THE UNITED NATIONS SECURITY COUNCIL AND INTERNATIONAL CONFLICT RESOLUTION
A CASE STUDY OF THE UN SECURITY COUNCIL WEAPON INSPECTION IN IRA
ABSTRACT
This research effort grew out of concern for the increasing use of force in settlement of disputes by the United States which has the tendency to reduce the moral stature of the UN (above all, the security council) an organization committed to the maintenance of international peace and security. It seeks to analyse the role of the United Nations security council in international conflict resolution, using tonal conflict resolution, using the UN Weapons inspection in Iraq as a case study. This research work sets itself to determining whether the Weapons Inpectors did indict Iraq of possessing WMD. The central focus of the study is to determine whether the UN Security Council authorized the war or whether the war was a pre-emptive action on the part of the U.S. and its allies. On the above premise, the theoretical framework of political Realism which holds that the overriding national interest of each State is its national Security and survival defined in terms of power. However, the study revealed that the U.S. invasion of Iraq was a clear-cut case of aggression and territorial annexation of another country and therefore a violation of State Sovereignty. The findings of this research are that the United Nations Security Council which is the only organ that can authorize war in modern International law did not authorize the war on Iraq. Consequently, in a bid to justify the war, the U.S and U.K anchored their action on UN Resolution 1441 which, however, never gave Member States an explicit permission to attack Iraq. The study also revealed that the U.S. led war on Iraq was pre-emptive. Most importantly, the work revealed that the war has a significant relationship with the U.S. foreign policy on the Gulf region. Based on these findings; the study concludes that for peaceful co-existence among Nations, all States should uphold the integrity and authority of the United Nations and of International Law.
CHAPTER ONE
INTRODUCTION
The United Nations Organization was formed in 1945; it was to be a universal single purpose organization that would promote world peace and security. In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council the primary responsibility for the maintenance of international peace and security and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.
The United Nations Security Council (UNSC) is the organ of the United Nations charged with maintaining international peace and security among nations. While other organs of UN only make recommendations to member governments, the Security Council has the power to make decisions which member governments must carry out under Article 25 of the United Nations Charter, which reads “the members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the president charter. The decisions of the Council are known as UNSC Resolutions. The Council is made up of 15 Member States, consisting of five permanent seats and ten temporary seats. The five permanent seats are China, France, Russia, The United Kingdom and the United States. These big five hold veto power over substantive but not procedural resolutions. The ten temporary seats voted in by the UN General Assembly on a regional basis. The presidency of the Security Council is rotated alphabetically each month.
The Security Council performs these functions on the basis of a universal phenomenon that has come to be known as collective security. This is a system in which aggression against a state is taken to be aggression against all that are parties to the treaty; consequently, a collective action is to be taken by other states to counter such an aggression. A good example was in 1991, when the United States led a coalition force of about 23 countries in a battle code- named “Operation Desert Storm” on Iraq for the formers invasion and annexation of Kuwait on August 2, 1990.
Resolution 687, adopted in 3 April 1991 set out terms of cease fire which demanded respect of inviolability of Iraq- Kuwait border, as well as inspection and destruction of Iraq’s weapon which range greater than 150 kilometres, together with related items paragraph 9 of the Resolution provided for the creation of the United Nations Special Commission (UNSCOM) with the mandate to implement immediate on- site inspections of Iraq’s chemical, biological and missile Capabilities, on the basis both of Iraq’s own declarations and of the designation of the special Commission itself. Iraq was equally obliged to declare its nuclear material, equipment and sub-systems to the International Atomic Energy Agency (IAEA).
A major reason given by the Bush administration for waging war on Iraq was that she possessed Weapons of Mass Destruction (WMD) as well as had links with al-Qaeda (Osama Bin laden and Saddam Hussein). This led to the adumbration of a doctrine of “pre-emption” by the Bush administration; in Blair’s words, “it is a matter of time unless we act and take a stand before terrorism and weapons of mass destruction come together, and I regard them as two sides of the same coin”.
