Post war Iraq: legitimacy versus legality in international law

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 South Korea. This event gave real evidence to the insignificant role played by the United Nations in the Korean War. 10

2. Self-defense (Falklands)

Self-defense is one of the most contentious spheres of the exercise of force, and many instances abound which possibly depict a predicament with finding what are the conventions, and what about enforcing them. Since it prohibits the exercise of force, the U.N deed certainly identifies two scenarios wherein the application of force is allowed. International Law has recognized years ago that each state possesses the prerogative to protect itself, if required through force. This prerogative of self-defense is established in the U.N. charter: Article 51 states that the charter in no manner damages the "inbuilt" privilege of self-protection during an organized assault. The privilege of self-defense might be implemented only during definite circumstances. An organized assault must happen. 11

10. McGrath, Peter. Rehearsal for a Disaster: How America Misread the Lessons of the Korean War. Newsweek Vol.110; No. 47 Nov 30, 1987, p.66

11. Supra, No.2. p.51

Article 2(4) maintains that all affiliates shall abstain from their global relations from the risk or exercise of force against the provincial independence or political sovereignty of any state, or any other way incoherent with the objectives of the United Nations. The assertions of self-defense by Argentina and Great Britain in respect to their involvement in the Falklands War can be measured to interpret the exercise of force in International Law. Argentina has since long demanding the provincial autonomy over what is dubbed by that nation, the Islas Malvinas pointed to as the 'Falkland Islands'. The starting point of this claim underlies that Argentina was the local successor to the Spanish imperial possessors who on their part had entered into a treaty with Great Britain in 1790 named the Nookta Sound Convention that was repudiated by Great Britain ending any imperial aspirations in South America and contiguous isles. 12

This event, in its course, gave explanation for Argentina's vicious capture of the Falkland Islands during April 1982. But, minute investigation of the past enumeration advocates that the official and the ethical state of affairs may be somewhat hazy than this frank explanation would mean. Initially, it appears to be true that the British establishment did never fairly abandon their authority in the Falkland Islands, in spite of the conference of 1790. Spain vacated the area in 1811 and Argentina set up some type of control over the Falkland Islands during 1820. This state-of-affairs went on until 1833, when a row surfaced among the management and several U.S. sealers that ended up in the expulsion by an American warship of nearly every Argentineans and the devastation of the colony. During this juncture, the British seized an opportunity to set up themselves. 13

12. Bijl, Nick van der. Nine Battles to Stanley. Pen and Sword Books; 1999, p.7

13. Dobson, Christopher; Payne, Donald. The Falklands Conflict. Hodder & Stoughton General Division. 1982, p.113

The right to dominion by the British over the Falkland Islands stems from their uninterrupted acquisition since then. This is known as the principle of prescription, wherein the uninterrupted acquisition throughout an extended timeframe creates an ownership privilege. Indeed, it is necessary to further mention that the administration of Argentina have since repeatedly debated on the possession that detractors of the idea have indicated that it is slight more than a regulatory veil for the much fundamental principle that forcible occupation results in ownership. It is definitely the circumstance that reasons why the state of affairs did not transform as during this extended time; Argentina was not in a state to stake or have imposed its stake. On the other side of the coin, if it is construed that occupancy-albeit controversial one for more than 150 years does not grant proper title, then in that case the capability for provincial disagreement globally might be very vast, may not be required either. 14

Argentina possesses the grounds for having their right over Falklands Islands, but the same is not an irresistible one. It must be further stated, that reasons for such an assertion is not to mention that the Argentine establishment acted in good principle during the aggressive reoccupation of the islands in 1982. In spite of the extended time during which Argentina required an acceptable resolution of the dispute with Britain over the Falkland Islands, it cannot be asserted that every optional path to a battle had been ended. Hence, this cause does not reinforce the Argentine case. In comparison, the necessity that in case of a battle to be fair, it ought to demonstrate an excellent hope of accomplishment, does not appear to favor the Argentine right. 15

14. Blakeway, Denys. Channel Four: The Falklands War. Pan Macmillan. January 10, 1992, p.56

15. Supra. No.12, p.31

Certainly, during its starting point the Argentine feat was stupendously triumphant. Every goal was attained expending nominal cost in terms of civilian losses and general devastation. Actually, only a few soldiers lost their lives, and nearly all of them Argentine soldiers. There does not appear to be any difficulties here even in respect of quantity. From an Argentine perspective, righteousness had been doled out at an utter low cost. It looked as if the viewpoint of United Kingdom struggling to salvage the islands, at the time of occupation, was more or less incredible. The foundation of the legitimate battle claim as regards Britain is involved is just that it was an answer to antagonism. This ideal is fundamental to the legitimate war custom being protected in international law. According to Article 51 of the United Nations Charter, for instance, gives the inbuilt privilege of personal and joint self-protection in case fortified assaults happens. 16

The 1928 Kellogg-Briand Pact and the Nuremberg Charter set out beyond this by specifying that reply to violence is the sole just cause. The United Nations Charter in some measure vacillates on this matter in the anti-colonialism perspective. But it is true that de facto British land was assaulted on April 2, 1982 and basing on that there was on the face of it a prerogative of aggressive reaction. Various issues, however, may be elicited, the consequence of which may be made to substantially degrade the British legitimate war assertion. The first involves the entire origin of the assertion of self-protection. The privilege of a state to protect itself against an action of violence by another state is normally contemplated to be found on the domestic parallel. 17

16. Laffin, John. Fight for the Falklands. St. Martin's Press.1982, p. 64

17. Supra, No.13. p.125

Here an individual prone to aggression believes his life is at stake by the attack having no other option is considered to be ethically absolved in employing aggression to protect him. The weak point of the correlation as a hold up for state protection is revealed in a good way in the Falklands case as it may be reasonably debated that the lives and happiness of the inhabitants of the islands were not in fact at instant danger from the existence of the Argentine troops stationed there. Gerad Fotion contends this. The assault of the Britisher's was unfounded as the lives and individual safety of the Falkland Islanders did not pose any danger. Indeed the row would be diverse if no citizens were present. 18

