International law and IR theories The invasion of Iraq, 2003

Topics for today Events of the day/week Legality of Iraq invasion, 2003  Sovereignty vs. collective security After Iraq: Is the United Nations/ international law relevant? An alternative to punishing states:  Individual responsibility for heinous crimes  International Criminal Court 1/25/2008Hans Peter Schmitz

Secretary General  Ban Ki-Moon, 64  From: South Korea  Previously: Minster of Foreign Affairs and Trade  Last Asian SG: U Thant, Burma, /25/2008Hans Peter Schmitz

The invasion of Iraq, 2003 Was the 2003 invasion of Iraq legal under international law? Answer: NO Does it matter that the invasion was illegal under current international law?  Realism: No. Law follows power.  Institutionalism: Yes. It undermines democratic alliances and cooperation among sovereign states.  Idealism/Identity: Yes. It undermines the power of the United Nations. 1/25/2008Hans Peter Schmitz

The Case against Iraq  Defiance of United Nations Security Council resolutions  Gross and systematic human rights violations 1/25/2008Hans Peter Schmitz

Options for Military Action Incompatible with International Law  Unilateral military action  Assassination  Use of WMD  Violence against Civilians Compatible with International Law  UN-approved economic and military sanctions  UN-approved multilateral military action  Deterrence and containment  Bilateral and multilateral diplomacy 1/25/2008Hans Peter Schmitz

Iraq 2003  Under international law, Iraq’s sovereignty (like all other states’) is protected.  This protection of sovereignty is not absolute:  Permissive rule: the right to self-defense (UN Charter Art. 51 under Chapter VII, last article)  Decisions by the UN Security Council claiming a “threat to international peace and security” (Art. 39 under Chapter VII). 1/25/2008Hans Peter Schmitz

Chapter VII of the UN Charter ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION 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. 1/25/2008Hans Peter Schmitz

Article 51 (Chapter VII) “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council (……).” Is Article 51 an exception to UN rule of cooperation or a “natural right” of states existing prior to the UN? 1/25/2008Hans Peter Schmitz

Is an (unilateral) attack justified? How can states deal with new threats such as terrorism and weapons of mass destruction? Two rules give room for interpretation and evolution of IL: necessity and proportionality 1/25/2008Hans Peter Schmitz

Necessity and Proportionality  Necessity: pre-emptive self-defense answers to an “ imminent ” and “ overwhelming ” attack.  Proportionality: The reaction has to be roughly proportional to the threat. 1/25/2008Hans Peter Schmitz

US and the UN Security Council In 2002, President Bush sought to get approval from the UNSC to invade Iraq. After failing to get direct approval, the US and the UK took unilateral military action. 1/25/2008Hans Peter Schmitz

Resolution 1441 (Nov 8, 2002) Acting under Chapter VII of the UN Charter: 1. Decides that Iraq has been and remains in material breach of its obligations…… 2. Decides, (…), to afford Iraq a final opportunity to comply with its disarmament obligations (….); and accordingly decides to set up an enhanced inspections regime (…) 3. (gives Iraq 30 days to compile a list of all weapons) 4. (declares all omissions “further material breach”) 5. Decides that Iraq shall provide UNMOVIC and the IAEA immediate, unimpeded, unconditional, and unrestricted access (….) (…..) 1/25/2008Hans Peter Schmitz

The Split after 1441  US/UK: Resolution plus further material breach is sufficient to authorize military action by a group of states.  China/France/Russia: 1441 does not authorize military action. 1/25/2008Hans Peter Schmitz

Is pre-emptive self-defense acceptable? Yes  New threat of terrorism and advanced technology.  Failed states.  Stability and security are more important than the law. No  Opens the door to abusive behavior by ‘rogue states.’  US is not using pre-emption against North Korea and Iran. Threats only strengthen the enemy (Iran so far..).enemy  There are no exceptions for super powers and IL works based on reciprocity.  If you want a rule, you have to play by it. 1/25/2008Hans Peter Schmitz

How relevant is the UN today? The UN was formed after World War II. However, the current security threats (terrorism and civil wars) were not a major concern in the 1940s. How should the UN be reformed to effectively respond to the challenges of the 21 st century? Realism: Further strengthen powerful states. Institutionalism: Strengthen reciprocity. Idealism: Strengthen UN autonomy and power, create a UN police force. 1/25/2008Hans Peter Schmitz

What about international law? International law and the UN: irrelevant when needed most? Answer: Not necessarily. Alternative forms of accountability International Criminal Court: Individual responsibility for war crimes, crimes against humanity, and genocide. 1/25/2008Hans Peter Schmitz