In the period before the war, when it became apparent that a specific UN Security Council authorization was unlikely, States and international lawyers criticized the proposed US-led military action in Iraq as unlawful since this action was not a case of self- defence. To the extent that the invasion was based on a claim of anticipatory self- defence, Article 51 has been stretched beyond endurance. Secondly, to the extent that the invasion was based on claims of threats to international peace and security sufficient under Chapter vii to justify Security Council authorization, but with those claims poorly argued and the council eventually by passed, the credibility of the whole Charter system has again been frontally challenged. And thirdly, to the extent that the invasion was based on Saddam Hussein’s record of tyranny over his people- but again, poorly and inconsistently argued, and with the council by passed – we have almost choked at birth what many were hoping was an emerging new norm justifying intervention on the basis of the principle of “responsibility to protect”.
Finally, this work would analyse the war on Iraq and its implications for international law. The law is clear, no amount of weapons a state has whether chemical, biological, and nuclear, laser and blinding weapons can be conceived as an attack by the possessor state against another state. Such possession may however be styled by the UN as constituting a threat to peace. A threat to National Security is not a recognized basis for use of force. President Bush, in giving the President of Iraq Saddam Hussein, a 48 hours ultimatum to leave Baghdad said: “the United State of America has the Sovereign authority to use force in assuring its own national security”. It becomes the task of this thesis to ascertain whether every state can launch a pre-emptive war against any state, she regards as a threat to her national security, which implies that international law no longer exists for nations to obey or that international law only entitled the right of pre-emptive war on the United State of America. Nevertheless, the study will be guided by the following research questions.
For Weapons of Mass Destruction?
The broad objective of this study is to critically examine the UNSC and International Conflict Resolution. Whereas the specific objectives of the study are:
This study has both theoretical and practical significance. Theoretically, this research seeks to contribute and bring fresh insight to the understanding of the UN Security Council Weapon Inspection in Iraq. As a result it will reveal how America, invaded Iraq. Therefore, the significance of this thesis is predicated on the fact that it would re-echo, the need for nations to support the concept of collective security, a process in which all members of the international community join strengths to deter or punish those who resort to violence and aggression and discourage unilateral action on the part of powerful nations in pursuance of its national interest. The study will add to existing literature in this area and serve as a reference material for students and scholars with interest Weapon Inspection in Iraq. We hope that the study will stimulate further investigation in this area as little or no research has be done regarding Weapon Inspection in Iraq.
At the Practical level, the findings of this study willhighlight the role the United Nations Security Council played in trying to discourage and prevent the United States from attacking Iraq. This work will help to reaffirm and increase the moral status of the UNSC among States especially third world States (the weaker and vulnerable members of the international system who depend upon these institutions to protect their sovereign status). This work hopes to make a modest contribution by way of addition to the extant literature on the US-led war on Iraq and its implication for international law by showing that, both the UN Charter and international law made adequate provisions for peaceful settlement of disputes among States.
This work is equally important as it will act as a light and a guide on the paths of powerful States not to use their privileged positions in the UN to telescope and interfere with any UNSC weapons inspection activities in the future. Finally and most importantly, this work will show that, the United States and the United Kingdom stand accused of having waged an aggressive war against Iraq, exactly the same crime of which Iraq was accused in 1990 following the invasion and occupation of Kuwait. International law protects the sovereignty of disagreeable regimes, just as it did not matter in 1990 whether Kuwait was well governed, so it was irrelevant to this indictment that the governing regime in Iraq in 2003 was deeply unpleasant. Also, the findings of this study will help policy makers in Africa and Nigeria in particular to weigh options critically before acting especially, in international politics where betrayal has become almost a norm of statecraft.
The literature review focuses on the diverse scholarly perspectives on the vexed issue of the invasion of Iraq considered fundamental in understanding and answering the questions posed in this paper. This includes the theoretical arguments with regards to the legality and justification of the invasion, the history and dynamics of UNSC’s role in the invasion of Iraq.