It might be that the privilege of national self-defense is less firmly grounded on the domestic comparison wherein the offensive party simply plans to change the political and administrative set up in the victim state but not decry from the personal safety and independence of its inhabitants. But, this ought to be a condition that has had less, if any, manifestations. It cannot be definitely said of the Falklands issue. Normally, the personal security matter cannot be estranged from the larger issue of the protection of establishments. A risk to the latter will not necessarily result in a risk to the former. Several planning of the legitimate battle right to self-defense makes suggestion to a reaction to 'motiveless violence'. In connection to the Falkland War it might be asserted that Britain was accused of in a substantial measure of irritation in its treatment with Argentina in the time resulting in the outburst of war and this feature withdraws from its stake of just cause. 19

18. Linklater. War in the Falklands: The Full Story. HarperCollins, 1982, p.103

19. Supra, No.18, p.114

The claim to self-defense is not an unconditional one; it is specifically troublesome where the matter in question has not been powerfully safeguarded prior to the commencement of the hostilities. If it were contemplated that the circumstances had been intentionally made, then the ethical claim of self-protection would just crumble. The probability that war may not have been the ultimate course of action appears an alien one to crop up in the case of a party responding to antagonism. But this assertion has been made during the British reaction to the Argentine capture of the Falkland Islands. It crops up due to the time taken by the British to gather and position forces in which there were probabilities for a peaceful solution of the clash that would have met the minimum wants of both countries. Britain had a legitimate reason for the battle, but its ethical stance was pledged by the amount to which it inadvertently brought Argentina to the instigation of the clash and by the unavoidable imbalance between the importance of the benefits being protected and the value of that protection. 20 This cause, nevertheless, does not exterminate the British claim to be standing in legitimately in a matter of self-protection.

20.Supra, No.16, p. 64

4. Humanitarian intervention (Balkans)

Humanitarian Intervention is a vexed tool for foreign policy, its origin, devising, and execution are extensively analyzed, but no unanimity appears to have materialized till now. The expression 'humanitarian intervention' is construed in the conventional meaning for utilization of military force for humanitarian causes. But, humanitarian intervention has more and more come to mean by the U.N. Secretary General and others to an array of procedures that changes as per the extent of force employed. These procedures planned to affect the mode in which states deal with the fundamental rights and necessities of their countrymen and others under their control. Such interference comprises: International disapproval, Fact-finding assignments, application of dispute international resolution devices, Sanctions, utilization and the danger of the application of force. Particularly, the concept of measuring international reactions is amply favored in the content of The U.N. charter. 32

32. Farer, Tom J. Humanitarian Intervention Before and After 9/11, Humanitarian Intervention: Ethical, Legal and Political Dilemmas. Cambridge: Cambridge University Press, 2003, p.52

According to Article 33, the charter is of the view that the members in any conflict, the maintenance of which will possibly jeopardize the upholding of international harmony and security, shall, initially, find out an answer by negotiation, inquiry, mediation, conciliation, arbitration, legal settlement, turning to local functionaries or planning, or other non-violent method chosen by them.33 The most heated arguments, factually, involves the deployment of military force for humanitarian causes. At what time shall the varied international reactions stated above be employed, either individually or in an arrangement? How can economic sanctions be made more effective?

Detractors of economic sanctions argue that they result in excessive humanitarian torment among normal citizens, which border curbing restrictions frequently hinder efficient execution, and that depressing unintentional cost of sanctions produces the likes of sleaze and criminalization of the society. Under what situations, if any, are these causes overshadowed by the advantages of economic sanctions? Are procedures present to alleviate the unfavorable effects by putting sanctions in a more directed manner? When should utilization of force be helpful than sanctions? Will it result in greater or lesser adversity for the common populace than sanctions? Unanimity on regulations relating to the utilization of force will definitely be hard to get.

33. Supra, No.2, p.50

The Balkan area is deeply multicultural -- a spot of turning point and a fight for a number of world's most important religions, cultural milieu and economic systems. Although fierce battles have been witnessed in the Balkan history, these have happened in the framework of handling by colonial forces, and vested interest of regional leaders who serve them. The armed interference in Yugoslavia by NATO forces during the spring of 1999 has alarming and unsettled international safety matters having extensive insinuation for global tranquility. In spite of vociferous demands by NATO leaders that the aerial attacks were triumphant and that the tacit battle was an important conquest, minute investigations divulge that the interference met with an utter debacle. None of the declared goals were attained; resulting in a humanitarian tragedy in Yugoslavia as well as Kosovo and undermined the Balkans and it lined the path for added slaughter and violence. 34

Still more gravely, by taking recourse to the application of force in the absence of United Nations power, NATO had dispossessed the conventional context of international peace and security that had been in place since the culmination of the Second World War. The unlawful exploits by the Western democracies have also provided as a menacing indication to Russia and China that NATO is gearing up to undertake war infringing and without concern for the principles of international law. All the typical media in the NATO nations, leaving alone Greece, completely supported the aerial attacks. The regulations in these nations favored the battle, although there were no prospects in nearly the entire NATO cartel to argue with the issue.35

34. Currie, John. NATO's Humanitarian Intervention in Kosovo: Making or Breaking International Law? The Canadian Yearbook of International Law, 1998, p303

35. Supra, No.34, p.303

The near complete recognition of the NATO's misinformation campaign by the media and the fascination to believe on the uttered crime incidents narrated by the Albanian Kosovars and frequently overstated by NATO spokesperson are the remnants of one of the most alarming part of the clash, alarming as it exhibits how simple it becomes for the modern state to influence an misinformed and uninterested people and to solicit the favor of the media as an important supporter in this venture. Undeniably, NATO's Kosovo war may still be envisioned as a blunder of significant magnitude. In the extended period of the Cold War, NATO did not remain just an influential military force protecting the liberated world from the veracity of the leftist autocracy. 36

It was an establishment that upheld the legal regulations, for democratic establishments, and for everything that differentiated the Western democracies from the communist and Nazi autocracy. NATO was a powerful ethical strength that performed as a mark of optimism for the enlightened world. A mark for both inhabiting the West and also for the countless trapped at the back of the iron curtain and for a lot of people in other regions of the globe. That mark was disdainfully devastated by the bombing incident lasting for 78 days against Yugoslavia. By preferring aggression over diplomacy and taking recourse to unlawful use of force, NATO shattered all the fundamental rules. The outcome of which became that our Western Democracies failed to hold on to the ethical pedestal. It will be very difficult to have it again. 37

