The war against Iraq is unlawful, so is the official support of military action in Iraq without a UN Security Council resolution. The UN Charter does not say that if one country breaches a binding resolution, other countries have the right to attack it. The precedent thus created is especially dangerous for small countries like Latvia, which has experienced the consequences of a failure of enforcing international law.
Iraq (2). The Interest of small States in the International Legal Order 0
Since my first article on the legal questions posed by the crisis in Iraq, the war has begun. Late in the evening of March 19, Latvia’s Saeima (Parliament) passed a decision supporting the fulfillment of UN Security Council resolution No. 1441. That very night, US and British armed forces fired the first round of missiles at Baghdad. Latvia’s stance on this issue, as well as the question of the legality of American and British military action, has provoked a heated debate in Latvia. Various officials and experts have put forth arguments to demonstrate the correctness of what has occurred. This article builds on the article published in February. The examination of the prohibitions on the use of force and the specific exceptions provided for by the UN Charter will not be repeated here. In this article I will consider the main arguments that have crystallized around the recent discussions of the war in Iraq in Latvia.
Argument 1. UN Security Council resolution No. 1441, along with other UN Security Council resolutions passed during the war in Kuwait and following its conclusion, provide a sufficient legal basis for a military attack on Iraq.
First of all, it should be noted that the US and British attempts to justify their actions on the basis of existing UN resolutions demonstrates the importance these two States place on receiving a UN mandate to attack Iraq. However dubious this reference to previous resolutions may be, just as during the Kosovo crisis, everyone turns to the UN to legitimize the use of force.
The essential question is, therefore, whether the material breach of international obligations by Iraq as noted in resolution No. 1441, automatically gives the US and Great Britain the right to use force? In other words, does international law allow the use of force against Iraq, which has broken legally binding Security Council resolutions, without specific Security Council authorization?
Neither the US, nor Great Britain maintain that resolution No. 1441 provides for this scenario. Both these States also rely for support on resolutions No. 678 and No. 687, which together gave the authorization to expel the Iraqi army from Kuwait through military action. This logic has a number of problems. Within the context of the annexation of Kuwait in 1990-91, the UN Security Council passed a series of resolutions establishing that a breach in international peace had occurred and the aggression had taken place. In reaction to Iraq’s continued annexation of Kuwait in violation of these resolutions, the UN Security Council gave its Member States the authority to reinstate the lawful government of Kuwait through the use of force. After the conclusion of this war, Iraq was required to disarm, while the UN agreed to guarantee the inviolability of the existing borders in the region. The history of Iraq’s disarmament is indeed long and has been punctuated by interruptions and numerous UN Security Council resolutions relating to the provision of humanitarian assistance to the people of Iraq, as their country has been under an embargo since the war in Kuwait. These resolutions repeat a commitment to Iraq’s territorial integrity and sovereignty. In 1991, resolution No. 687 stated that the member states would remove their military forces from Iraq once control over the demilitarized zone had been secured. It is interesting that even in 1998, when Iraq forced UN inspectors out of the country, the UN Security Council reaffirmed its respect for the territorial integrity of Iraq.
This history concerning the issue of Iraq demonstrates that the UN continued to work on this problem in accordance with the principles codified of the Charter. Nowhere is it stated in the UN Charter that if a State fails to adhere to a legally binding resolution, other States then have the right to attack it. In any case, the UN Security Council, in accordance with Article 39 of the UN Charter, must establish that such a breach threatens international peace in order to authorize Member States to use force to reestablish peace, as was clearly the case concerning the crisis in Kuwait.
Neither the US, nor Great Britain have the authority to unilaterally declare that Iraq is a threat to international peace. Both States may only make such a declaration through the UN Security Council. Both States have acknowledged as much as, up until the last moment, they attempted to get the Security Council to pass a second resolution on Iraq and, even now, negotiations on another possible Security Council resolution concerning humanitarian operations in Iraq are under way. It should be expected that the acceptance of any further resolutions might not be simple because, much like during the Kosovo crisis, some States may attempt to legitimize the attack on Iraq post factum.
At the time of the attack, the Security Council had not established that Iraq’s progress to date in the disarmament process was a threat to international peace. Thus, the attack on Iraq is unlawful. If, perhaps, the US and Great Britain had the support of an absolute majority of the world’s nations, this attack might at least have a certain legitimacy, but such a coalition was never created.
Argument 2. The US and Great Britain are acting in self-defense as provided for in Article 51 of the UN Charter.
