I wrote this in March 2003

On “Liberating” the Iraqis

May I raise a few international law points on the US war to “liberate” the Iraqis:

1. UN Security Council Resolution No. 1441 does not contemplate a “war of liberation”. The resolution speaks of “disarmament” (which was preempted and rendered moot and academic by the Bush/Blair doctrine of preemptive self-defense and unilateral strike). Bush and Blair have shifted their legal theory from disarmament to “regime change” (based on the relatively new international law doctrine of “humanitarian intervention” to “liberate” the Iraqis and set up a democratic form of government in the country).

2. The US/UK war on Iraq does not have the sanction of the UN Security Council. It is condemned by a huge majority of the members of the Council and of the UN General Assembly, as well by the international civil society and world religious leaders. The US/UK-led “coalition of the willing” consists only of 45 countries, including Pres. Gloria Macapagal-Arroyo’s government, out of the almost 200 countries of the world. The coalition members, many of which are small countries, like the Philippines, have been either coerced or bribed by the US and UK (making it the “coalition of the coerced and the bribed”).

3. It appears that the US and UK will follow the 1998 “Kosovo model”. When NATO attacked Yugoslavia, it had invoked “humanitarian intervention”. It did not have the prior sanction of the UN Security Council. Later it asked the Council to administer Kosovo, which the Council subsequently granted, thus, “legitimizing” the initially illegal attack.

In the present case of Iraq, the US and UK have asked the Council to urgently “intervene” in Iraq, for humanitarian reasons, and to administer the revival of its “Oil for Food Program” and other humanitarian efforts in Iraq. Very soon, once “regime change” has been effected in Iraq, the US and UK, following the Kosovo model, will ask the Council to pass a resolution creating a UN-led military and administrative force to temporarily govern Iraq until a new permanent government shall have been established in that country (a la “East Timor model”), thus, legitimizing the initially illegal US/UK war on Iraq.

France, Russia and China (the remaining permanent UN SC members) will most probably accede to this because they would not want to be left out during the reconstruction stage of Iraq, especially with respect to the management of huge oil reserves of Iraq (which is the second biggest oil-producing country in the world). These three permanent members would not want the US and UK alone to monopolize the multi-billion reconstruction contracts in post-Saddam Iraq.

In the end, the world political and economic oligopoly composed of the five permanent members (and their rich allies, e.g., Germany, Japan, South Korea, Italy, Spain) will arrive at a “political compromise” for the sake of the huge profits that they will all reap from the economic reconstruction of Iraq. Iraqi oil will pay for such a reconstruction.

This “legitimization process” is crucial to Bush and Blair, as a matter of legal strategy, to avoid future legal claims and suits against them, their governments and their military and political officials for violation of the UN Charter and other applicable norms of international humanitarian law (e.g., Geneva Conventions), international human rights law (e.g., 1966 International Covenant of Civil and Political Rights), and the fundamental international law principles of sovereignty, independence, territorial integrity, non-interference in domestic affairs, right of peoples to self-determination, pacific settlement of world peace and security issues, anti-hegemonism and anti neo-colonialism, and the like.

Bush and Blair are creating a new international law norm, i.e., the “coalition of the willing model” (akin to the “Kosovo model”), a risky variant of the evolving “humanitarian intervention” doctrine.

4. The UN Security Council is in a quagmire and standoff. It cannot now pass a resolution calling the US and UK military forces to withdraw from Iraq or impose military, political and economic sanctions against the US and UK for their illegitimate war against Iraq because the US and the UK will surely veto such a resolution being permanent members of the Council under the 1945 UN Charter. Besides, the US is now the only remaining superpower in the world since the end of the Cold War with the defunct Soviet Union in 1990. The US/UK war on Iraq has “wounded“ the United Nations (which Bush has arrogantly called a “debating club”) as a world institution and as a stable positivist source of contemporary norms of international law.

The dangerous US/UK “coalition of the willing model” may, in the near future, give rise to a massive call for fundamental constitutional reforms of the UN Charter from the silent majority of the UN members so as to remove the discriminatory and elitist provision granting veto power to the five permanent members (the 1945 Allied Powers) and to transfer to the UN General Assembly the sole authority to resolve serious issues of world peace and security, it being the truly representative voice of the peoples of the whole world.

Atty. Manuel J. Laserna Jr.

Professor of Law

Far Eastern University

Manila