UN "credibility" at stake.... (International law types...)

[MichaeltheGreat]

I don't think this aspect of the whole Iraq fiasco has been posted about here.

Over the past few weeks, we've had various people from Bush on down, plus the occasional news pundit, etc., talk about the UN losing "credibility," "relevance," etc., and about our allies and/or the UN showing "backbone" blah blah blah.

In this context, credibility, relevance and backbone all mean supporting the US policy goal of using force or the threat of force to cause regime change in Iraq.

Without getting into the effectiveness (or David Floydian views ) of UN sanctioned military actions, AFAIK, this would be the first and only time in the history of the UN that it would, if it followed the US lead, authorize an offensive invasion and conquest (albeit for imposition of regime change, not territorial annexation) of another country - for any reason.

The Korean conflict was in response to the DPRK invasion of the Republic of Korea, the Gulf War resolutions authorized force to expel Iraq from Kuwait and restore the recognized government of that country. The UN wasn't involved in Afghanistan, but the Taleban weren't a generally recognized government anyway. Various peacekeeping actions (no matter how conducted) were at the invitation of representatives of the host nation, or triggered by some other basis (genocide in Rwanda, humanitarian crisis and hijacking of international aid in Somalia), and none of them included indefinite occupation, or forced change of an internationally recognized government, no matter how despised or despotic.

So here's my first question of the day:

Is there anything in the UN Charter, or any other body of international law related to the UN, or to the agreements member nations make when joining the UN, which gives either the Security Council or the entire General Assembly any "legal" authority to authorize offensive invasion of a recognized state and force regime change, for any reason?

I know Iraq has defied a zillion UNSC resolutions, Hussein's a murdering thug, etc., so we don't need to regurgitate the reasons. What I want to know is what are the legal limits of the available remedies?

Obviously, the permanent members of the UNSC can never be subject to any UNSC resolution that really displeases them - there's that little bit about veto power. But does the UN really have the authority to authorize invasion of any state that doesn't have a permanent seat on the UNSC, if the UN decides to do so? Or does the UNSC and/or General Assembly have carte blanche authority to create international law on the fly, by authorizing whatever they want, if they get the votes?

I would be surprised if any of that was the case, which gets to my real question:

It seems that the only way for the UN to maintain "credibility" or show "backbone" would be to refuse to issue any resolution it had no legal authority to issue. Permasanctions might be the limit of the remedies for UNSC resolution defiance, as ridiculously ineffective as sanctions are. (Notice I haven't mentioned UN "relevance" since the intro paragraph. )

I wonder if part of the preemption strategy of the chickenhawks and Wolfowitz in particular, is to paint the UN into a corner, where it either demonstrates complete impotence (and thus gives a reason to ignore it altogether), or it violates it's own charter, authorizes actions of a type it has no legal authority to authorize, and thus destroys it's own credibility by demonstrating that it will do nothing but slowly and inefficiently kowtow to US policy demands?

Thoughts?

[monkspider]

You make excellent points MtG. My thoughts on the "credibility" issue is that hte UN will lose far more credibility if it ignores the wishes of the countries it is supposed to represent (the Iraqi war is a very unpopular war, worldwide) and it becomes a de facto puppet of a hyperpower.

[Japher]

hyperpower

I hate that word.

It should be super-doperpower or uberpower or megapower.

I think the UN already lost all credibilty, and the backbone left with the cold war.

[lord of the mark]

The UN first issued resolutions wrt Iraq in response to the Iraqi invasion of Kuwait. Clearly the UNSC had the right to do that under the charter. At the same time the UNSC determined that Iraqi WMD constituted a threat to peace, and that Iraq needed to disarm, as well as leave Kuwait.

The US signed a ceasefire with Iraq conditional on disarmament - this was ratified by the UNSC in a series of resolutions, under the UN's role in ending the war begun by Iraqi aggression.