It must be noted that neither the US, nor Great Britain have advanced this argument, but it has been heard in Latvia. In what instances may a State exercise its right to self-defense? The text of this article states precisely - “if an armed attack occurs” against a State, it may exercise its right to self-defense. This was the case concerning the attacks on September 11th. The moment the Security Council begins to deal with the crisis, the State in question must cease all self-defense related activities. Measures taken in self-defense must always be proportional.
Iraq has attacked neither the US, nor Great Britain. One cannot persuasively argue that Iraq is connected to Bin Laden’s organization, as sufficient evidence has not been provided. Moreover, questions arise as to whether war would be a proportional response in this instance.
Article 51 of the UN Charter does not provide for pre-emptive self-defense. The theory of pre-emptive self-defense was put forth by both the US and the USSR during the Cold War as justification for intervening in the affairs of other nations. It is clear, however, that both States violated international law. I do not think it is in the interests of small nations to support this theory or practice of this character. The history of Latvia is a glaring example of where such a policy can lead.
In contrast to national law, international law depends on goodwill of the States and their desire to observe international law. Thus, since the creation of the UN, there have been a relatively large number of violations of the UN Charter and other international legal norms, responsibility for which lies squarely on the shoulders of the governments of States concerned. However, this does not mean that international law does not exist or that it can be ignored. We would never say that a criminal code should be forgotten simply because many crimes occur in a State. In the majority of instances, international law has ensured order and influenced the course of world events.
Argument 3. The UN is unable to prevent threats to the peace. Nations (Latvia) themselves must actively participate in the maintenance of international peace.
What is the UN? It is a collection of nations. If the UN is not working well, it only has its Member States to blame. Similarly, in the discussion in Latvia, the League of Nations is often cited. Yes, the League was unable to stop the Munich agreement in 1938 and the Second World War thereafter. Why? Did the members of the League of Nations really want to do anything about these problems? Why didn’t the US ever join the League of Nations?
Both international legal theory and theories of international relations (in particular, institutional theory) have long since established that the regulation of State behavior through an institutional framework limits freedom of action and, in any event, changes the nature of their activities. At the same time, the institutionalization of international relations has allowed the strengthening of international law since the Second World War and provided certain stability even during the Cold War. It must be asked why, for example, the US is so unwilling to join those international institutions and agreements that contain international monitoring mechanisms?
Beyond a doubt, the system of international law and institutions, including the UN, is only as effective as States desire it to be. As evidenced by Latvia’s activities during the Iraqi crisis, even small States can influence international processes on their own initiative. If the States, including Latvia, do not wish for the UN to be powerful, than it will not be. It is incorrect to try and separate the UN as something self-sufficient apart from the decisions and actions of its members.
The question remains, did the US exploit all possible means to forge a global coalition and gain the authority of the UN Security Council for actions against Iraq? Wasn’t the current administration’s decision to go to war with Iraq clearly predictable for some time regardless of whether the UN could or could not influence the situation? That the UN nevertheless continues to be an important feature of the global order is demonstrated by the fore mentioned attempts by the US and Great Britain to justify the war on the basis of existing UN resolutions.
Argument 4. After the war in Iraq, both the world and Latvia will be better, more stabile and safer.
No one needs to be convinced of the brutal nature of the regime of Saddam Hussein or the threat it posses. Hopefully, this war will, first of all, bring freedom to the Iraqi people. It is possible that the Iraqi people will thank US and British forces for setting them free because, as the leadership of the US army has maintained, the US does not plan to occupy Iraq but rather to free it.
Nevertheless, what does the Iraqi precedent mean for international law and international relations? The greatest threat is that, acting on the basis of this precedent, other States could attempt to use force in their mutual relations without the authority of the UN Security Council. As several information services have reported, Turkey already attempted to employ this tactic over the weekend – citing the threat of Kurdish “terrorists,” it sent its forces over the border into Iraq. Likewise, Russia could argue that “Chechen terrorists” have taken refuge in Georgia or, shall we say, Lithuania, but the UN Security Council is unable to do anything about it and so Russia must unilaterally counter this threat to international peace. Does the increased possibility that such arguments might be employed make the world safer?
That the US and Great Britain have attempted to cite at least some UN decisions as the legal basis for their action gives hope that the war in Iraq has not completely undermined the UN and the legal principles that support our contemporary world order. Nevertheless, the fact that today the effort must be made to clarify that nothing has changed in the rule of law does not give credence to the simple proposition that the world has become safer and more stable.
Argument 5. The decision passed by the Latvian Saeima is a logical continuation of Latvia’s position on the issue of Iraq and is therefore lawful.