DID THE UN SECURITY COUNCIL SUPPORT FOR THE INVASION OF IRAQ HELPS ELIMINATE THE PRODUCTION OF WEAPONS OF MASS DESTRUCTION IN IRAQ?
In the decade before the latest Iraq war, were numerous crises giving rise to demands for military action and particularly for intervention in States without the consent of those states government. Force has been used in a wide variety of circumstances and with a wide variety of legal justifications and authorizing bodies. Some of these actions have challenged certain aspects of the existing body of international law relating to the resort of force, in particular, they have been seen as either violating, moving beyond or reinterpreting the two principal accepted legal grounds for the use of force or self- defence as recognized in Article 51 of the UN Charter and authorization by the UN Security Council.
According to Anjali (2002), the power of Security Council in dealing with disputes and situations that may disrupt international peace and security are the logical consequences of the “primary responsibility” conferred under Article 24, the specific powers given to the Council under Chapter VI and VII of the Charter can be conveniently grouped under two headings; those powers that the organ may excise to maintain or restore international peace and security once peace has been threatened or breached (1946-1990).
According to Amechi (2003), it should be noted that the maintenance of international peace and security is a primary function not of the state but of the U.N as an international institution with a judicial personality, it is therefore unacceptable for a member of the UN to develop a foreign policy incompatible with this provision. He cited Article 33 which provides that:
Parties to dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall first of all seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort. To regional agencies or arrangements, or other peaceful means of their own choice (Amechi, 2003:81).
Amechi (2003) further observes that Article 2(3) and 33 impose a duty on all to settle difference by peaceful means for either to do otherwise is a breach of the charter and therefore a breach of international law.
According to him…The United States did not exhaust the remedies provided in Article 33, Article 2(4) requires All members not only to use force against other states, but also not to threaten any other state with use of force: both the threat of force and the use of force are in conflict with Article 2(4) of the charter.
The United States and its allies not only threaten Iraq with use of force if it did not allow the UN inspectors “free access” as understand by the US, it would be attacked not by the UN but by the US and its allies.
Similarly, Adam (2003) has expressed that; the greatest problems regarding the legitimacy of uses of force arise when they are neither authorized by the Security Council nor a straight forward case of self- defence in response to an armed attack. To put it appropriately in his words:
It would be easy to say that, apart from the cases of self-defence, force should never be used except when explicitly authorized by the Security Council.
Supporting this position was the views contained in a letter from sixteen international law teachers, according to them , when it became apparent that a specific UN Security Council authorization was unlikely, states and international lawyers criticized the proposed US-led military action in Iraq as unlawful since this action was not a case of self-defence against an actual armed attack by Iraq, and did not have explicit authorization of UN Security Council, could easily be viewed as having at best a doubtful basis in international law.(Keir, 2003:51).
Some writers in the field of international relations believe that the inability of UN Security Council to handle the Iraq crisis has rendered the organization irrelevant. One of such scholar is Michael (1989) According to him:
The failure of the UN Security Council to agree on any coherent line on Iraq before the outbreak of war on 19-20 march 2003 confirmed in spectacular fashion, certain limitations of the council…with the rapture of the UN Security Council, it became clear that the grand attempt to subject the use of force to the rule of law had failed (Michael, 2003: 120).
Mat (2003) partially supported this stance when he stated that, the failure to overcome council division followed by the US-led invasion of Iraq in March 2003 without explicit council authorization for the use force, added further to the sense of foreboding among those anxious for the council to play its charter-prescribed role in the field of peace and security.
Herbert (2003) reasoned differently when he asserted that, the UN perfectly embodies in institutional form the strategic paradox of our age; it has become indispensable before it has become effective. As Adam Roberts puts it. The Security Council, while having no monopoly on international security issues, did not become entirely irrelevant to the Iraq crisis, in which its existing resolutions were of crucial important; and international law, while in a state of contestation has developed significantly in response to events since the end of the cold war and continues to provide useful criteria for consideration of particular uses of force. Adam (2003) maintained further that:
The council is quite simply, the only forum of its kind; that is , a forum able to address, if not resolve security challenges of international concern and crucially to confer near-universal legitimacy on the actions of states or groups in a way that no alternative candidate or agency, real or proposed has been able to do (Adam, 2003: 45).