All subsequent resolutions on Iraqi disarmament relate to enforcing those original resolutions.

If the UNSC is to determine they have no right to do this, they should repeal the entire string of resolutions relating to Iraqi disarmament going back to 1991. Most especially they should repeal UNSC 1441, which specifically promised "serious consequences" if Iraq failed to comply. To my knowledge neither France, nor Germany, nor Russia has moved to repeal UNSC 1441. Nor have they challenged Mr. Powell's statement that at the time everyone knew that "serious consequences" meant force.

If they share your interpretation, why did they vote for UNSC 1441? By passing that resolution they did put their credibility on the line. Adopting your interpretation, when things havent worked out as they hoped, will not save their credibility.

[MichaeltheGreat]

Using force to disarm Iraq could mean a lot of things - destruction of hardware, bombing of production facilities and bases, etc.

Termination of the cease fire and continued desctruction of any Iraqi forces in or headed to the defined boundaries of the KTO is one thing.

Conquest, occupation, and forced change of government is entirely another level of action.

I'm not interested in the "interpretation" of the US and UK. (I doubt the rest have that many principles about the subject, beyond the little bit of wordsmithing that softened up 1441.

I'm interested in any express authority under the charter for steps that radical. (Not that I object to regime change, I just don't think the UN has any such authority, or that the US is wise to commit so much force for so much time to impose it, given our current threat environment and level of forces)

[lord of the mark]

Originally posted by MichaeltheGreat
Using force to disarm Iraq could mean a lot of things - destruction of hardware, bombing of production facilities and bases, etc.

Using force to disarm Sadam can hardly mean bombing facilties, since key facilities and weapons stockpiles are hidden and or mobile. full disarmament by force in this casecan only mean a situation in which intervening forces can search anywhere, and can interview anyone they want, and in which Saddam no longer has the power to threaten anyone being interviewed. Such intervention necessarily equates to regime change. Again, I dont think anyone on the UNSC thought, when they passed 1441, that the use of force meant anything less.

[GePap]

The UN has the right to authorize actiosn against any member that fails to meet UN Security council demands. Force against both Iraq and the DPRK were authorized because both states failed to heed UNSC demands to withdraw from the territory they had invaded. For example, had Saddam Hussein left Kuwait Jan 1, 1991, before the whole offensive, persuant to all outstanding UNSCResolutions, then all this business about disarmement and such would nto exist, since the UN security council would have had no reason to demand anyting else of Iraq, once Iraq met its obligations.

Now, you are correct that, by giving certaint states Veto's, the system has been greatly weakened, which we migth say is a fundamental flaw in the system, since it allows the great powers to ignore the system (for example, the onyl reason the UN authorized action in South Korea was because the SU was out, protesting the fact that Kuomintang China, and not the new Mao regime, retained China's seat on the council). This reality fundamentally weakens the whole system, sicne as long as you have a veto patron, you can get away with murder (for example, why Kosovo was a NATO, and not UN act, because Serbia could count on Russia to block action in the council).

As for LoTM's poin about voting for 1441. This is also a place were the veto power comes into play. Becuase ceratin states can block all UN enforcement action, they are free to act without the system. France has gotten involved militarily many times in its ex-empire and the UN never did anything cause France never would let them. The UN, in fact, has had very little to do with most major wars since 1945. If Korea and the Gulf War stand out, it is because they are so rare. The UN had little to do with Vietnam, The Iran -Iraq war (since no rgeat power felt they wanted to intervene directly), the Falklands war, so forth and so on. If the UN has acted a lot in the ME is because multiple powers had interests involved: the US and SU kept forcing ceasefires on Israel because neither of them wanted Irsael to get too far..and cause a bigger mess for the great powers.

