Post War Iraq: A Paradox in the Making: Legitimacy vs. legality
The regulations pertaining to the application of force in International Law has transformed greatly from the culmination of the Second World War, and again in the new circumstances confronting the world in the aftermath of the end of the Cold War. Novel establishments have been formed, old ones have withered away and an equally enormous quantity of intellectual writing has studied this, which is debatably the most significant sphere of international law. Any discussion on the lawful use of armed force ought to start with the United Nations Charter. The Charter redefined understanding of the legitimacy of the application of force by outlining situations under which it is allowed.1
The guiding theory of the Charter is affirmed in its Preamble that armed forces should not be used except in the general interest. Article 2(4) of the Charter preserves this code in the condition that every member states abstain in the international relationship from the intimidation or use of force against the regional integrity or political freedom of any state, or in any other method conflicting with the purposes of the United Nations. But the Charter permits the exercise of force in two situations: In self-protection against armed attack and in case of decision by the Security Council that an international peace and security has been endangered which necessitates military action for its containment. 2
1. Ciechanski, Jezry. Enforcement Measures under Chapter VII of the UN Charter: UN Practice after the Cold War. The UN, Peace and Force. 1997, p.32
2. Daniel, Donald C.F; Hayes, Bradd C. Securing Observance of UN Mandates through the Employment of Military force. The UN, Peace and Force, 1997, p.46
In common wisdom, international law is the resultant of two major sources: international treaty law, like the Charter, and the customary international law which comprises state practice, verdicts of the International Court of Justice (ICJ), Security Council authority and the legal pronouncement and views of the world's most renowned judges. Hence, matters those are true for international pact laws might be challenged by customary international law. Nevertheless, there is a distinction among legality and legitimacy. Though the exercise of force in certain circumstances might be legal as per the international law and the Charter, it is not automatically legitimate. For instance, a number of people assert that NATO's interference in Kosovo in 1999 was illegal but legitimate. 3 Besides, ascertaining the legality of everything is not as apparent as one might construe.
Legality is globally acknowledged as the principal source of influence relating to the international use of force, as U.N. Secretary General Kofi Annan reiterated in February, 2003 when he declared that after states choose to use force, not in self-protection but to tackle with wider threats to international peace and security, there is no alternative for the exclusive legality given by the United Nations Security Council. 4 States and individuals throughout the globe assign primary significance to such legality, and also to the international rule of law. Moreover, the importance and extent of certain clauses of the international treaty law can be understood in different manner by different people.
3. Supra, No.2, p.47
4. Knoops, Geert-Jan Alexander. An Introduction to the Law of International Criminal Tribunals: A Comparative Study. New York: Transnational Publishers, 2003.p.118.
The four main justifications for the use of force - Each one based on either International law (legality) or international legitimacy. Examples of how each justification has been used in the past:
The major justifications for the exercise of force throughout the globe will be covered by this paper: collective security; self-defense; anticipatory self-defense; and humanitarian interference. This categorization is not exhaustive -- there are a few more "justifications" which will not be discussed in this paper, for example the release of citizens. But the utilization of every justification stated above inclusive of contradicting arguments in cases was employed must facilitate to attain a much informed decision regarding the time when the exercise of force might be justifiable and when it might not be.
1.Collective security (Korean War)
The idea of collective security is distinct from individual security or balance of power. Individual security bases sovereignty and legality of battle and the mode of maintaining security comprises 'individual' as every nation protects itself unilaterally and 'balance of power' since tiny states seeks to maintain equilibrium with a big state through a process of a treaty. As against this, the principle of collective security is embargo and illegality of battle. The mode of security in this case is 'collective' as a group of just about every state of the globe imposes sanctions against an infringing country as a cartel's act of solidarity. 5
5. Cox, David. The Use of Force By the Security Council for Enforcement and Deterrent Purposes: A Conference Report. Canadian Centre for Arms Control and Disarmament; 1991. p. 12
The idea of collective security was there during 1945 while the UN was established. The Convention of League of Nations had arrangements for the joint implementation of power and the idea was extensively debated while the century dawned. Actually, one of the foremost clear summon for imposition of collective security at the universal echelon arrived in the middle part of 1800s from Bahaullah, who appealed to the world leaders announcing: "Remain unified, O Kings of the universe, or thus there will be a gale of dissonance imbibing you and your countrymen get respite, and you are among them who realizes. If anybody amid you raises weapon against another, unite all against him, as this is nothing but apparent righteousness."6
The universal Bahai society has sponsored this idea, corroborating the endeavors of the League of Nations and the United Nations on the notion that continued and global tranquility can only be accomplished by collective security. Stray attempts comprising several actions starting from peacekeeping to a few of the real "enforcement" actions like the Korean War and the Gulf War; the universal group of countries has equally followed the principles of collective security, although its implementation was far short of the ideal thing or universal. The Korean War had its outbreak on June 25, 1950 amidst the mushrooming of Cold War, a worldwide strife between the U.S. And the U.S.S.R. For global command of their opposing principles, with Democracy or Capitalism pitted against Communism. Although, USSR was not openly implicated at all in the hostilities but it provided North Korea with arms and provisions. This blatant deed provoked President Harry Truman to entrust U.S. armed forces without being ready to protect South Korea. 7
6. Herndl, K. Reflections on the Role, Functions and Procedures of the Security Council of the United Nations. Dordrecht, Netherlands: Martinus Nijhoff, 1991, p.134
7. Lawton, Collins, J. War in Peacetime: The History and Lessons of Korea. Boston: Houghton Mifflin, 1969. p.216
The United States Security Council directed the member nations to act in the same manner. Twenty other countries obeyed the order with 15 nations dispatching war forces and 5 giving medical supplies. This was the first occasion during its existence, the UN endorsed body of a multi-national power, unfurling the UN flag, to resist communist attack, and called for the United Stated to supply a leader for the group. In fact, the UN force was just a namesake, American soldiers constituted nearly the whole troop along with some American associates. 8
The Korean War became the first occasion when it was apparent that the UN could be pawned by the U.S. As a foreign policy tool. Truman gained a lot of mileage during the event of how the United States interfered in Korea in answer to the appeal for protection of the Republic of Korea from the Security Council of the United Nations. But the falsehood that the Korean War was a paradigm of collective security lost its standing many years ago; taking the fact that United States did that before the enactment of the UN Resolutions. The UN Security Council Resolution of July 7, 1950 stated for the establishment of a United Nations Command (UNC), involving Mac Arthur, selected by Truman as the UNC chief, to give time-to-time report regarding the happenings of the war. 9
8. Ruggie, John Gerard. The UN and the Collective Use of Force: Whither or Whether? The UN, peace and force, 1997, p.51
9. Supra, No.6, p.172
The Truman government had opposed the creation of a UN committee that might have had direct reach to the UNC, taking up a course of action wherein Mac Arthur got his orders from and was answerable to the Joint Chiefs of Staff (JCS). As Washington was supposed to endorse them, Mac Arthur's report really was post-facto synopsis of information which was known to all as newspapers gave exhaustive coverage of the similar happenings. Much important, the United States and South Korea gave ninety percent of the force. The United Nations did not provide the arms and ammunition rather the United States did, and the equipment including the logistics backup to rescue…