36. Supra, No.34, p.303

37. Supra, No.34, p.303

The new breed of political leaders, the Clintons, the Blairs, the Schroeders and the Chretiens, have established themselves to possess much reverence for the legal rules and the truth similar to the Communist Party high commands of the erstwhile Soviet Empire. The true misfortune of Kosovo is this. It has now been known by all that the political leaders- all belonging to the Western democratic nations fabricated about Kosovo. They mentioned that carnages were taking place in Kosovo. Cohen, the United States Secretary of Defense declared that one lakh Albanian Kosovars had been killed. Tony Blair, the British Prime Minister hinted about genocide. President Bill Clinton reiterated this acquisition by claiming that the bombing was to put an end to Genocide.38

Rudolph Scharping, the German Defense Minister asserted that his atrocious program, code-named as Operation Horseshoe, had been unveiled through intelligence agencies and thereafter handed to the German public as explanation for NATO's interference. Presently, it surfaced through the confession of the German general, Heinz Loquai that the notorious Operation Horseshoe was a total fabrication. It was manufactured by the defense minister, Scharping to unite a hesitant German public behind the NATO aerial attacks. The London Times in its 2 April 2000 issue made this fabrication public and detailed the statement of General Loquai who understood that there was no proof to show that Milosevic had set up to cleanse Kosovo ethnically prior to the starting of the aerial attacks. The event that favored military interference was the infamous Racak Massacre, of January 1999, in which Serbian security services were accused to have killed forty five Albanian civilians without any reason. 39

38. Mertus, Julie. The Imprint of Kosovo on the Law of Humanitarian Intervention. ILSA Journal of International & Comparative Law. volume. 6. 2000, p.534

39. Supra, No.38, p.535

From the very beginning, French journalists who were present there while the suspected Racak carnage was known to have happened had considered the event with mistrust. Lately, German investigative journalists for Berlin Zeitung have accused on March 24, 2000 that the results of autopsy, that they got hold of, show no proof of genocide. It seemed the victims might have lost their lives in the combat the day earlier with the Security forces and the KLA and thereafter kept in a pit to resemble like that of genocide. Many are of the view that General Walker might have had a role to play in presenting this event. Genocide and carnages never happened in Kosovo.39

It is now recognized that before the bombing there were nearly two thousand Albanian and Serbian casualties. This account is not startling, accepting that a civil war was continuing in Kosovo since the ceasefire, unearthing mass graves, have till now able to find only around 2000 corpses. It cannot be stated with conviction that these were the victims of Serbian security forces or that everybody killed was Albanians. That type of data, although unpardonable, cannot illustrate as carnage or genocide. The clashes in Kosovo could not be weighed against the killing fields in Turkish, Kurdistan, Colombia, East Timor, Sri Lanka or other important places of the world. A lot of supporters of the Kosovo interference teach the support in relation to the international community's extended role. They declared that just as other debate that the international community cannot interfere in all the regions should not be construed that it should not interfere at any place. This is an unacceptable proposition as it fails to resolve the vital concern in all interferences.40

39. Obradovic, Konstantin. International Humanitarian Law and the Kosovo Crisis. International Review of the Red Cross. Volume. 82, 2000, p. 711

40. Supra, No.39, p.712

In the case of Kosovo, NATO's audacity stopped the organization to take permission of the U.N prior to bombing Yugoslavia. It is known by now that all other NATO nations were anxious regarding this but were vetoed by the United States. The NATO nations, spearheaded by the United States, were readying to disregard the U.N to start aerial attacks against Yugoslavia, blatantly infringing the UN Charter and NATO's self treaty. 41 To arrive at the conclusion, the primary goal of the Western powers, ostensibly, was the craving to ward off the humanitarian tragedy in Kosovo- meaning to curb the genocide and to thwart the expulsion of Kosovan Albanians from their residences. But as an issue of tactical reality, the Western powers were conversant that a NATO bombing sequence would aggravate the genocide and broaden the humanitarian disaster which to mention the minimum, puts the formal humanitarian intentions of the NATO powers into serious disbelief.

41. Supra, No.34, p.303

The case of Iraq: What justifications were used, and were they consistent with nternational law or international legitimacy?

The United States from the day it came into being has utilized external military force in excess of 225 circumstances and the exercise of force nowadays is a vital element of American foreign policy. Evidently, the danger of U.S. military activities was looming right through the current predicament with Iraq. For this cause, since the latter part of 2002, the argument on Iraq has generated global focus on the proper use of military force international relations.

Collective security - Not really actively pursued once it was seen that it would not be forthcoming by the UN

The efficacious functioning of new international laws necessitate explicit spelling out by the member countries of the inherent motivating forces like power, culture and security. Contrary to this, disruptions in the very purpose of forming the community of nations occurs, making the rules so formulated mere idealistic by not correctly predicting the behavior of the member countries in response to the motivational forces. Glaring examples in this connection is the campaigning of the United States during 2002 for deposition of the autocratic president of Iraq Saddam Hussein. United States under the regime of George W. Bush tried to convince the world that Saddam Hussein by his authoritarian rule and as a promoter of cross boarder terrorism has become a danger for restoration of international peace and security. The official sources under Bush regime announced the facts of engagement of Saddam Hussein in creation of the Weapons of Mass Destruction that was banned since 1991 at the close of Gulf War. There were wide disagreements among nations for going to war against Iraq. This is firstly, due to failure of the United States to explicitly prove of Saddam Hussein's weapon development program. Some countries could not appreciate war United States against a small and weak country like Iraq. Some countries viewed it as resorting to colonialism and condemned United States' vision as an allurement for the oil wells of Iraq. Some friendly nations of United States on the other hand advocated ousting of Saddam Hussein designating him as the most extreme autocrat of the 20th Century and the free countries are duty bound to depose such autocracy. Some more considered truth in sponsoring of terrorism by Saddam Hussein and reality in his program of Weapons development. 42

The move of the President Bush for taking the issue to United Nations General Assembly on September 12, 2002, challenging the United Nations failure to establish the rule of disarmament against Iraq, was seen by many as the eve of threat to the international security. Bush committed to resolve with the UN Security Council. However, he also threatened to take actions against Iraq solitarily in absence of the UN cooperation. The sanction of the Congress bestowing necessary authority over Bush for exerting forces against Iraq prior to assent of the same by the UN, after a month, was considered as reiteration of the threat of United States. United States move of superseding the United Nations was very transparent when a senior spokesman asserted no need for Security Council. The proposal of a resolution on 25th Oct, 2002 in the Security Council unilaterally authorizing U.S. To resort to war against Iraq accompanied by the threat of going for war even after its rejection by the Security Council showed the superseding move of U.S.. The leading a coalition by United States for disarmament of Saddam Hussein in absence of a move by UN for doing so was stressed upon.

