The war against Iraq has shattered trust in the validity of law in international relations. Among specialists in international law there is far-reaching agreement that this war was not compatible with the law.
There was no mandate from the UN Security Council; unlike in Kosovo, the military action took place even against the declared will of the Council. The war also cannot be based on the right of self-defence since there was no attack by Iraq and no immediate threat of one.
And finally the war also cannot be justified as a 'humanitarian action to liberate the Iraqi people'. If this extended interpretation applied to the anyway contentious institution of humanitarian intervention, then it would give free reign worldwide to 'wars of liberation' to assert human rights and democracy. There would be little left of the ban on the use of force in international law, upon whose basis there is no longer any right to wage war.
In view of this clear legal finding, the old question of the relationship of power and law in international relations arises under a new portent. The war against Iraq is not the 'normal case' of a breach of international law. Rather, it stands for a new hegemonic claim by the USA, if necessary also against the will of the community of nations, to safeguard its national security interests far in advance of possible threats.
The Bush doctrine of so-called 'pre-emptive wars' separates the right to self-defence from its genuine defensive objective and expands it to an offensive instrument of preventive warfare. The doctrine boils down to a termination of the basic consensus upon which the entire United Nations system of collective security is based.
A dilemma for the international law system and the UN as its central institution arises from this new hegemonic ideology of the remaining superpower: if one yields to the USA's claims to power and assertions of right, one runs the risk that the law and the UN will be instrumentalised; if one opposes them, there is a threat of the break-up of the law and as a result its loss of validity for lack of power of assertion.
Voices can already be heard which for this reason speak of adjusting the 'old' international law to the new hegemonic structures or even its assimilation in an also legally sanctioned 'pax americana'. In the same breath, the UN is accused of failure in the Iraq crisis and for this alleged reason is also denied a central role in postwar Iraq.
These voices must be contradicted resolutely. As much as international law needs support by power in order to be able to assert its claim to validity, so much the less may it hand itself over to power.
The UN did not fail, since the Security Council refused the USA (and others of the 'coalition of the willing') the mandate they demanded for a pre-emptive war. Rather, it did the law a service in that it repulsed what in the end was blackmail-like pressure for legitimisation of a war that had already been decided upon and stuck to the strategy of peaceful disarmament of Iraq.
From the beginning of this year, Iraq posed no danger that could be countered only by military might. That nevertheless it came to war is not to be blamed on the UN but on those countries that ignored these facts and dodged a decision-taking situation which was uncomfortable for them.
The ensuing open conflict between 'hegemonials' and supporters of the 'rule of law' is preferable to a compliant adjustment of the law to politically defined hegemonic security interests because the normative claim of international law must not be given up. Taking this path, however, requires considerable efforts, including on the part of the political public.
It is about, for instance, preventing the file on the issue of the admissibility of the war in Iraq being closed. For the ending of the unjust rule of Saddam Hussein does not transform the war in violation of international law into a legitimate action.
In addition, the competence of the UN for coping with the aftermath of the war and reconstruction in Iraq must be reclaimed. The UN's post-conflict peace-building is now an integral part of securing peace through the world organisation and must not be drawn into the embrace of the victorious power.
About the writer: Dr Thomas Bruha is Professor of Public Law, especially International and European Law, at the University of Hamburg. bruha@europa-kolleg-hamburg.de
The above article first appeared in D+C (Development and Cooperation) magazine, Vol. 30 No. 5, May 2003.
