The History of International Law - Essay Example

?International Law Introduction The history of international law has not been so peaceful, at least for the last two decades. The period witnessed considerable variation from the norms, and the deviation came mostly from the US and its allies. The developments helped scholars and the international community understand the loopholes in international laws, and their superficiality in practice. In addition, the humanity witnessed the failure of UN Security Council, NATO, International Criminal Court, and many other conventions and organisations to control the use of economic and military power by the US and its allies in the name of ‘preventive war’, in stark contradiction with the meaning and ethos of all the measures taken by the international community after the World War II to save succeeding generations ‘from the scourge of war’. The most disputed and highly controversial examples are the Kosovo crisis, Afghanistan invasion, and the Iraq invasion. The Kosovo and Afghan Crisis The first incident that gave the idea of certain nations’ deviating from the international norms came during the Kosovo crisis. On the insistence of America, NATO undertook a bombing campaign against the Federal Republic of Yugoslavia (FRY). The action was undertaken for the claimed purpose of implementing the UN Security Council resolution but without the Security Council’s authorisation. It was claimed to be an attempt to stop human rights violations in Yugoslavia/Serbia. The unrest in Yugoslavia was the result of the Kosovars’ effort to gain independence. However, Serbia has strong emotional attachment with Kosovo as the place of the 14th century defeat by Turks. As a result, there arose reports of mass human rights violations in Kosovo as FRY president forced ethnic Albanians to leave Kosovo. Soon, there was a negotiation between FRY and Kosovo Liberation Army. However, the negotiation failed to reach a solution. As a result, the US forced the NATO to start air strike on FRY. Thus, the ‘Operation Allied Force’ by NATO started attack on FRY on 24 March, 1999. Up to this point everything seemed normal. However, the attack was begun without taking the matter to the United Nations Security Council as stipulated under Chapter VII of the UN Chapter (Charter of the United Nations). The strike continued for two and a half months. In the attack, as Charlesworth (2002) reports, 500 civilians were killed, including both Serbians and Kosovars; in addition, there were 6000 casualties. Later on, the attack ended with the agreement reached between FRY, Serbia, and NATO. Thus, the UN Interim Administrative Mission took charge of Kosovo (ibid). However, this aroused significant levels of controversy in the international sphere as there was blatant violation of the norms of the UN Security Council stipulation that any regional action only be undertaken with the permission and authorisation of the Security Council. However, this was not the only issue that arose along with the attack. Another question that came up was if it is justifiable to violate UN charter in pursuit of human rights. Also, if the violation is justified, the question arises as to what is the limit of force that can be used. Another considerable doubt casted on the sincerity of US and NATO was that if the intention of NATO was to reinstate human rights in Kosovo instantly, air strike from a height of 20,000 feet was the worst method to adopt as it naturally leads to less accuracy and more civilian deaths. In addition, the campaign could not replace President Milosevic, nor could it control the mass departure of Kosovars. Whatever the reasons of the attack may be, it helped unravel the weaknesses of international law and the institutions that are meant to impose them. One can see innumerous number of works on the Kosovo issue, and the opinions of scholars vary greatly. According to one class of thought, as cited by Charlesworth (2002), the incident calls for a principle of humanitarian intervention. This was the opinion expressed by US President Bill Clinton and British Prime Minister. According to them, the action was not a breach of the UN Chapter, but was consistent with the humanitarian impulses of the Charter (ibid). However, it becomes evident that following the UN Charter would have prevented a military aggression on FRY as it is evident that Russia would have used its veto power to prevent the same. In the words of Wedgwood (1999), the issue points towards the problems associated with the veto power of the permanent members of the Security Council. Anyway, this does not mean that all scholars share the same opinion. In the opinion of some, the movement had nothing to do with the UN Chapter and it presents a serious threat to global stability. In the opinion of scholars, this act resembles the previous centuries where the powerful used military force, and the weak ones sought refuge in alliances. Thus, it is alleged that the peace and security as developed through the international