42. Kristol, William; Kaplan, Lawrence F. The War over Iraq: Saddam's Tyranny and America's Mission, NYC: Encounter Books, 2003, p.71

43. Supra, No.42, p.72

The Security Council unanimously approved the Resolution No.1441 on November 7, under much pressure that found Iraq guilty of breaking all previous agreements with regard to disarmament and threatened of worse follow ups if Iraq still neglects disarmament. This resolution never sanctioned application of force by U.S. And simultaneously U.S. promised for a prior discussion with Security Council before actual application of force against Iraq. The team of Inspectors appointed by Security Council reported on 14th February about no clue of Weapons of Mass Destruction in Iraq. The U.S., UK and Spain on February insisted on approval of a resolution for declaration of the Security Council in accordance with the Chapter VII of UN Charter, about negligence of Iraq even after the opportunities granted in the Resolution 1441. 44

Difference of opinion persisted when France, Germany and Russia pleaded for grant of more time to Iraq. After intense pressurizing, France, German, Russia threatened to obstruct all following resolution sanctioning use of force against Iraq. China later joined the group. The balanced proposal launched by the United Kingdom could not be accepted unanimously by all the five permanent members of Security Council and created a standstill position over the issue of threat to international peace and security. Restoration of the breach of peace by every nation is authorized by the UN premise of collective security. All the nations unanimously agreed upon to react to the incidence of threat to peace and security. 45

44. Supra, No.42, p.115

45. Supra, No.42, p.117

Breach of peace of the collectives rouse from the members itself, contrary to the alliances where the threat is from outside. The effective functioning of the collective security is seen in delusion through out the history, under the League of Nations and ever since the establishment of the United Nations. Setting aside the rules of its fundamental practicability it is considered not to have functioned previously nor can function in future effectively. The necessities of resisting Saddam were appreciated by all but not without sanctions of United Nations. The Security Council is considered to be an independent body and not expected to be influenced by the dominating members.

The sanctions of United Nations were felt essential in view of the facts that it has constantly been endeavored to undermine the authority of the UN to bend against the pre-fixed war program. The facts of resulting innumerable tolls of human life, unpredictable fate of the course of action in an already tense region, and speculations of prolonged engagement of United States for reconstruction in after war periods strengthened the antiwar slogans. The members in the Security Council supporting antiwar movements could see in the UN Charter only two situations for applying force that is as an individual or collective check against an armed attack or under the circumstances of direction or unanimous sanction of the Security Council to this effect in the interest of restoration of international peace and security. Since no such situation did exist at the moment, the application of force against Iraq by U.S. was considered illegal. 46

46. Sifry Micah L; Cerf, Christopher. The Iraq War Reader, NYC: Touchstone Books, 2003, p.27

France emphasized on a pivotal role by United Nations, as the only protector of International Security and understanding, for amicable solutions of the crisis pertaining to Iraq. Igor, the Foreign Minister of Russia condemned War against Iraq as illegal amidst the prevailing resolutions of United Nations. Reuters brought the excerpts of Ivanhoe's statements indicating absence of any valid ground for exertions of forces against Iraq basing on the prior resolutions of the Security Council. Vladimir Putin, the President of Russia goes to the extent of predicting the severe outcomes of the war in terms of heavy tolls of life and distortions in the international situations. Putin asserted supporting of a peaceful solution of the crisis and regarded any move other than this will be a grave blunder. Even Germany, a non- permanent member of the Security Council also vehemently opposed to the use of force against Iraq. Chancellor Gerhard Schroeder assured of his continuous struggle for disarmament peacefully. Gunner Plugger, the UN Ambassador of Germany encouraged by speaking of fullest possible efforts even amidst negligible hope of peace is worthwhile in the interests of international security. 47

Amidst such adverse antagonisms, the United States were not deterred from its rigidity in order to upkeep its self-esteem. Publishing of a paper about the national security strategy of United States by Bush administration during September 2002 has become a testimony to the unchallenged supremacy of its military power. The paper presently regarded as a notorious one advocated for preemption in contradictions to the premises laid down in UN Charter of the two occasions justifying use of force-that is as a case of self-defense against armed attack and after specific sanctions of Security Council to do so in the interest of international security. 48

47. Pitt, William Rivers; Ritter, Scott. War on Iraq: What Team Bush Doesn't Want You to Know. NYC: Context Books, 2003, p.63

48. Supra, No.42, p.121

Contrary to this the American Strategy was to uphold the hypothesis of not allowing any enemy to attack first on America. Resorting to preemption when the situation warrants in this analogy, is therefore announced by United States, in order to obstruct the actions of rivalries. The undermining of the Security Council by the American uni-polarity is compared with its ineffectiveness during Cold War due to the bipolarity. The United States resorted to War against Iraq amidst vehement antagonisms of other members of Security Council of course excluding Great Britain, not taking into consideration the premise of collective security in its true spirit.

Self-defense - the attempt to link Iraq with Al Qaeda, but was the evidence there to make this a legitimate justification?

The history of supporting terrorism has been with Iraq for a long time, though this was mainly against local rivals like Iran, Turkey and Israel. This support has always seen action by Israel against Iraq, but the deliberate use of terrorist methods by Iraq did not threaten American security most of the time. Some allegations have been made of support being extended by Iraq to dangerous groups like Al Qaeda, but the evidence for the basis of these threats were weak and often circumstantial. At the end of the Iraq war, here were some other evidences that came out which proved some of the earlier allegations of connection with Al Qaeda, yet at the start of the war, the truth in these allegations were not really substantiated as is the case with other governments. Many would automatically accept that the assumptions of responsibility made by the Security Council does not include self-defense in reply to an attack by Iraq, yet the logic was extended by United States and some other countries to attack with force, and this is also not acceptable to many. 49

49. Braude, Joseph. The New Iraq: Rebuilding the Country for Its People, the Middle East and the World. NYC: Basic Books, 2003, p.74

