English
By Alexandra Alexandridou, Analyst KEDISA
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
Article 2 (4) UN Charter
Ever since the creation of the Charter of the United Nations, various international actors tended to resort to unlawful force in violation of Article 2 (4) of the Charter and prioritize their self-interest over international law which in practice remained inactive. Even though Article 2 (4) was codified in the Charter to make sure that states would resort to armed force against another country only as a means of self-defense if provoked by another state first, some central actors used unlawful armed force not in order to defend themselves against an attack, but in order to promote their national interests. They tended, however, to at least project their interventions in other countries as legitimate internationally, abiding by Article 51 of the Charter referring to self-defense. The end of the Cold War was followed by a period of superficial obedience to Article 2 (4), as a result of the end of frictions between the two opposing coalitions. After 9/11, however, the United States started challenging the power of the Article and in the case of the Iraq invasion it did not even deem it necessary to explain itself internationally as it was the case in the past. The US, consequently, became the only guarantor of global security.
Early incidents of violation of Article 2 (4) raised the question for realists, whether international laws should be changed or adapted in order to conform to the new practices or alternatively whether the violators should be denounced. During the 70s the widespread answer would favor a more conservative attitude, since an adaptation of the Article would ultimately lead to an unsustainable system of power relations if the more powerful countries had the right to intervene militarily wherever they wished without the consent of the international community, whereas the less powerful states would have to endure the fate of the “Melians”. As the years passed, however, the stance of the international community towards more intrusive responses started becoming more flexible and more favorable to collective self-defense, in particular in view of the threat of terrorism.
The 2003 declarations, however, on the part of the Bush administration demonstrated a tendency to disable the supranational institution of the United Nations together with international law, in order to protect the US’s national interest. It is crucial to determine whether the United States’ actions were indeed in violation of the Charter or whether they were legitimate actions of self-defense, in order to subsequently determine their status as far as international law is concerned. Were they legal, were they illegal but demonstrating signs of international law transformation or did they create a new doctrine altogether?
The answer to the question comes from the international community. In the Iraqi case most countries contended that there was no imminent threat of an attack, since it was not certain that Iraq possessed Weapons of Mass Destruction, so there was no issue of self-defense. The United States and Britain, on the other hand, based their intervention on three previous Security Council resolutions which called upon international collective action in Iraq. These resolutions, however, referred to the conflict between Iraq and Kuwait in 1990 and permitted the intervention only in order to resolve that tension. They did not refer to Iraq’s disarmament obligations, which in any case had been assumed by Iraq in connection with the United Nations and not bilaterally with any particular state, so any non-compliance should be dealt with by the organization collectively and not unilaterally by any individual state. The resolutions were, however, misinterpreted by the US and Britain and used as an alibi for their intervention.
The question of whether the violation of an international law should lead to its reformation still remains and it has been made clear that the interpretation of the Charter changes according to practice and to the interests of those involved. In the case of Iraq for example, the justification provided in line with the Charter was that Iraq possessed nuclear weapons, violated human rights and was aggressive to other states. The majority of the international community, however, disagreed with the arguments provided and in the end it seemed that the US acted in order to protect its own security rather than the global one. The real question, as a result, does not have to do with whether new laws should or should not be created, but with who gets to decide on the nature of these laws and who gets to implement them. The question, therefore, becomes a matter of power and not one of international law.
This unilateral redefinition of the concept of self-defense as preemption, on the part of the US, did not constitute a transformation of international law, but a complete abolition of the United Nations, provided that there was an utter violation of the collective decision-making process. Thereupon, the US has been standing as the only guarantor of international security, a task it can, however, no longer undertake on its own given the financial burdens and the lack of international support and acceptance. Contrary to international demand for multilateral decision making, powerful actors still tend to disable the United Nations and terminate the jurisdiction of the organization. The only solution, therefore, is the attempt on the part of international actors to protect international law and create rules pertaining to the new circumstances, maintaining however the spirit of the Charter and not permitting any state to promote its national interests over the rights of the rest of the international community.