The US and UK could invade Iraq without any UN say..what reason it though up, irrelevant: the fact that it has a veto would mean the UN could never reprimand the US for any action it takes (except in the general Assembly, bu who cares about the GA) Now, since 1990, and the end of the Cold War, the UN has been given, by the international community a greater role, a role in never ahd in its first 40- years. The fact that the admin. was speakign about invading by itself back in August would have simply sort of brought the UN back to the 1960's. When the admin. was convinced to give tiself a patna of legitmacy by going through the UN, the other states jumped at the chance since they saw it as a way to bind the US to the UN. If 15 states voted for 1441, it because 13 of them saw it as a way to force the Us to play within the UN. If 7 states join the US and the UK by next weeks end, it will be for the same reason.

[lord of the mark]

Originally posted by MichaeltheGreat
Using force to disarm Iraq could mean a lot of things - destruction of hardware, bombing of production facilities and bases, etc.

Termination of the cease fire and continued desctruction of any Iraqi forces in or headed to the defined boundaries of the KTO is one thing.

You assume that occupation and regime change as a response to aggression are ruled out as part of the charters permission to respond to aggression, and that the UN can only sanction a return to the status quo ante bellum more or less. This seems difficult to accept, given that the UN charter wa written in the wake of world war 2, when the founding members of the UN used axis aggression to justify occupation and regime change - occupations in which the US, UK, France and Russia all participated.

(note - Godwins law cannot be invoked here - we are discussing the history of the UN charter, and reference to WW2 CANNOT be avoided)

[Imran Siddiqui]

The UN CAN use force if it decides to.

The UN Charter, Chapter VII:

Article 39:
The 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 41
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

So yes, there is legal authority for a regime change if that regime is decided to be a threat to the peace, and sanctions are inadequate.

[Agathon]

It looks like from this that the UN has the full right to use force against Britain and the US.

[lord of the mark]

Originally posted by GePap
hen the admin. was convinced to give tiself a patna of legitmacy by going through the UN, the other states jumped at the chance since they saw it as a way to bind the US to the UN. If 15 states voted for 1441, it because 13 of them saw it as a way to force the Us to play within the UN. If 7 states join the US and the UK by next weeks end, it will be for the same reason.

But when they voted for 1441, the implicit meeting of the minds was that the US would forego unilateral action and delay its actions, and even take a chance on being prevented from acting (in the event Saddam fully complied with 1441) in exchange for the assurance of UNSC sanction for war in the event that Saddam did not fully comply with 1441. Now the US sees members of the UNSC returning to debate fundamental strategy as if 1441 did not exist.

This is a bait and switch you can only pull once. The next time the US feels it has legal, moral and prudential justification to act unilaterally, and some say the US should act through the UN, the US will have every reason to expect that UNSC will behave in the same way they are behaving now, and will act accordingly.

I persoannly feel that the compromises and restraint required by multilateral action are worth the cost, delay and risk. That is why I very much hope that the UNSC does not pull a bait and switch, since this would result in a worse world, with the US less bound to the UN, and for no reason since the UN has both right and reason to authorize force in this case.

[PLATO]

MTG: The rights of soverign governments to self defense is guaranteed by UN Charter. The security council is authorized to orchastrate a common defense of member states.

Kuwait was invaded and the security council legally responded. This action did not conclude with a formal ending of hostilities, but rather with a cease fire agreement. The UN agreed to quit destroying Iraqs ability to attack and occupy Kuwait as long as Iraq fulfilled the terms of the agreement. Technically speaking, Iraqi non compliance is a renewed attack on a member state (Kuwait). This gives the Security council the legal authority to eliminate this attack upto and including regime change. The soverignty of Iraq must be maintained, but the threat will be renewed. This is at best a thin argument, but one that I believe would legitimize (from a legal standpoint) enforcing the resolutions in the manner the US proposes. In order for this legal avenue to be removed, Kuwait and Iraq would have to sign a formal peace treaty. This would end the security councils involvement on behalf of common defense of a member state and throw the whole question open again.

[Shi Huangdi]

"to authorize offensive invasion of a recognized state and force regime change, for any reason?"