International law has no previous record of increasing the concept of self-defense, which was done during the Bush administrations September 2002 National Security Strategy. This authorized pre-emptive and really preventive strikes against other states based on potential threats. This could be due to their possession or development of chemical, biological, or nuclear weapons and the concerned links to terrorism. This type of expansions would derail the present methods available in the UN Charter on the restraints to the use of force. This is due to the fact that there are no claims or evidence that the country was supplying weapons of mass destruction to terrorists. The terrorist groups like Al Qaeda have no uniform or flag, and do not display their weapons. It is often impossible to know when they will attack, as their operations are secret and over many years. It is also impossible to say when or if ever, countries like Iraq have provided weapons of mass destruction to groups like Al Qaeda. Keeping this in view, converging on the imminent requirement does not make sense. There was belief in the U.S. originally over a report that the 9/11 hijack leader, Mohammad Atta had met with an Iraqi intelligence officer in Prague in June, 2000. This charge was denied by Iraq, and even the intelligence sources of U.S. said later that no such meeting took place. After the claim regarding Mohammad Atta, there was the claim regarding Abu Musab al-Zarqawi. Al-Zarqawi was a high level operative of an Islamist group called Ansar al-Islam. This group is operating in northern Iraq. This is now an autonomous region and has a provisional Kurdish government and is now linked with United States. There are no clear links between this group and the previous government of Iraq, there has been a claim by Powell that government of Iraq had a high level agent in Ansar, and this gave Al Qaeda safe heaven there. At the same time, very few, if any took up this offer as it is clear that the portion of Iraq is not in control of the government of Iraq. 50

50. Barton, F.D; Crocker, B. Winning the peace in Iraq. Washington Quarterly Volume: 26, Number: 2. Spring 2003, p.10

The connection between al-Zarqawi and the government is also the medical treatment received by him in a hospital in Baghdad, but this is certainly no indication of Iraqi involvement in the terrorist attacks. There have also been no efforts to link Ansar itself to the attacks of 9/11. The mere presence of al-Zarqawi, who is a subordinate in Ansar in the country of Iraq is taken for enough reason for war, other countries are not treated similarly. The head known as Mullah Krekar is in Norway and even an extradition request has not been made for him. The head has also denied any connections between Ansar and Al Qaeda. The other claim from Powell is that an Al Qaeda detainee has given the information that Iraq has provided information about biological and chemical weapons to Al Qaeda. This should not be taken as impeccable evidence given the conditions that the detainees of Al Qaeda are being held under, and with a natural desire to say what the U.S. government wants to hear. The evidence is also directly against the normal truth as Saddam Hussein has been constantly viewed by Al Qaeda as an enemy, and he had also seen the Islamists as his greatest threats. 51

According to the information given by New York Times, the interrogations of captured leaders of Al Qaeda by U.S. have produced evidence that they did not want any ties with Baghdad. This evidence has been not disclosed, and the war was initiated only on the claim of such ties. The Times had a report on June 9 by James Risen. This said that Abu Zubaydah and Khalid Sheik Mohammed, though captured in different operations gave similar stories. The newspaper got its version from an official who had access to the classified CIA report about the interrogation of Abu Zubaydah, captured in March 2002. 52

51. Chatterjee, Deen K. & Don E. Scheid, Ethics and Foreign Intervention. Cambridge: Cambridge University Press, 2003. p.p.66

52. Supra, No.51, p.66

The official had mentioned that there had been suggestions that the group gets cooperation from Saddam Hussein, but the idea was directly rejected by the leader Osama bin Laden. According to the official, Khalid Sheik Mohammed, who was captured on March 1 of the year 2002, had informed the investigators that Al Qaeda had not cooperated in any way with Iraq. The comment by Times was that these statements had not been informed to the people by the Bush administration, but has concentrated on certain intelligence reports that suggested links between Iraq and Al Qaeda so that the war on Iraq could be justified. There was another article published on June 22 in "Washington Post" and this was based on National Estimate on Iraq. This reflected the agreement in views of the U.S. intelligence agencies. This was in the period when the administration was claiming that there was a collaboration of Baghdad with Al Qaeda which presented a clear existing danger to U.S. security. This report gave a warning about unreliability of a supposed connection given by Iraqi exiles, according to Washington Post. 53

This mentioned clearly that the only known contact between the Baghdad government and Osama bin Laden happened only in early 1990. This was when Al Qaeda had just been founded, and there was no evidence of any continuing relationships between the Iraqi government and Al Qaeda at later dates. On October7, 2002 there was a nationally televised speech by Bush in Cincinnati. Here the warnings in the intelligence report were ignored, and it was insisted that Saddam Hussein and Al Qaeda have had links for more than ten years. It was also said that the Islamist group members in bomb making, poisons and deadly gases had been trained by Iraq. National Intelligence Estimate has specifically said that this claim was not supported by evidence. 54

53. Supra, No.46, p. 34

54. Supra, No.46, p. 35

Bush specifically mentioned that Iraq could supply a biological or chemical weapon to individual terrorists or a group at any time. This sort of an alliance with terrorists would permit Iraq to attack America without leaving any evidence. He described Saddam Hussein as the type of man likely to use Al Qaeda as a forward army. This judgment was not similar to the intelligence agencies of the country who have mentioned that the only time they could see the Iraqi government taking such a drastic step was when it was faced with an invasion. In practice, the invasion came and still there were no weapons or terrorists. A few days before the speech by Bush, the White House also released to the Congress a White Paper on Iraq which had excerpts from the National Intelligence Estimate. In this paper also the warnings about the non-existence of a connection between Iraq and Al Qaeda were removed.55

All this lead us to conclude that there is no proof of Iraqi involvement in 9/11 though President Bush would like us to think otherwise. There is no proof of an Al Qaeda presence in Baghdad. Among the thousands of individuals taken prisoner and interrogated by the U.S. military has been found to be a member of an Islamic group. The administration had also claimed that there were terrorist training camps in Iraq, but none found so far. All this information has been kept secret as it tried to promote the war against Iraq based on such evidence. The intelligence apparatus of the nation and members of both Congressional committees have mentioned that there has been no evidence or intelligence suggesting that Iraq was really an immediate danger to U.S. presented by the President. The President has not shown any factual basis for linking Iraq to Al Qaeda and 9/11. 56

55. Mahajan, Rahul. Full Spectrum Dominance: U.S. Power in Iraq and Beyond. Seven Stories Press, 2003, p. 87

56. Supra, No.55, p. 88

Yet in the public statements, the President has tried to play up on the American fears of 9/11 by talking about a link, and has stated that the threat can come at any time. If there was a real case that Iraq presented an immediate threat to U.S., there are provisions in the UN Charter for taking preemptive action for self-defense, but only if it is an immediate threat. In spite of his efforts, the President has tried to take make that Saddam Hussein as an immediate threat. This was a crude effort for linking Saddam Hussein to Osama bin Laden and terrorism. The attempt is to shift the present public opinion in the U.S. And elsewhere, as there is now an increasing opposition to the war plans of Bush administration. The present administration has been stretching the truth and not putting forth direct evidence in support of the charges. The provided arguments have been proved to be hollow like all the previous pretexts given by Washington for their attack against Iraq.

