations resolutions against the war were in agreement with the founding principles in which the organization was to do all that it could to prevent any recourse to war when such demands of war were irreconcilable with the United Nations Charter and the principles of international law(Klabbers 2002).
This difference in the analysis of the future role of the United Nations id not only factual but also jurisprudential or even conceptual. It can be analyzed on the factual basis with regard to the Bush and Blair’s allegations that Iraq posed a threat to global peace and security by harboring weapons of mass destruction or whether the United Nations inspection process exonerated the Saddam regime from claims of harboring weapons of mass destruction(Falk 2004; Rutherford 2004).
On the basis of jurisprudence, while the United States interpreted its home laws as justifying of protecting the security of the American public as well as the legality of a preemptive attack to prevent any future threat to global security, the United Nations declared the invasion illegal according to international law and the UN Charter all of which the United States has ratified and was therefore expected to abide by. Even more important was the muddling of the United Nations with a war which was largely understood as depictive of a new ear in which the United States had decided to advance its foreign policy strategies through the use of force(Peterson & Pollack 2007).
Even though the war in Iraq presents just a recent preoccupation with the US use of force, there are situations which were antecedent to this but did not particularly involve a blatant refusal of the United States to abide by the recommendations or rather the ruling of the United Nations with regard to the principle of collective security or the Statutes governing the legality of a country to self defense against a member state(Algar 1998).
Since the United States and the United Kingdom failed to seek either the moral or legal authority from the United Nations on issues of advancing their own understanding of global peace and security, the United Nations, though confident that it acted in the full exploitation of its powers and capabilities, risks becoming irrelevant in cases where the global powers decide and pass among themselves that it is within their national and their understanding of international law to pursue global peace and security on the basis of their own terms and only consult the United Nations such as in humanitarian issues and a myriad of other issues that may arise during the occupation period.
The event prior to and after the Iraq invasion tested the strength and enforceability of the United Nations Charter system much more fundamentally(Falk 2004). Even though the test was first stimulated by the September 11, 2001 terrorist attacks on the United States soil, the response with specificity to the invasion of Iraq changed the understanding of the Charter with regard to the employment of international force.
What then is the future of the United Nations with regard to security issues?Just a day following the September 11 attacks, the United Nations Security Council unanimously passed Resolution 1368 which condemned the terrorist acts and called for an international cooperation to punish the persons or organizations responsible for such heinous acts. The Resolution also affirmed that terrorist acts were a breach of global peace under Chapter VII. With this affirmation, the UN recognized “the inherent right of individual or collective self defense” with regard to terrorism(Crocker et al 2007;Osmańczyk & Mango 2003). Unfortunately, terrorism as spelled out by the resolution was open ended and subject to varying interpretations.
Later on September 28, 2001, the UN adopted Resolution 1373 which obliged all member states to work together in clamping down the financing and training as well as the movement of terrorists. Other measures included the suppression of the terrorist groups’ financing, blocking the recruitment of new members, freezing their assets and denying them the benefit of having a safe haven from which they could operate. Under the same resolution, the Counter Terrorism Committee was established and mandated to carry out the monitoring of states that acceded to the demands of the terrorists(Crocker et al 2007; Caldwell & Williams 2005). Thus, by leaving the interpretation of these resolutions open for a wide range of interpretations coupled to the inability of the Counter Terrorism Committee to police rogue states that may accede to the terrorists, a new front from which individual or collective self defense could be applied was opened. It is this gap that the United States and the United Kingdom exploited in presenting their claims to the United Nations Security Council.
The invasion of Iraq presented a fresh dilemma. Was the United Nations Charter and the Security Council strong enough to be effective enough to ensure that only legitimate wars was waged. For any reform to be successful in meeting the challenges that the UN faces now, the Secretariat will have to be strengthened but this can only happen when the political will of states is favorable for a strong Secretariat(Crocker et al 2007). The UN Charter also needs reform as it is only constituted by rich and powerful states that maintain a monopoly of Security Council Resolutions and their enforcement(Glen 2008).
In conclusion, this analysis can favorably surmise that since the United States was not attacked by Iraq, it did not possess the obvious legal right to self defense. The Bush administration tried unsuccessfully to win the Security Council Resolutions based on the preemptive right to defend the American citizenry and restore threatened international peace and security. When addressing the UN Security Council, President Bush specifically, called the Iraqi regime a grave and gathering danger that posed danger to world peace and security because of the possibility of the Iraqi regime passing on weapons of mass destruction to the terrorist organizations or using them in their own capacity to attack American and allies citizens and interests all around the world. From the UN Security Council and the UN Charter standpoint, preemptive application of collective security did not exist and thus illegal.
When Bush attacked Iraq, the Security Council did not authorize the invasion, even though the 15 member Security council had unanimously passed Resolution 1441. The United States specifically pointed out Resolution 1441 and Resolution 687 as supportive of the Iraqi invasion. As fresh challenges arise and the past challenges remain unresolved, only time will tell whether the United Nations lives up to its security obligations.