law has been seriously compromised. The opinion of many scholars is that though what NATO did was illegal, it is morally justifiable. For example, the International Commission on Kosovo opined that the NATO intervention breached international law as it was not authorized by UN Security Council, but it was a morally and politically legitimate action considering the serous levels of human rights violations in Kosovo (Charlesworth, 2002). Does International Law allow military intervention? Now, there is another class of thought that believes that such a military intervention even without the permission of UN Security Council is justifiable under international law. It is argued that all crimes against humanity, as provided in the Genocide Convention 1948 and the Geneva Convention 1949 provide ground for intervention, though it is not specifically mentioned if military measures could be used. Thus, it is argued that even without the UN Security Council authorisation, there is legitimacy in military intervention in Kosovo considering the human rights violations there. However, the intentions of NATO have been questioned by many scholars. One allegation found in Roberts (1999) is that the NATO states were reluctant to receive large number of refugees from Kosovo. Yet another contention is that the western states were unable to solve the problem of Millennium Bug in the computer program of their cruise missiles (ibid). So not using the missiles in 1999 meant losing them. Indeed, though there are other possible reasons, the main motive, undoubtedly, is humanity and credibility as is evident from the statement of UK Foreign Secretary Robin Cook in the House of Commons on 25th March 1999. It is pointed out that the consequences of inaction from the part of NATO would be far worse than the result of NATO action (ibid). In total, it becomes evident that the NATO military intervention in Kosovo opened the eyes of international community by proving the fact that the so called international laws seriously lack in many aspects, especially when it comes to humanitarian intervention. As it was opined by Tony Blair in Chicago on 22 April, 1999, the most urgent foreign policy issue the world presently faces is to identify the circumstances in which we should get involved in other people’s conflicts. Thus, the crisis made many people opine that the incident acted as a catalyst for the development of an internationally accepted and well-defined legal principle that would allow proper humanitarian interventions when there are gross human rights violations in any nation. However, history proves that the US and its allies are not ready to change their idea of developing a new world order that resembles the use of economic and military power, nor has NATO or the UN done anything to clarify the situation. Despite the allegations, America, with the help of its allies, is bombarding Afghanistan with bombs and missiles, and the international community on a daily basis hears news of innocent civilians being killed in the name of fighting terrorism and ‘preventive war’. The ‘preventive war’ ideology and international law The attacks were based on the notion of ‘preventive war’ as claimed by the US, and were supported by the ‘coalition of the willing’. A number of international conventions like NPT, ABM Treaty, CTBT, and the Kyoto Protocol have all been violated when these countries resorted to using military force instead of law and diplomacy. In fact, the UN Charter states, 'to save succeeding generations from the scourge of war, which twice in our time has brought untold sorrow to mankind’, all its member nations should avoid the use of threat or use of force against the territorial integrity or political independence of any state. In sharp contrast, the American administration produced its National Security Policy 2002 which calls for attack on a state for ‘preventive purposes’ (The National Security Strategy of the United States of America, September 2002, p. 15). Experts view this as a significant variation from the international conventions including the Kellogg-Briand Pact, Nuremberg Charter, UN Charter, and the real purpose of International Criminal Court. The invasion of Iraq too is very similar to the Kosovo crisis in the fact that in this case too, there was no authorisation by the UN Security Council. So, scholars are of the opinion that the nations that go to Iraq are belligerent occupants under resolution 1483 (2003) of UN Security Council, and hence, have the responsibility to pay compensation which include direct loss, damage, and injury to foreign governments, and nationals. In fact, countries like Great Britain, United States, and Australia are all included in the 60 nations that signed the Kellogg-Briand Pact in 1928 which states that the member nations should condemn recourse to war for the solution of international controversies. In addition, there is the Nuremberg Tribunal which considers war as an evil thing. It is pointed out that the consequences of war are not