Anticipatory self-defense - the claim of WMD's, and that Iraq was on the verge of nuclear capability since shown to be a justification without foundation

The strongest argument for war said that the United States and other countries face the likelihood of an armed attack by Iraq, and this gave them the direct right to use force for self-defense. Yet, it is clear that Iraq was not on the point of invading U.S., or even Kuwait, which is being patrolled by many thousands of American and British troops since the Gulf War. Bush or Blair had also not highlighted any urgent threat, but they had been talking mainly about the future, where Saddam could use weapons of mass destruction. Even if somebody has weapons of mass destruction, it does not prove intention of aggression. This concept has to be expanded for the argument for self-defense to come about. The change is from self-defense to be repulsion of an ongoing or imminent attack, to self-defense being the stoppage of the danger of a future attack. It is true that the American war in Iraq was rapid and efficient, and received a lot of appreciation with the liberation of Baghdad, yet there have been a series of embarrassments that came after declaration of the major combat operations on May 1st. The worst embarrassment has been that there was no discovery of any large stocks of weapons of mass destruction. From the time the war ended, there has been a lot of effort by U.S. On locating these stocks of weapons of mass destruction, and not so much on removal of insurgents. At the same time, there has been a constant guerilla campaign against American occupation. From the administration, the WMD program of Iraq was viewed as the major threat requiring the ending of Saddam Hussein's government. 57

After the major war ended, the doubts about the truth of the American intelligence have started. This makes many believe that there was willful negligence or deliberate falsehood spread for building up a case for war with Iraq. According to the claims of Powell that there were attempts by Iraq to get a nuclear weapon, and that they had two elements required of three ready. The third element is fissile material and this is not easy to get. According to Powell, there are proofs extending to a period of more than a decade that Saddam has been trying to get hold of nuclear weapons, but there is no direct proof that he did not succeed in the decade. There was also no acknowledgement that Mohammed el-Baradei, head of the IAEA team assessment submitted. The report said clearly that there was no evidence of ongoing prohibited nuclear or nuclear-related activities collected till today. 58

57. Chomsky, Noam. Hegemony or Survival: America's Quest for Global Dominance. Metropolitan Books, 2003, p. 112.

58. Supra, No. 57, p.112

The wide inspections also have not received signs of any nuclear facility, or supports for any new nuclear activity. There is expectation by IAEA that they will be able to give that Iraq has no nuclear weapons program, but there were claims by the Americans that Iraq has been attempting to acquire aluminum tubes. This is being interpreted as attempts to make centrifuges for making fissile material though IAEA has mentioned that these tubes are more likely for conventional artillery. The other evidence regarding the nuclear accusation was without a source, or from the many defectors. They seem to pop up when America needs them. The evidence with best claims was an audio recording. This is taking place apparently between two Iraqis trying to conceal evidence from inspectors. One cannot be sure whether the tapes are real, recently produced or from earlier inspection regimes, or even to now the item being referred. Even when one does not look into these aspects, it may be that the Iraqis are not hiding WMD, but other items not mentioned in the declaration of December 7. These could be empty chemical munitions recently found, and the attempt was to remove them instead of letting the inspectors find them. 59

The truth of the matter is that Iraq was pursuing the production of nuclear, chemical and biological weapons for a long time, and records are available. It is also probably true that the well delayed process of the UN inspections provided a lot of time to Hussein for hiding or destroying the evidences of the program well before the war started. It may be possible that he did not intend to use those weapons immediately afterwards, but once it succeeded in fooling the UN inspectors and convinced U.S. not to destroy them, they would have resumed their development of the program. They would have gained long targeted regional hegemony and later become a direct threat to American interests. 60

59. Supra, No. 57, p.112

60. Supra, No. 57, p.112

Even after all these admissions, there is no doubt that there were no immediate threats from the weapons program of Iraq, and this remains true even when the worst picture conjured up by the Bush administration is expected. They were not an immediate threat to Americans, or at the minimum not as much of threat in comparison of other regional powers like Iran. This leads to the suspicion that the pursuance of the WMD angle was not due to the genuine American fears of an Iraqi attack, but more likely to have been due to the ease of removal when compared to the other and greater threats. During the entire period of 1990s, Iraq was an international outcast as it had flouted resolutions of the United Nations and dismissed the weapons inspectors in 1998. This probably made the Bush administration feel that UN could be persuaded to take up the issue of Iraq again, and also take up action to force the observance of different resolutions that existed for the disarming of Iraq. 61

It thus seemed that the efforts of the administration of Bush was to seek the easiest and most internationally acceptable method of doing something concrete to combat enemies of the United States. On the other hand, one can also understand that these were half-measures certain to fail. The war with Iraq was not expected to be difficult, but there were great distractions in getting international approval. The result was the UN resolutions following each other, and extending the process of inspections, Iraq got enough time to hide or destroy incriminating evidence of WMD. They also prepared the country for war and arrange for the insurgency to combat the American troops when war ended. There were more dangers in the continuing acceptance of international authority, as it spread the feeling that Bush administration would make American national security left in the vicissitudes of international opinion.

61. Butler, Richard; Roy, James C. The Greatest Threat: Iraq, Weapons of Mass Destruction, and the Crisis of Global Security. NYC: Public Affairs, 2001, p.60

Humanitarian intervention - A case could have been made for this, perhaps, but never really was by the Administration. Moreover, more glaring cases (such as the Darfur region of Sudan) are being ignored.

