International Law and the US War on Iraq
by
Atty. Manuel J. Laserna Jr.
Both the US and Philippine constitutions contain an “incorporation clause” which provides that the generally accepted principles and norms of international law form part of the legal system of both countries (the “jus cogens” doctrine). Among such international law norms are sovereignty, independence, self-determination, non-interference, peaceful settlement of international conflicts, primacy of the UN Security Council in preserving and resolving international issues affecting world peace and security, anti-hegemonism, protection of civilian, environmental, religious and non-military areas, and respect for human rights of non-combatant civilians and refugees, and other legal principles enshrined in the UN Charter and UN international conventions.
Today world broadcast media reported that the US, UK and Spain have withdrawn from the UN Security Council their draft second resolution seeking an express authority to attack Iraq.
The US has asked the UN to withdraw the latter’s inspectors and humanitarian personnel from Iraq, including those who supervise the UN “Oil for Food Program” for the benefit of the Iraqi population. The US-led “coalition of the willing”, in a matter of hours, will start to bomb Iraq even without a UN Security Council resolution authorizing the use of force against that country.
It will mean the end of the work of the UNMOVIC and the IAEA and the UN humanitarian personnel in Iraq. The US and UK team has closed the “diplomatic window” and ignored the United Nations System. The 300,000 US and UK soldiers and the huge US and UK naval armada and missiles systems in the Persian Gulf are now ready to rock and roll, so to speak.
UN Secretary General Kofi Anan today described the US and UK-led war on Iraq a catastrophe (in war, everybody is a victim) that had made the UN Security Council members deeply frustrated and disappointed.
As far as the US and UK are concerned, the issue now is no longer disarmament but “regime change”, which would require belligerent occupation and full administration of Iraq, control of its oil resources and economy, overhaul of its political, judicial, administrative, and educational systems, and management of its international relations. Saddam Hussein is expected to ignore US and UK demand for him to go into exile.
The question that now arises is what role would the UN play in such a scenario, especially in the matter of the enforcement of the rules of international humanitarian law and international human rights law to protect the rights and interests of the innocent Iraqi civilians?
Recent US media reports show that the US government has asked US multinational corporations, most of whom compose the powerful US military-industrial complex, to submit commercial bids for post-war Iraqi economic rehabilitation contracts on the premise that the US will manage the fate and future of Iraq for sometime.
How France, Germany, and Russia, whose economic and political stakes in Iraq and the Middle East are strategic, would react to US control and administration of the huge Iraqi oil resources (Iraq is the second biggest oil country in the world), remains to be seen. This issue will evolve into a serious international flashpoint in the near future.
The US, UK and Spain argue that UN Resolution No. 1441 has granted them the power to attack Iraq (and change its political, economic, administrative, judicial and educational systems) in view of the alleged non-cooperation of Iraq with the UN inspectors. The huge majority of the UN Security Council, the UNMOVIC, the IAEA, the international civil society, and the great religious leaders of the world all disagree with them. The UN inspectors have asked for more time to complete their mandate.
The US, UK and Spain have conspired to bypass the UN Security Council and preempt the work of the UNMOVIC and the IAEA. The opinion of a majority of international law experts, including former UN High Commissioner for Human Rights, former Irish President Mary Robinson, is that the US, UK and Spain, by their aggressive and preemptive actions, are now in breach of international law and the UN Charter and may expect international legal claims to be filed against them in the future by victims of their pro-war behavior and unjust and illegitimate war (the Bush doctrine of “preemptive self-defense”).
As Prof. H. Meyer, author of "The World Court in Action: Judging Among the Nations,"(2002) and "The Amendment [14th] that Refused to Die" (Third ed. 2001), both of which were nominated for the Pulitzer Prize, has written:
“The Security Council of the United Nations was established by its Charter. We agreed with our fellow member nations that the Council should have sole power to decide whether peace is threatened. The Council has the exclusive authority to determine whether there has been an act of aggression, and what to do about it. The Charter forbids the use of force by one nation against another without the authorization that may be given only by the Security Council. There is one exception: should the necessity arise to use military power in self defense,-- and then only in case an "armed attack" has taken place…When an earlier President Bush decided that we should lead a coalition to repel aggression against Kuwait, he went to the Security Council to request authority to do so. He was then complying with the Charter of the United Nations. He went to the U.N. before he went to congress to ask its consent to send in our forces. The record of congressional debate shows that there was frequent reference to the Council's action to persuade doubters of the justness of the president's initiative…As the plans to attack Iraq began to develop and were disclosed in 2001, the present incumbent of the White House took the position that such plans needed neither congressional approval nor that of the United Nations...”
It is necessary to remind Pres. Gloria Macapagal-Arroyo and Foreign Affairs Secretary Blas Ople, whose foreign policy blindly apes the illegal Bush doctrines, that they have taken a solemn oath to uphold the Constitution and the rule of law, which include the constitutional “incorporation clause” that adopts into our domestic legal system the pro-peace international norms and principles of the UN Charter.
Atty. MANUEL J. LASERNA JR.
written in 2003