confined to the belligerent states alone, but affect the whole world. So, initiating a war is not simple crime but is evidently an international crime. The ability of International Criminal Court comes under scrutiny at this juncture. When all the international conventions unilaterally claim that a war without the permission of UN Security Council evidently comes under the purview of international crime, it is rather surprising that the International Criminal Court fails to act. In other words, the very purpose of the Court is defeated. In fact, Article 2 (3) of the UN Charter urges that all member nations should settle their international disputes through peaceful means. In addition, Article 2(4) points out that all member nations should refrain from threat or use of force in their international relations. Evidently, the proponents of ‘war for self-defense’ ideology find solace in the resolution 678 (1990) and 687 (1991) in their attempt to justify their use of military force. Admittedly, resolution 678 (1990) allows its members to use ‘all necessary means’ to ensure peace and security in Kuwait. In addition, through resolution 87 (1991), the UN Security Council decided to take ‘such steps as may be required’ for ensuring peace and security in the area unless Iraq takes necessary steps to ensure peace and security before 15 June 1999. Relying on this provision, White House Press Spokesperson Ari Fleischer on 14 March claimed that the UN Security Council Resolution 678 authorized the use of all necessary means to uphold UN Security Council Resolution 660 (cited in Currie 2003). However, it is very evident that in the resolution 687 (1991), it is the Security Council that decides to take action, not the member states. In other words, US and UK were not authorised by the UN to use force. In addition, it is very clear that US was, and still is, aware of the contradiction between their use of force and the UN conventions. This is the reason why they sought Security Council authorisation to use force in Iraq following the resolution 1441 (2002). Moreover, the resolution 1441 (2002) was intended to give Iraq a final chance to comply with the resolution, and it does not authorise any nation to use force on Iraq. At this point, it seems useful to see what international law holds for the other members of the ‘coalition of the wiling’ who assist US in Iraq invasion. In fact, the list of the nations in the ‘coalition’ is long with about 50 nations, starting from Afghanistan. Article 16 of the International Law Commission’s Article on State responsibility points out that the states which assist such invasions can be held internationally responsible for the damages caused by the invasion (Responsibility of States for Internationally wrongful acts, International Law Commission). Based on the 1483 (2003) UN Security Council resolution, states could send troops to Iraq, and states were free to work under the Authority (US and UK). However, the resolution also recognises the specific authorities, responsibilities, and obligations which are applicable under international law. It is specifically mentioned in the operative paragraph 5 of the resolution that Geneva Convention and Hague Regulations should be fully complied with (United Nations Security Council, Resolution 1483 (2003) 22 May 2003). Obligations following occupation The Hague Regulations rule that the occupying powers have the responsibility to ensure public order and safety. In addition, it is the responsibility of the occupying power to ensure that cultural property is protected from conflict and looting. However, the looting at the Baghdad Museum is in stark violation of the provision. Another important responsibility is to ensure food and medical supplies. Article 55 of the Fourth Geneva Convention points out that the occupying power has the duty to ensure food and medical supplies. In addition, Article 56 points out that proper medical and hospital facilities should be made available in the occupied country. However, it has been reported by Hajaj and Dhayi (2007) that many people in south and central Iraq are facing diseases like Cholera due to lack of access to water as a result of US-Britain invasion. Another important responsibility is regarding oil reserves in Iraq. Article 55 of the Hague Regulations point out that the occupying state must safeguard the public buildings, real estate, forests, and agricultural resources of the occupied nation. Though United States no more abides by the State of Rome, many other members of the ‘coalition’ are abide by the State of Rome, and hence, are liable under Article 25 of the Rome Statute for doing and assisting human rights violations. The impact of the military aggressions From the above discussion, it becomes very evident that the military aggressions that took place in violation of the international laws will have far reaching consequences. Indeed, it has totally changed the strategies adopted by governments throughout the world. The first point is that the world