According to Martin (1999) As the council’s recent handling of Iraq weapons inspection Crisis made abundantly clear, power politics within and outside the organization is alive and well, and the entirely predictable persistence of conflicts of interest and value among members states means that the council is at one level, inescapably doomed to “ineffectiveness’, this is true above all, when the core or vital interests of states are seen to be at stake and when, as in the case of Iraq, issues of coercion are involved (Martin, 1999: 78).
An underlying issue informing the present article is whether the UN Security Council has become irrelevant in its handling of the weapons inspection crisis in Iraq considering the fact that majority of countries and people of the world were opposed to the US-British disregard of international law and bypassing of the UN Security Council. According to Mats (2003),
The intense diplomatic effort by Britain and the United States to secure an explicit authorization for the use of force, however unsuccessful and flawed the diplomacy, is itself testimony to the importance attached to the council’s legitimizing role. Not only that, but both the US and the UK, in justifying the resort to force and explaining the need for military action have continued to rely heavily on UN Security Council Resolutions, a fact that only reinforces the sense that neither country felt they could dispense with some kind of UN sanction for its chosen curse of action (Mats, 2003: 55).
Supporting this view was the speeches and statements made by delegates to the XIII summit meeting of the Non-Aligned movement in Kuala Lumpur. According to them, “This esteem in which the Council continues to be held derives in large part from its custodial role as protector of principles and rules seen by the vast majority of member States as foundational to international order-above all, the principle of sovereign equality of states and its corollary, the rule of non-intervention by states in the affairs of other states. (Ari, 2003: 23).
To the extent that military action in Iraq has been viewed in many parts of the world as a challenge to these principles, one may expect to see a renewed commitment to the UN by the membership at large. This, in turn, is unlikely to diminish the need for major powers to work through the UN to secure legitimacy for its actions.”
According to Toby and Steven (2002),
…the US has repeatedly been drawn back to the UN, finding that the legitimacy it confers on its actions, if not indispensable to taking action, is extremely costly to ignore…The very decision by Bush to confront the issue of Iraq’s non-compliance through the UN is testimony to this fact(Toby and Steven, 2002: 451).
As Steven (2002) puts it, “the US-led war has come to be regarded-right or wrong as an unwarranted, illegal and unjustified assault on sovereignty of an independent nation. To the majority of the UN’s Member States, the perception of operational Iraqi freedom as a test case of the Bush doctrine on pre-emption…has only reinforced the importance of the UN’s custodial role as protector of key character principles.
According, a nationwide poll (2003) conducted after the start of hostilities on the United Nations showed that the importance of the UN had not been diminished as a result of its failure to approve action over Iraq. Confirming this stance was Colin Powell’s assertion that a “UN role might help lend legitimacy to a post-war Iraq occupation and reduce hostility toward the US and its allies in the region and around the world. While Gareth (2002) holds that: “Threats to international peace are what the Security Council says they are” Fighting against.
Weapons of mass destruction were a major pretext by the Bush administration for waging war on Iraq. According to Paul (2002), The issue of weapons of mass destruction was the point of greatest agreement among Bush’s team among the reasons to remove Saddam from power, the truth is that for reasons that have a lot to do with the US government bureaucracy, we settled on the issue that everyone could agree on, which was weapons of mass destruction as the core reason.
Mike (2002) asserted that, as early as January 2002, President Bush had declared that; states like Iraq and their terrorist allies constitute an axis of evil, arming to threaten the peace of the world by seeking weapons of mass destruction; these regimes pose a grave and growing danger. They could provide these arms to terrorists, giving them the means to match their hatred. They could attack our allies or attempt to blackmail the United States.