Is it technically an offensive war though? You could consider it a defensive war, the UN set down certain terms of cease fire after Gulf War I, we could simply say that Iraq isn't honoring those terms thus voiding the cease fire, thus making this a part of Gulf War I which was a defensive war.

[PLATO]

Originally posted by Agathon
It looks like from this that the UN has the full right to use force against Britain and the US.

Absolutely true , but the US and UK would have to agree to it.

[GePap]

Originally posted by lord of the mark


But when they voted for 1441, the implicit meeting of the minds was that the US would forego unilateral action and delay its actions, and even take a chance on being prevented from acting (in the event Saddam fully complied with 1441) in exchange for the assurance of UNSC sanction for war in the event that Saddam did not fully comply with 1441. Now the US sees members of the UNSC returning to debate fundamental strategy as if 1441 did not exist.

This is a bait and switch you can only pull once. The next time the US feels it has legal, moral and prudential justification to act unilaterally, and some say the US should act through the UN, the US will have every reason to expect that UNSC will behave in the same way they are behaving now, and will act accordingly.

I persoannly feel that the compromises and restraint required by multilateral action are worth the cost, delay and risk. That is why I very much hope that the UNSC does not pull a bait and switch, since this would result in a worse world, with the US less bound to the UN, and for no reason since the UN has both right and reason to authorize force in this case.

Without Un security council approval, the US will never have "legal" justifications for anything unilateral: maybe moral and prudential, but never legal. The UN does not allow for posses's.

I personally think the vote on 1441 was a terrible mistake, for the reasons you stated. everyone postponned the fundamental debate until later (classic thing to do at the UN), while at the same time, making it even harder to solve. The legitimacy of the council comes from united action, or at elast approval from a clear majority without veto's. By all sattes going along with 1441 they simply muddied the waters: the memebers of the council siply disagree on whether Iraq trully posses a threat to the international community worthy of force.

The moral argument has no say in the UN right now, National sovereignty trump Human rights, so authorizing UN action intended for regime change unless everyone sees that regime as a real threat is a highly poisenous thing.

[Comrade Tribune]

Originally posted by MichaeltheGreat
So here's my first question of the day:

Is there anything in the UN Charter, or any other body of international law related to the UN, or to the agreements member nations make when joining the UN, which gives either the Security Council or the entire General Assembly any "legal" authority to authorize offensive invasion of a recognized state and force regime change, for any reason?

No.

Thank you for asking.

[Ned]

Originally posted by Agathon
It looks like from this that the UN has the full right to use force against Britain and the US.

Not the UN: the Security Council.

But, the UK and the US have a veto that cannot be overriden.

So, practically, the SC cannot authorize any action against a permanent member.

[lord of the mark]

Originally posted by GePap


Without Un security council approval, the US will never have "legal" justifications for anything unilateral: maybe moral and prudential, but never legal. The UN does not allow for posses's.

If we were enforcing a UNSC resolution out of nowhere you would be correct. That is not the case wrt to Iraq.

in 1990 Iraq invaded Kuwait. Kuwait had the right to defend itself, a right that pre-existed the UN charter. It had the right to call on other nations (like the US) to aid in its defense - likewise a preexising right. The US had the right as part of the response to Iraqi aggression to continue the war subsequent to the Iraqi withdrawl from Kuwait - again a pre-existing right (NB the policy of the WW2 allies before they founded the UN ) the US and Kuwait entered a ceasefire with the Iraq in 1991 - a ceasefire which was ratified by UNSC resolution BUT exists independently of UNSC resolutions - similarly the conditions in that cease fire exist independently of the UNSC. Now the US, being a responsible power, and desiring to build up multilateral institutions (perhaps more so under the previous administration than at present) chose to go through the UNSC - at no time did the US forfeit its right to renew the state of war which existed prior to the ceasefire agreements,

[lord of the mark]