governments have become fully aware of the insecurity, and hence, all nations, including US allies and opponents started raising their military power in an effort to balance their power against that of the US. This situation is all the more true in the case of Russia and China. The second point is the death of multilateral cooperation in security affairs because all these efforts are viewed by the world as an effort to further the US agenda. Another point of consideration is the increased investment in military power by nations as countries think the anarchy in international law and consequent uncertainty will make them use their own military power at any time, and the UN or International Court of Justice are less likely to come for their rescue. Finally, there is the demise of human rights cooperation as a result of the incidents. The support from other countries for such efforts is purely based on the belief that such efforts are not used for advancing the unilateral interests of any nation. However, the American effort to further its own interests neglecting humanitarian values has made both its allies and opponents stop and think for a while, and then take steps in haste to ensure their own safety. Despite their best efforts, situation is not overwhelmingly in America’s favour. For example, there is a rising Anti-Americanism starting from Vietnam, Cuba, and finally the Arab world. It seems that the possibility of Arab nations getting united against the American assertion cannot be ruled out. For example, the 19 April summit of eight Arab and Muslim nations called for a quick end to the American activities in Iraq; indicating that the Arab world is getting more and more aware about the graveness of the situation. Utilizing the situation, Iran is developing better relations with Saudi Arabia, Turkey, Syria, and Pakistan. It seems that the Arab world is getting forced to forget the Shia-Sunni divide as they presently consider America as a more important issue to be dealt with. The changed international relations and politics Thus, in total, the situation is that US and its allies are in an effort to develop a new set of international laws. It is especially visible in the case of the US as it intentionally withdrew from many of the international treaties that ensured peace, at least in theory. First of all, it decided not to follow the Rome Statute of the International Criminal Court. In addition, the US withdrew from the Antiballistic Missile Treaty. The next issue is the non-ratification of the Comprehensive Test Ban Treaty with respect to chemical and biological weapons. Another significant variation of America from internationally held norms is seen in its decision not to ratify the Kyoto Protocol on Climate Change. This, it becomes more than evident that US is determined to base all its deviations from the international norms on ‘preventive war’ ideology. Yet another point visible through the incidents is the fact that America wants to set up a new group of nations, ‘the coalition of the willing’, and impose its own self-developed rules and regulations on other nations neglecting all international conventions that existed so far. It is rightly said by America in its National Security Strategy that the US is committed to lasting institutions like the United Nations, the WTO, the Organization of American States, and NATO. Then, it states that the ‘coalition of the willing’ can boost these permanent institutions. However, history has proved that instead of augmenting international peace and security, the coalition of the willing has played havoc with the lives of many people, in stark contradiction to the meaning and ethos of the UN Charter, Geneva Convention, and other international treaties. Conclusion Thus, in total, the international community is facing a critical situation. All world nations are provided with two choices; either they can continue their following and respecting international law, or they can follow the way developed by US and the ‘coalition of the willing’, and can rely on economic and military power, thus leading to the kind of anarchy the world faced before World War II. References Charter of the United Nations, viewed 2 June 2011 Charlesworth, H May 2002, “International Law: A Discipline of Crisis”,The International Law Review, Volume 65, No. 3, p. 378. Currie, D 22 May 2003, ‘Preventive War’ and International Law After Iraq, viewed 2 June 2011 Hajaj, C & Dhayi, B March 26, 2007, “Lack of safe water endangers the health of Baghdad’s most deprived children” unicef, viewed 2 June 2011 Roberts, A October 1999NATO’s ‘Humanitarian War’ over Kosovo, Survival, Volume 41, No. 3, viewed 2 June 2011 Responsibility of States for Internationally Wrongful Acts, International Law Commission, viewed 2 June 2011 “The National Security Strategy of the United States of America” September 2002, viewed 2 June 2011 Wedgwood, R October 1999, “NATO’s Campaign in Yugoslavia”, The American Journal of International Law, Volume 93, No. 4, pp. 828-834. Read More