In his State of the Union address, President Bush linked the case for war against Iraq to the September 11 attacks, implying that Saddam Hussein would replicate them once he got unclear weapons. In his words: “Saddam is a threat and we are not going to wait until he does attack, he declared, his weapons of mass destruction are a direct threat to this country, if the world fails to confront the threat posed by the Iraqi regime…., from nations would assume immense and unacceptable risks, the attack of September 11, 2001, showed what the enemies of America did with four airplanes. We will not wait to see what terrorist states could do with weapons of mass destruction.
In the same speech, he stated emphatically that:
Saddam Hussein is a threat to our nation, September, 11 changed the… strategic thinking, at least as far as I was concerned, for how to protect the country… used to be that we could think that you could contain a person like Saddam Hussein, that oceans would protect us from his type of terror. September 11 should say to the American people that we’re now a battle field, that weapons of mass Destruction in the hands of a terrorist organization could be deployed here at home (Bush, 2002: 18).
According to the Washington post (2002), when asked about the possible human and financial costs of a war with Iraq, the President answered, the price of doing nothing exceeds the price of taking action…The price of the September 11 attack was enormous …And I’m not willing to take chance again.
The failure to date of the Pentagon to turn-up evidence that any weapons of mass destruction existed in Iraq poses obvious problems for the US. According to Patrick (2003) “ The unprovoked war was manifestly illegal, waged without the sanction of the UN and without any prior attack from Iraq” The absences of chemical and biological weapons have only confirmed what millions around the world have concluded, the justification for the war was nothing but a pack of lies. According to the New York Time, Documents were forged by the Bush Administration purporting that Iraq was trying to import Uranium from Niger with the intention of creating false impression that Iraq has weapons of mass destruction and is close to manufacturing nuclear bombs.
This false allegation according to the paper was refuted by Retired Ambassador Joseph Wilson who was asked to travel to Niger to see if this was true and he reported that it was not. Furthermore, the U.N Monitoring, Verification, and Inspection Commission (UNMOVIC) 18th Quarterly Report refuted the allegation by the Bush administration that Iraq possesses several Unmanned Air Vehicle (UAV) programmes that were intended to deliver chemical and biological weapons, and concluded that there was no evidence that Iraq developed drones. Remotely Piloted Vehicles (R.P.V.s) and (U.A.V.s) of prohibited ranges or capable of delivering chemical or biological weapons. According to the report;
These systems were more likely intended for conventional military Purposes such as air defence training, data collection and Surveillance (Joseph, 2002: 4).
According to Patrick (2004), “compounding the failure of the US to find any weapons stockpile are declarations by leading Iraq Weapons scientist that were in U.S custody, that Iraq’s previous chemical, biological and nuclear Weapons programs were dismantled after 1991 Persian Gulf War, during the regime of UNSCOM inspection” Again, the (Los Angeles Times of April 14, 2004), in its editorial gave a comprehensive on LT. Gen. Amir Saadi- Saddam Hussein top Science Adviser who turned himself over to U.S. forces in Baghdad on April 12. According to the report;
Lt. Gen. Amir Saadi told 2DF- a German television network which filmed The event, that Iraq no longer possessed any weapons of mass destruction, Declaring, I was telling the truth, always telling the truth, never told any Thing but the truth, and time will bear me out; you will see (Patrick, 2003: 24).
Hans (2003), a former Chief UN Weapons inspector denounced the US led invasion of Iraq. In his words:
The administration of US President George W. Bush must have other Reasons to invade Iraq besides the officially pronounced purposed to Find and destroy weapons of mass destruction, this is because the UN Weapons inspectors I led for several years and constantly monitored Failed to find any weapons of mass destruction in Iraq (Hans, 2003: 14).