Originally posted by GePap



The moral argument has no say in the UN right now, National sovereignty trump Human rights, so authorizing UN action intended for regime change unless everyone sees that regime as a real threat is a highly poisenous thing.

as per the precedent of Kosovo, wich has not been recgonized by the UNSC, Russia, or China, but which WAS supported by both France and Germany human rights can trump national sovereignty in the case of an imminent or ongoing act of genocide. This has not been invoked as a legal casus belli, since there does not seem to be an ongoing or imminent genocide in iraq, and there is no precedent for human rights violations short of genocide, or 12 year old acts of genocide providing such grounds. This is a grey area of international law at this point.

It is certainly justified to use a moral argument when the opponents of force themselves invoke moral arguments, which they regularly do (why for example must war be "a last resort" - from the legal point of view war may be justified even when other options exist - the argument that it must be a last resort is partly prudential, but even more a moral argument)

[GePap]

LoTM: The problem I have with your explination is that the UNSCR authorized actions solely on the basis of restoring the territorial integrity of the sovereign state of Kuwait. The forces attacking Iraq had no authorization for anything more. How then can one construe that the ceasefire agreement between the two forces, even if broken, would all of a sudden give the US authorization for taking steps, such as reigme change and the occupation of another soverign member of the UN,t hat it nevr had going into said ceasefire?

The UN mandate for the US in the Gulf was to free Kuwait and keep it free, and it said nothing about whether Saddam stayed in power or not, which was another huge reason why we did not go to Baghdad in 1991.

[MichaeltheGreat]

Originally posted by Imran Siddiqui
The UN CAN use force if it decides to.

That part's not an issue. It's the sticky detail of "how much."

Article 42
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

So yes, there is legal authority for a regime change if that regime is decided to be a threat to the peace, and sanctions are inadequate.

"Maintain or restore" would seem to be the operative words. Semantics and technical interpretations aside, (The Korean war never "officially" ended either) the security and territorial integrity of Kuwait seem to have been "restored" in 1991, and "maintained" ever since.

Obviously, the US is gonna do whatever it wants, and most likely, get the UNSC members to go along for one reason or another. In either case, though, it'll be pretty transparent that the UN is either a non-entity (if it does nothing), or else simply a finger-puppet (guess which finger? ) of the US to give a patina of international legal legitimacy to US policy.

[Edan]

Originally posted by MichaeltheGreat
The UN wasn't involved in Afghanistan, but the Taleban weren't a generally recognized government anyway.

IIRC, there was a UN resolution on this.

[lord of the mark]

Originally posted by MichaeltheGreat


That part's not an issue. It's the sticky detail of "how much."



"Maintain or restore" would seem to be the operative words. Semantics and technical interpretations aside, (The Korean war never "officially" ended either) the security and territorial integrity of Kuwait seem to have been "restored" in 1991, and "maintained" ever since.

The words are maintain and restore international security, NOT maintain and restore the territorial integrity of the state that has been invaded. Again, note the war during which the UN was founded. The allies did NOT seek to restore and maintaint the status quo ante bellum, - they souoght to maintain and restore international security by "unconditional surrender", occupation, and regime change.

[GePap]

So the issue comes down to whether Iraq, by its actions, trully represents a danger for the maintanence of international security as Germany and Japan used to.

It is in that simple point that we all disagree.

[MichaeltheGreat]

Any lawyer or any court would also likely tell you that the term "international security" is so overly broad and ambiguous as to be essentially meaningless.

If the notion is that the UN has the authority to do literally anything one or two permanent members of the UNSC can bribe or bully the other permanent members and the ten rotating members to go along with, then that's a rather interesting concept.

Maybe distaste for that concept is part of what is driving the objections of France, Germany and Russia.

[lord of the mark]

Originally posted by GePap
So the issue comes down to whether Iraq, by its actions, trully represents a danger for the maintanence of international security as Germany and Japan used to.

It is in that simple point that we all disagree.