Humanitarian intervention or military intervention has become the highlight of discussions. This is the crossing of borders by armed forces for saving of lives. Yet, the intervention in Iraq was not up to the levels required for such interference, though one could have tried for establishing a case on these lines. Humanitarian causes through a military intervention can be justified only due to fears of immediate slaughter of people in large numbers, and that the intervention was the last option that was reasonable. Here the humanitarian cause must be the dominant focus of intervention, and efforts for maximum compliance with international law have to be made. It is better if such interventions are sanctioned by United Nations or at least a large number of nations. 62 For considering the standards justifying humanitarian intervention, the most important fact is the level of killing. Was it of the level of genocide, or similar mass slaughter happening or about to happen? Saddam Hussein's reign was certainly brutal, but the level of killing during March 2003 was not of an exceptional and extreme level for humanitarian intervention to be justified. There are no doubts that Saddam Hussein was viciously inhuman. There have been a lot of time and effort to write down the atrocities in his rule, but the estimate is that in the final twenty-five years of rule by the Ba'th Party, there have been murders or killings in different means of some 250,000 Iraqis. There are also other factors like the use by Iraq of chemical weapons against the soldiers from Iran. Yet, the killings by Saddam Hussein had nearly ended at the time of the March 2003 invasion. 63

62. Jokic, Aleksandar; Wilkins, Burleigh. Humanitarian Intervention as a Moral and Philosophical Issue. Broadview Press, 2003, p.47

63. Supra, No.62, p.48

Earlier there were times when the killings were so high that humanitarian intervention could have been used with justice. This was during the Anfal genocide in 1988 when the Iraqi government killed at least 100,000 Kurds. When the suppression of the uprisings in 1991 took place also there were a large number of killings that occurred. However, on the eve of the American attack on Iraq, there were no killings by the Iraqi government of any level similar to this, and that was true for some period. The logic of "better late than never" cannot be used for humanitarian intervention - its purpose is to stop mass murder, and not the punishment of the murders though it may be a suitable punishment in the situation. One may argue that Saddam Hussein has committed many mass atrocities earlier and his overthrow can be viewed as the method to stop such actions in the future. This is not acceptable, as military intervention can be authorized only when the slaughter is immediate, though it may be the only method to prevent immediate and future slaughter. 64

Military force is an exceptional remedy and when used for humanitarian purposes, there has to be evidence that large scale slaughter is about to happen without a military interference. In this case, there were no serious claims that the Saddam Hussein government had plans for mass killings before the war, and even no present evidence shows that. Some had claimed that Saddam Hussein, who has the ill-fame of gassing soldiers from Iran and Kurds, was trying to deliver weapons of mass destructions through the terrorist networks. There does not seem to be any basis of these allegations and there is no evidence. 65

64. Wheeler, Nicholas J. Saving Strangers: Humanitarian Intervention in International Society. Oxford University Press, 2003, p.117

65. Supra, No.64, p.118

Some had also suggested that Iraq might respond to the proposed invasion by the use of chemical or biological weapons, but this could not happen when there was no invasion. The use had been suggested to be against its own people also by some. The total absence of existing or imminent mass slaughter may be considered to be reason enough for saying that the invasion of Iraq was not a humanitarian intervention. Yet, the rule of Saddam Hussein was ruthless enough, and one may examine the other aspects in which a humanitarian intervention is permitted. Even these considerations were not met.66

There are many risks involved in such an operation, and thus it can qualify as humanitarian intervention only if it is the last reasonable option for ending mass killings. This cannot be applied as there were no mass killings in Iraq in early 2003. But one must see whether the method of military intervention was the last possibility for stopping the abuses that were going on in Iraq, and one may say that it was not. If the intervention was viewed as a humanitarian gesture, then another method should have been tried before the step of military invasion and that is criminal prosecution. Of course, it may not have been successful, and it could be avoided if there were large scale killings then going on. Yet, the government of Iraq was in the practice of routine abuses, and this should have been tried as an alternative to military action. At the same time, one must note that the UN Security Council had never tried this choice during its period of concern with Iraq for more than ten years. There are probably no cases where the intervention is started only with humanitarian concern. Humanitarianism even when considered as a concern for the betterment of the general Iraqi was just used as the superficial motive for the invasion of Iraq.

66. Supra, No.64, p.118

67. Finnemore, Martha. The Purpose of Intervention: Changing Beliefs about the Use of Force. Ithaca: Cornell University Press, 2003, p.59

Bush doctrine

This leaves us with the Bush doctrine as the only justification. James Lindsay of the Brookings Institution stated that the Bush doctrine maintains that America must not keeping waiting to be assaulted, instead act in a responsible manner to thwart and conquer terrorists and tyrants; the Bush doctrine in its significant departure by debating not for preventive military strikes when an assault is looming but preventive war. Hence the Bush doctrine is in fact an adaptation of anticipatory self-defense, only defined much extensively and prominently, discharged unilaterally or taking unilaterally or with few close associates. The discussion on the anticipatory self-protection was drastically transformed by the Bush administration after September 1, 2001. After elapse of a year since the terrorist's assaults, the Administration made public what is presently called as the Bush doctrine as a component of its National Security Strategy, published in September 2002.

The doctrine tries to acclimatize traditional understanding of anticipatory self-defense to the novel dangers of 21st century, particularly the alarming combination of weapons of mass destructions (WMD), terrorists, and villainous states, which President Bush has referred to as a danger without any example. The National Security Strategy (NSS) affirms that the Cold War tactic of prevention against the rival's exercise of force does not any more matches the greatly altered security environment. It declares that new lethal confrontations have come out from villainous states and killers whose character and inspiration and the increased chances that they will use weapons of mass destruction against us, renders the current security scenario much complicated and unsafe. The United States, as per the Bush doctrine, will not any more depend on an unthinking stance. The incapability to prevent a political assailant, the urgency of the present era's intimidation and the enormity of the impending injury that can be inflicted by their adversary's selection of arms, do not allow that choice. According to the Bush doctrine "We cannot allow our enemies make the first attack on us" 68 The NSS declares that the idea of waiting for the confirmable incidence of an impending danger prior to exercising the privilege of anticipatory self-protection must be suited to the abilities and objectives of today's antagonists. The NSS debates that traditional international law has since many centuries acknowledged that countries shouldn't be at the receiving end of an attack prior to legally taking action to secure themselves against the forces that show an impending threat of attack.