According, to Bill (2003), the UN resolutions imposing sanctions included no reference to Iraq’s liberation; rather, they demanded that Iraqi biological, chemical and Nuclear weapons are “removed, destroyed or rendered harmless under the supervision of United Nations inspectors. Expatiating on this , Russian Foreign Minister Igor Ivanou declared “the decision cannot be automatic, it demands that conditions laid out in corresponding UN Security Council resolution be fulfilled…we need to be certain whether Iraq has weapons of mass destruction or not. “To put it appropriately in his words:
…In the course of the month-long war, no banned weapons were used By Iraqi forces. News reporters- both those ‘embedded’ with US Military units and those merely in bed with the Pentagon- have Repeatedly issued breathless accounts of chemical or biological Weapons “finds” in Iraq. These reports have invariably been Disproved, with chemical weapons turning out to be pesticides or
Some other harmless material (Bill, 2003: 25).
On why the Iraqi government was initially unwilling to re-admit the inspectors back to Iraq, Scott (2002), a former Chief UN Weapons inspector maintained that; “President Bush had reportedly authorized the CIA to use all the means at its disposal- including U.S Military Special Operations Forces and CIA Para-military teams to eliminate Iraq’s Saddam Hussein”. According to the report, CIA is to view any such plan as “preparation” for a larger military strike. He stated further that, as early as 1992, the Iraqi’s viewed the teams he led inside Iraq as threat to the safety of their President. In his words:
…The Iraq’s were concerned that my inspections were nothing
More than a front for larger efforts to eliminate their leader (Scott, 2002: 25).
Martin (1999) added impetus to this stance when he posited that, Iraqi officials bitterly protested the activities of UNSCOM, declaring that its personnel were intelligence agents working for the United States, Britain, Israel and that its activities were aimed not at weapons monitoring, but at overthrowing the government of Iraq. According to him,
…these charges have now been confirmed not only in American press, but in the statements of Clinton administration officials, who have conceded that U.S intelligence agents worked undercover at UNSCOM and that data collected by UNSCOM was passed on to the intelligence services. The United States, Britain and Israel (Martin, 2002: 102).
This revelations according Martin (2002) has demonstrated that the Iraqi government was resisting not demands for weapons inspections, but demands that it expose the innermost working of its military and intelligence commands to agents of its bitterest enemies, to which no sovereign state could agree.
Consequently, Ron (2002) challenged the Bush administration to substantiate any of its claims that Iraq continues to pursue efforts to re-acquire its capacity to produce chemical and biological weapons, which was dismantled and destroyed by UN Weapons inspectors from 1991 to 1998. He concludes that, if the case for war is to be made, it should be based on proven facts rather than speculative rhetoric.
John (2002) observes that the Iraqi weapons Chief- Hussein Kamel who defected from the regime in 1995 had told UN inspectors that Iraq had destroyed its entire stockpile of chemical and biological weapons and banned missiles as Iraq claimed. According to him, these statements were ‘hushed’ up by the UN inspectors in order to “bluff Saddam into disclosing still more”. (John, 2002: 3).
According to Fairness and Accuracy (2003) in Reporting (FAIR), a complete copy of the Kamel transcripts was obtained by Glen Rangwala, the Cambridge University analyst who had earlier revealed that Tony Blair’s intelligence dossier was plagiarized from a student thesis.
Admittedly, the allegation of WMD was false, but the truth still remains that President George W. Bush of US carefully and craftily created a strategic framework aimed at giving a wrong impression among his people that Saddam Hussein possess WMD in order to wage a war against Iraq. In the words of Dana and Walter (2003)
Despite the effort to focus on Saddam’s desires and intentions, the bottom line is That Iraq did not have either weapons stockpiles or active production Capabilities at the time of the war (Dana, 2003: 125).
INTERNATIONAL LAW AND THE UNITED STATES NEW POLICY OF PRE-EMPTIVE ATTACK ON IRAQ
On March 20, 2003 the United States, aided by Great Britain and Australia, initiated a military invasion of Iraq. Both the US and UK contended that they had sufficient legal authority to use force against Iraq pursuant to Security Council Resolutions adopted in 1990 and 1991. President Bush also contended that given the nature and type of threat posed by Iraq” the US had a legal right to use force” in the exercise of its inherent right of self- defence recognized in Article 51 of the UN Charter. Given that the US had not previously been attacked by Iraq, that contention raised questions about the permissible scope of the pre-emptive use of force under international law. This section examines the issue as it has developed in customary international law and under the UN Charter.