In the course of commenting on the first argument, US and British military action was found to be unlawful. The position of those States, which officially support the military action in Iraq without a UN Security Council resolution, is also unlawful. Unfortunately, Latvia is among those States that have given their support in contradiction of the UN Charter. Has the Saeima’s resolution altered anything in this situation?
The Saeima’s resolution speaks about “support” for the fulfillment of resolution No. 1441. This formulation is idiomatic because Latvia, as a member of the UN, is legally bound by this resolution under Chapter 7 of the UN Charter and is obliged to fulfill it. Thus it is necessary to read very closely what exactly this UN resolution demands. Point 10 of the resolution asks all UN members to fully support the UN weapons inspectors in the fulfillment of their mandate and to provide any information on Iraqi attempts to acquire materials intended for the production of forbidden weapons.
As legally binding international norms are directly applicable to Latvia’s legal system without the need for their incorporation, it is clear that the resolution’s 10th point is legally binding without the need for any extra law or decision.
If we are talking about the participation of the Latvian National Armed Forces in international operations then, according to the law, Latvia’s armed forces can take part in international operations, “after the resolution, recommendation or invitation of an international organization of which the Republic of Latvia is a member or with which the Republic of Latvia cooperates or after the invitation by a member of the North-Atlantic Treaty Alliance or the European Union.” No such resolution, recommendation or invitation currently exists as no international organization has qualified the crisis in Iraq as an international peacekeeping situation requiring humanitarian assistance. Thus the legal basis for the Saeima’s resolution at the time of its adoption raises numerous questions.
In the place of a conclusion, I would like to address those who have expressed skepticism about the role of international law in the world of realpolitik of States as sometimes argued. It has been said that international law did not protect the Baltic States in the past and, therefore, the time has come to join in on the side of a great power as this is the only way to guarantee Latvia’s security. If realpolitik always had the final say, then the policy of non-recognition of the incorporation of the Baltic States would have gone up in smoke after twenty years of occupation. Likewise, the Baltic claim to the recognition of their renewed independence as opposed to a successor State to the former USSR would have been just as unimaginable. In other words, the Baltic States in particular are deeply indebted to international law, as even more examples would prove.
The international legal system is complex and nuanced and does not always provide for simple solutions. In part, this is because the main actors and implementers of rules are States. Politics does play an important role in international law, but this interaction works both ways. The proposition that inter-State relations are only hampered by legal considerations and that space must be given to “real” politics is all too familiar in official rhetoric. Just how politically shortsighted this conception of legal commitments can be was aptly demonstrated by the Munich agreement of 1938, which so often comes up in discussions in Latvia. Centuries of experience show that the absence of regulations or, in other words, anarchy does not bode well for either the relations between States or for developments within States themselves, especially as far as society’s weaker members are concerned. Only the law and the resulting institutions can guarantee everyone equal rights. Latvia, which has experienced a failure of international law and institutions, should, in my opinion, bear special responsibility for these values. No one has said that the US has completely disrespected these values. The danger stems from the fact that while today it is the US, which is waging war, tomorrow it could be some other power that might not be so democratic. Bilateralism is and will remain a threat to world peace. It is especially threatening to small States as at least international institutions give each State one vote.
 “Iraq. What are the choices?”, policy.lv, 10.02.2003.
 Point 4, UN Security Council resolution No. 687 (1991).
 For example, UN Security Council resolution No. 1454 (2002).
 Point 6, resolution No. 687.
 UN Security Council resolution No. 1205 (1998).
 If, of course, there is not sufficient justification to act in self-defense.
 Article 39 states that: “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.”
 During a meeting of the EU in Brussels over the weekend, Blair raised this issue but Chirac announced that the Security Council will not legitimate the attack on Iraq. Thus, it may be that passing another Security Council resolution will not be simple. “Blair-Chirac quarrel rages on at EU summit,” International Herald Tribune, 22 – 23 March 2003, p. 1, 4.
 UN Security Council resolution No. 1368 (2001).
 Questions remain surrounding the distribution of Iraq’s oil resources and whether local inhabitants will have access to them after the war.
 International Herald Tribune, 23 – 24 March 2003.
 I. Ziemele, “Starptautiskās tiesības Latvijas tiesību sistēmā un tiesu un administratīvajā praksē”, grām. Cilvēktiesību īstenošana Latvijā: tiesa un administratīvais process, Rīga: LU Cilvēktiesību institūts, 1998, pp. 18. – 49.
 Point 1, The Law on the Participation of the Latvian National Armed Forces in International Operations, Latvijas Vēstnesis, Nr. 30, 25.02.1995.
 The situation is changing rapidly. The UN Secretary-General has already expressed concern about the humanitarian situation in Iraq.