Openion
Iraq
: War Without Sanction, Legality
The devastating
consequences of Iraq war for innumerable innocent men, women,
children, the aged and the infirm; the destruction of national
economy and the consequences of the resultant perennial
conflict between civilizations have not deterred the United
States and its allies in a now truncated "coalition
against terror" to wage a second Gulf War. Compulsions
of domestic politics and a conscious strategy to expand
American influence across the globe as articulated in the
National Security Strategy document in the aftermath of
September 11, prevailed over saner counsel that cautioned
against the US invasion of Iraq.
The UN Security Council’s
refusal to legitimize war without exhausting the scope of
UN inspections proclaims an unfortunate failure of the world
community to tame raw power to the discipline of international
law and public opinion. Recourse to Resolutions 1441, 687
and 678 is not available to US and its allies to cure the
patent illegality of the armed course and their life stands
extinguished with the specific context which originally
led to their passing. If it were genuinely believed otherwise,
the movers of the second draft resolution would not have
laboured to have it approved by the Security Council. The
absence of a clear, proximate and an established connection
of the Iraqi regime with September 11 robs the US of a justification
for an attack on Iraq. Apprehensions of a direct Iraqi threat
to the security of the United States and its allies, even
if entertained bonafide remain in the realm of conjecture
and cannot reasonably afford sufficient cause for the invasion
of Iraq. Nor can the imminent capitulation of Iraq against
the might of the US led coalition lend ex-post facto
legitimacy to this war.
Questions of profound importance
arise for consideration. First and foremost, does the conflict
signal an end of diplomacy in preventing future wars? Is
the Iraq war a reversal of the progress of civilization
as "a movement from force to diplomacy and from diplomacy
to law"? Does the war represent a proportionate response
to September 11 or is it a part of strategy that goes far
beyond the pursuit of Al Quaeda? Will the invasion of Iraq
isolate the US and its allies from the rest of the international
community thereby undermining their authority to lead a
larger and sustained coalition against terror? Can international
peace be a dividend of power exercised in disregard of the
sensitivities of a vast majority of the international community?
The question of proportionality
of the use of force will continue to be debated given the
experience and extent of destruction in Afghanistan. Differential
treatment by the US of the rogue nuclear states of Pakistan
and North Korea are legitimate objections that seriously
impair the moral and political authority of the US in a
decisive assault against terrorism. Indeed, one of the grave
consequences for stability of international polity is the
predicted decline of American influence as leader of the
free world and a reliable trustee of global power. This
would eventually weaken the common cause against terrorism
and anarchy.
The American doctrine
of pre-emptive intervention and regime change challenge
the fundamental assumptions and principles of international
law premised on a healthy respect for autonomy of nation
states. Also in issue is the legitimacy of the United
State’s claim to police the world and to umpire the global
political morality, particularly when it is seen to be doing
so primarily from the prism of its own subjective evaluation
of priorities. Apprehensions about the legality of exercise
of power by the US in aid of its global objectives are accentuated
by the underlying argument in the two Pentagon Reports formulated
during the Presidency of Bush Sr, echoes of which reverberate
in the National Security Strategy document which seek to
justify a proactive intervention by the United States in
the internal policies of other nations contrary to the spirit
of the UN Charter.
In this scenario whether
or not the world will regress into a state where power owes
no apology to legal fetters upon its exercise will depend
upon a collective, principles and sustained opposition to
the use of force contrary to the settled principled of international
law. While peace is a dividend of power, we also know that
any exercise of power to denude a nation of its pride and
people of their dignity can only yield conflict. Terror
grows out of humiliation and fear. It cannot be eliminated
on an enduring basis by inflicting a humiliation on the
vanquished a consistent reminder of history.
This time of crisis
is also one of opportunity. The world community must continue
to assert the force of international public morality and
a sense of shared sensitivity against war in a manner that
does not dilute our resolve against terrorism. We need
to constantly affirm the validity and relevance of the UN
and to strengthen institutional structures for establishing
and sustaining an environment of peaceful co-existence between
nations.
Historians of the Iraq war
having the benefit of unhurried reflection at a later date
will doubtless acknowledge with admiration the role of those
who willingly paid the price for their conviction and chose
to stand firm on the side of law to resist the tide of war.
In particular Robin Cook, the 122 MPs in the United Kingdom,
Senators and public men in the US who voiced their conscientious
dissent and indeed millions around the world who cautioned
against war without explicit UN sanction must be our heroes.
A united resolve against
terror ensured through diplomacy and honest adherence to
the principles of the United Nations charter must be the
route to this unity. We would thereby have defended the
existence and relevance of international law in support
of an orderly global society. We would also have established
the justification for exercise of military power in the
recesses of international public opinion. The march of civilization
from force to diplomacy and from diplomacy to law would
thus be ensured.
India, whose foreign policy
recognizes peaceful coexistence of nations and non-intervention
among nations interse as its central pillars, must continue
to insist on a moral and legal basis for the use of force
within the framework of the UN Charter so that international
harmony can be secured on an enduring basis.
( Mr. Ashwani Kumar is a Rajya Sabha
MP from Punjab and is a former Additional Solicitor General
of India. He is a student of International Law. The views
expressed herein are his own.)