Hyde (2003) posited that until recent decades international law deemed the right to use force and even go to war to be an essential attribute of every state as he summarized:
…it always lies within the power of a state to Endeavour to obtain redress for wrongs, or to gain Political or other advantages over another, not merely By the employment of force, but also by direct recourse To war (Hyde, 2003: 53).
He maintained that within that framework customary international law also consistently recognized self-defence as a legitimate basis for the use of force:
An act of self-defence is that form of self-protection which is directed against an aggressor or contemplated aggressor. No act can be so described which is not occasioned by attack or fear of attack. When acts of self-preservation on the part of a state are strictly acts of self-defence, they are permitted by the law of nations, and are justified on principle, even though they may conflict with the…right of other states (Hyde, 2003: 96).
Again, the recognized right of a state to use force for purposes of self-defence traditionally included the pre-emptive use of force, i.e. the use of force in anticipation of an attack. Hugo Grotius, the father of international law, stated in the seventeenth century that; it be lawful to kill him who is preparing to kill.
Emmerich (2002) a century later similarly asserted:
The safest plan is to prevent evil, where it is possible. A Nation has the right to resist the injury another seeks to inflict upon it, and to use force…against the aggressor. It may even anticipate the other’s design, being careful however, not to act upon vague and doubtful suspicious, lest it should run the risk of becoming itself the aggressor (Emmerich, 2002: 24).
The classical formulation of the right of pre-emptive attack was given by Secretary of State Daniel (2003) in connection with the famous Caroline incident. In 1837 British troops under the cover of night attack had sank an American ship, the Caroline in US waters because the ship was being used to provide suppliers to insurrectionists against British rule in Canada headquartered on an island on the Canadian side of the Niagara River. The US immediately protested this “extraordinary outrage” and demanded an apology and reparations. In the curse of the diplomatic exchange Secretary of States Daniel Webster articulate two conditions essential to the legitimacy of the pre-emptive use of force under customary international law. According to him,
“An intrusion into territory of another state can be justified as an act of Self-defence only in those “cases in which the necessity of that self- defence is instant, overwhelming, and leaving no choice of means and no moment for deliberation (Daniel, 2003: 22).
In another note, he asserted that the force used in such circumstances has to be proportional to the threat;
It will be for her majesty’s government to show, also that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it (Daniel, 2003: 30).
According to 1996 ICJ Reports, both elements- necessity and proportionality have been deemed essential to legitimate the pre-emptive use of force in customary international law.
EFFECT OF THE UNITED NATIONS CHARTER
According to David (2005), with the founding of United Nations, the right of individual states to use force was purportedly curbed. The UN Charter, States in its preamble that the UN was established to save succeeding generations from the scourge of war and its substantive provisions obligates Member States of the UN to settle their international disputes by peaceful means; (Article 2(3) and to 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 manner inconsistent with the purposes of the United Nations, (Article 2 (4). In place of the traditional right of States to use force, the Charter creates a system of Collective Security in which the Security council is authorized to determine the existence of any threat to the peace, breach of the peace, or act of aggression and to decide what measures shall be taken…to maintained international peace and security Article 39 (2003).
Gareth (2001) asserted that while the Security Council’s power to approve force in acting to maintain or restore international peace and Security was left effectively open-ended, the traditional right of self-defence was spelt out in Article 51 in terms that are very far from open-ended and linked back to the council:
Nothing in the present charter shall impair the inherent right of individual or collective self-defence 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-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security (Gareth, 2001: 51).
A contemporary example was when on June 7, 1981; Israel bombed and destroyed a nuclear reactor under construction at Osirik, Iraq. According to Carter and Trimble (1999), “the Security Council unanimously “condemned the military attack by Israel is clear violation of the Charter of the UN and the norms of international conduct and urged the payment of “appropriate redress”.
