International law and IR theories The invasion of Iraq, 2003

International law and IR theories

The invasion of Iraq, 2003

Topics for today Events of the day/week Legality of Iraq invasion, 2003

Sovereignty vs. collective security After Iraq: Is the United Nations/

international law relevant? An alternative to punishing states:

Individual responsibility for heinous crimes International Criminal Court

1/25/2008 Hans Peter Schmitz

Secretary General

Ban Ki-Moon, 64

From: South Korea Previously: Minster of Foreign Affairs and Trade Last Asian SG: U Thant, Burma, 1961-71


The invasion of Iraq, 2003

Was the 2003 invasion of Iraq legal under international law?

Answer: NO

Does it matter that the invasion was illegal under current international law? Realism: No. Law follows power. Institutionalism: Yes. It undermines democratic alliances and

cooperation among sovereign states. Idealism/Identity: Yes. It undermines the power of the United

Nations.


The Case against Iraq

Defiance of United Nations Security Council resolutions

Gross and systematic human rights violations


Options for Military Action

Incompatible with International Law

Unilateral military action Assassination Use of WMD Violence against Civilians

Compatible with International Law

UN-approved economic and military sanctions

UN-approved multilateral military action

Deterrence and containment

Bilateral and multilateral diplomacy


Iraq 2003

Under international law, Iraq’s sovereignty (like all other states’) is protected.

This protection of sovereignty is not absolute: Permissive rule: the right to self-defense (UN

Charter Art. 51 under Chapter VII, last article) Decisions by the UN Security Council claiming

a “threat to international peace and security” (Art. 39 under Chapter VII).


Chapter VII of the UN Charter

ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION

Article 39The Security Council shall determine the existence of any

threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.


Article 51 (Chapter VII)

“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-defense shall be immediately reported to the Security Council (……).”

Is Article 51 an exception to UN rule of cooperation or a “natural right” of states existing prior to the UN?


Is an (unilateral) attack justified?

How can states deal with new threats such as terrorism and weapons of mass destruction?

Two rules give room for interpretation and evolution of IL: necessity and proportionality


Necessity and Proportionality

Necessity: pre-emptive self-defense answers to an “imminent” and “overwhelming” attack.

Proportionality: The reaction has to be roughly proportional to the threat.


US and the UN Security Council

In 2002, President Bush sought to get approval from the UNSC to invade Iraq.

After failing to get direct approval, the US and the UK took unilateral military action.


Resolution 1441 (Nov 8, 2002)

Acting under Chapter VII of the UN Charter:

1. Decides that Iraq has been and remains in material breach of its obligations……

2. Decides, (…), to afford Iraq a final opportunity to comply with its disarmament obligations (….); and accordingly decides to set up an enhanced inspections regime (…)

3. (gives Iraq 30 days to compile a list of all weapons)

4. (declares all omissions “further material breach”)

5. Decides that Iraq shall provide UNMOVIC and the IAEA immediate, unimpeded, unconditional, and unrestricted access (….)

(…..) 1/25/2008 Hans Peter Schmitz

The Split after 1441

US/UK: Resolution plus further material breach is sufficient to authorize military action by a group of states.

China/France/Russia: 1441 does not authorize military action.


Is pre-emptive self-defense acceptable?

Yes New threat of terrorism and advanced technology. Failed states. Stability and security are more important than the law.

No Opens the door to abusive behavior by ‘rogue states.’ US is not using pre-emption against North Korea and Iran. Threats

only strengthen the enemy (Iran so far..). There are no exceptions for super powers and IL works based on

reciprocity. If you want a rule, you have to play by it.


How relevant is the UN today?

The UN was formed after World War II. However, the current security threats (terrorism and civil wars) were not a major concern in the 1940s.

How should the UN be reformed to effectively respond to the challenges of the 21st century?

Realism: Further strengthen powerful states. Institutionalism: Strengthen reciprocity. Idealism: Strengthen UN autonomy and power, create a UN police

force.


What about international law?

International law and the UN: irrelevant when needed most?

Answer: Not necessarily.

Alternative forms of accountability

International Criminal Court: Individual responsibility for war crimes, crimes against humanity, and genocide.


Documents

International law and IR theories The invasion of Iraq, 2003