But the point is that the UNSC has the right to do it, and that the UNSC voted to do it in UNSC 1441. Should they back down now, they will have indeed gutted their credibility.

[Ned]

I don't remember the precise circumstances to the US agreeing to a ceasefire in '91, but it appears that the ceasefire agreement did include Saddam's agreement to disarm. That agreement was endorsed by the UN.

We, the US and the UK, are principal parties to that ceasefire agreement. We should defer to the UN only so long as the UN is willing to enforce it. Otherwise we should have a right to enforce it on the grounds that we as principal parties to the original agreement and we have a legal right to see that it is enforced. The UN does not have the authority, IMO, to assume enforcement authority, fail in that duty, and then prevent the original parties from exercising their own right to enforce in the case of breach.

If the UN fails to enforce a ceasefire agreement where the principal parties on the prevailing side, the US and the UK here, are insisting on its enforcement, then the UN will indeed lose credibility. In the future, no one will bring the UN in to settle conflicts because the UN cannot be counted on to enforce the terms of any ceasefire agreements imposed on a losing side as a condition for the winning side to stop. Israel, for example, may simply continue its wars in the future, ignoring SC calls for ceasefires. India may not agree to an UN ceasefire if war breaks out with Pakistan and it is prevailing. How could it trust the UN to enforce disarmament terms on the Pakistani's. The South Koreans may insist that its own the next armistace line be the Yalu river and not the 38th parallel. The examples go on.

Saddam has had 12 years to disarm. But, as Hans Blix observes, Saddam still has not made the decision to disarm. He continues compliance on process and continues to evade and obstruct on substance. How much time should he have? Forever?

At least the French and Germans appear to think that the answer to this question is yes. But this answer clearly is inconsistent with the terms of the ceasefire, to the extent we understand them. Therefor, the French and German approach is tatamount to a UN failure to enforce and would justify a unlilateral US and UK declaration that the ceasefire agreement was in breach.

[lord of the mark]

Originally posted by MichaeltheGreat
Any lawyer or any court would also likely tell you that the term "international security" is so overly broad and ambiguous as to be essentially meaningless.

If the notion is that the UN has the authority to do literally anything one or two permanent members of the UNSC can bribe or bully the other permanent members and the ten rotating members to go along with, then that's a rather interesting concept.

Maybe distaste for that concept is part of what is driving the objections of France, Germany and Russia.

Then they should have objected to UNSC 1441. They did not say then, AND they DO NOT SAY NOW that Iraqi WMD are not legally sufficient to be a casus belli. what they do say is that inspections are working, that war is not necessary yet etc. They DO NOT make the legal arguments that are made here, rather they make factual arguments of a different sort. I understand the desire to focus on the legal arguments, since the factual arguments made by France and Germany are indefensible. It does make me wonder why they dont resort to the stronger legal arguments, aside from have painted themselves into a corner with 1441. I think it is that they do not wish to limit what the UNSC can do - rather they wish to delay the implementation of 1441, because the succesful implementation of 1441 would add to the global power odf the United States, and they do not want to see that. Ther euis the hope that if the US goes in unilaterally, the costs to the US diplomatically and in the arab street will offset such gain in power as the US gets from military victory. This is more important than preserving the UNSC.

[GePap]

Originally posted by lord of the mark
But the point is that the UNSC has the right to do it, and that the UNSC voted to do it in UNSC 1441. Should they back down now, they will have indeed gutted their credibility.

1441 only passed unanimously because it was ambigous. That the UN has doen nothing to enforce countless other resolutions, such as 262 (the other famous number of the UN) did not do much to "destroy its credibility". That soemone has the right to do something does not make it the right thing to do.

[Arrian]

Actually, GePap, I think any time that the UN fails to enforce a SC resolution, it takes a credibility hit. A big one.

You're right about the ambiguity of 1441 being the only reason it passed, though. Both sides could portray it how they wished.

-Arrian