Thus, in both theory and practice the pre-emptive use of force appears to have a home in current international law. Its clearest legal foundation according to David M. Ackerman is in Chapter VII of the UN Charter.
In the words of Kofi Annan,
If states reserve the right to act unilaterally, or in adhoc coalition without waiting for agreement in the Security Council-this logic represents a fundamental challenge to the principles on which, however imperfectly, world peace and stability have rested for the last fifty-eight years (Carter, 2004: 25).
As Gareth (2001) puts it. “The problem is not with the principle of military action against non-imminent threats as such, it is perfectly possible to imagine real threats which are not imminent. The problem boils down to whether or not there is credible evidence of the reality of the threat in question, taking into account, as always, the capability and specific intent, whether the military attack response was the only reasonable one in all the circumstances; and crucially who makes the decision, in his words:
The question is not whether preventive military action can ever be taken: it is entirely within the scope of the Security Council’s power under Chapter VII to authorize force if it is satisfied a case has been made. The question is whether military threat can even be taken unilaterally (Gareth, 2001: 55).
Thus as Wu Miaofa (2000) has rightly observed;
Politically, the implications of the doctrines of pre-emption and unilateralism are fundamentally destructive to the purpose and principles of the UN Charter and the basic rules of the international system as an immediate result, the UN Charter is in danger of deviating from its multilateral nature toward a unilateralist one, which is bound to sap its capacity for coping with various challenges to world peace and non-traditional security threats such as terrorism and proliferation of weapons mass destruction (Wu Miaofa, 2000: 16).
Thus the express terms of Article 51 refers to the right of self-defence if any armed attack occurs and which has been interpreted by the international court of justice on several occasion. For instance, in the Nicaragua case, the court held that the right of individual or collective self-defence is triggered only by acts grave enough to amount to an armed attack. According to the court an armed attack triggering unilateral self-defence, may include “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed farce against another state of such gravity as to amount to…an actual armed attack conducted by regular forces…
Finally, in the Nicaragua case (Nicaragua V. US) 1986 ICJ 14 (June 27) where the court was assessing the US claim that its use of force against Nicaragua was a lawful act of collective self-defence of EI-Salvador, the court held that Nicaragua was not shown to be responsible for providing weapons and supplies to EI-Salvador rebels and that even if it had done so, the supply of weapons was not the same as an armed attack and that, EI-Salvador had not reported to the Security Council, nor had it invited the US to assist in its self-defence.
This confirms the assertion made by Gareth Evans earlier on that, the question is not whether preventive military action can even be taken; that it is entirely within the scope of the Security Council’s Power under chapter VII authorize force if it is satisfied a case has been made. Therefore according to Mary (2013), it is consistent with the authoritative interpretation of Article 51 by the international court of justice (ICJ), the general consensus about when an armed attack begins for purposes of the right of self-defence is that an attack must be under way or must have already occurred in order to trigger the right of unilateral self-defence. Any earlier response requires the approval of the Security Council, there is no self-appointed right to attack another State because of fear that State is making plans or developing weapons unusable in a hypothetical campaign.
THE USE OF FORCE ON IRAQ AND UN SECURITY COUNCIL
RESOLUTION
According to Keir (2003), “UN Resolution 678 which was passed in 29 November 1990 towards the commencement of the Gulf War was the only UN Resolution that explicitly authorized the use of force against Iraq and the only action it authorization was such force as was necessary to restore Kuwait sovereignty.” Liberation of Kuwait and restoration of peace and security in that region was thus the objective.
In his words, “this was the only Security Council Resolution expressly authorizing the use of force (2003).
Ogaba (2003) supported this view when he stated that;
‘The most unambiguous exposition of unilateralism under the Clinton administration with direct reference to the Iraq war was operation desert fox. The reason for this description Emanates from the fact that UN Resolution 678 of 1990 Authorized the use of force with which Iraq was evicted From Kuwait, following which the authority to use force Could only come from the UN Security Council which never ranted it (Ogaba, 2003: 78).