It also affirms that the U.S. has for many years sustaining the choice of preventive actions to offset an adequate danger to our national security and admits that the legality of preventive action is accustomed on the continuation of an impending danger - mostly a noticeable deployment of armies, navies and air forces readying themselves for an assault. But as per the Bush doctrine, terrorists and villainous states are prone to use WMD that can be easily hidden, distributed clandestinely and employed without caution. Hence the type of this new threat make it untenable indefensible to linger for proof of an impending attack. In a speech delivered at the West Point on June 1, 2002 wherein the idea of the Bush doctrine was first detailed, President Bush warned, "If we hang around for dangers to happen fully, we would have waited for too long. Hence we ought to take the battle before the enemy and counter the nastiest threats prior to surfacing. In the world we have come, the sole pathway to security is the pathway of action. And this country will work"69

68. Barber, Benjamin. Fear's Empire: War, Terrorism and Democracy. W.W. Norton and Company, 2003, p.35

69. Supra, No.68, p.37

The doctrine continues to affirm that higher the threat, the higher is the inherent risk of inaction -- and the more persuasive the matter for taking anticipatory action to protect ourselves though improbability of the enemy's attack as regards the time and place of assault. To curb such aggressive acts by our antagonists, United States, will, if required act in anticipation. Additionally, NSS declares, our best defense is a good offence. These quotes are held up by many experts to compare the Bush doctrine with conventional explanation of anticipatory self-defense. The Bush doctrine, it is said appeals for preventive use of force instead of preemptive use of force. There is significant difference as prevention is the exercise of force without proof of a looming attack. 70 preventive strike is employed to make sure that a severe threat, that might be anticipated, but it lacks truth and hence does not surface. That type of force is employed in reaction to a state's capacity to attack instead of its intention to attack. Primarily for this cause, the legality and legitimacy of the preventive exercise of force are very hard to corroborate. Truly, the characteristic example of a preventive strike, Israel's bombing of the Iraq's Osirak nuclear reactor in 1981 received a very large international disapproval both from the United State and the United Nations. The frequently illustrated criticism of the Bush doctrine being, with its preventive strategy, the example it sets will enhance the use of force between nations. This is due to the fact that verbalization of the Bush doctrine has been increasingly confusing as suggested by the critics. No particular course of action for reviewing threats and finding out in what occasion the utilization of force would be required. 71

70. Supra, No.68, p.37

71. Supra, No.47, p.80

Due to lack of such criteria, other nations would be enticed to benefit on the example set by the Bush doctrine to take up preemptive or preventive strikes to promote their national security goals. No apparent standards for justifying the unilateral exercise of force in preemptive self-defense will be left, cautioned by the critics. Every nation shall have the uninhibited privilege to employ force in reaction to whatever it defines as threat, they declare. Moreover, critics are apprehensive that force may be utilized prior to completion of all efforts of peace and that a lot of countries might attack another in preemption and that the latter might attack the former. For instance attack by China against Taiwan and India against Pakistan. 72

It is debated by the critics that Bush doctrine will initiate attacks it wishes to curb since terrorists and villainous states will use WMD before they lose them. Besides, in the event a military strike failing to demolish all WMD, it is probable that the left over will be hurled in revenge. Apart from that a lot of experts assert that panicked b a preemptive attack by a stronger nation; some governments will strengthen their efforts to procure WMD as prevention, understanding that their traditional forces cannot brave them. Most probably, having these criticisms in consideration, the State Department's Legal Advisor, William H. Taft, IV tried on January 13, 2003 to simplify vital aspects of the Bush doctrines. Just because, a nation has "substantial military power, or look out to improve upon the military power it has, would not, due to lack of any proof that it wants to utilize its power against other countries violently, substantiate a preemptive strike against it.73

72. Supra, No.47, p.83

73. Supra, No.47, p.84

Taft declared that after the peaceful solution and after watchful concern of the consequences with vast proof of an impending threat, a country might take preemptive action to protect its countrymen from disastrous damage. Likewise the NSS, declares that the U.S. will not employ force in every cases to preempt forthcoming dangers, nor preemption be used by countries as an excuse for aggression. The United States, it says, will go on advancing willingly and the causes for our actions will be correct the force in proper quantum and the cause noble. 74

There exist three concepts, known to the self-defense outline that direct the Bush Government's putting to use the doctrine, as per Taft. First of all is the doctrine of necessity that necessitates that the efforts to deal with the state of affairs through peaceful procedures, by diplomacy and any other method except the use of force have been exhausted. The second is the concept of proportionality requiring taking recourse to only such action which is just sufficient to guard against that particular hazard. The final component, stated by Taft, is the impending threat requirement. Reverberating, the doctrine itself, Taft declared that while historically, it was probable to expect an assault and to obtain procedures that would minimize the harm, and the concept of imminent threat presently has to consider the power of today's arms and ammunition and also the strategy of those using these. 75

74. Daalder, IH; Lindsay, J.M. America Unbound: The Bush Revolution in Foreign Policy. Washington, DC: Brookings Institution, 2003. p. 246

75. Supra, No.74, p.246

In spite of U.S. efforts to elucidate when the Bush doctrine can be put to use, any unilateral conclusion to utilize force on the only grounds on what one nation determines is an impending threat is subject to abuse and high interpretive freedom. International law distinguishes between preemption and prevention. Preemption is the utilization of force, whenever an imminent threat is present and stated by the Bush policy document is legal. Preventive attack on the other side of the coin is the employment of force when there is no existence of imminent threats. Many legal specialists and critics, and also Senator Edward Kennedy, have debated that Bush's policy is more closely identified as preventive, and hence infringes the international law. Hensry Kissinger wrote in the Chicago Tribune that "an attack without any imminent danger is against international law, which approves the use of force against real, not possible threats and thus Bush's doctrine is against International Law." 76

Conclusion:

For several months, the world has argued about the Bush government's warning of military action against Iraq and the position of United Nations in governing the international use of force. The administration has gone far to claim that the United Nations relevance in the years to come is dependent on its ability of handling the present crisis. Irrespective of the state of affairs with Iraq, future occasions will arrive when use of military force will once again come under scrutiny and citizens will influence it. UN charter provides for two situations when use of force is allowed: during collective or individual self-defense against a real or imminent armed attack and when the Security Council has given the authority to use force in maintaining or restoring international peace and security.

76. Supra, No.74, p.246

None of these situations are present. U.S. coercion against Iraq is illegal; Washington enforced its illegal battle on Iraq basing on two falsehoods. It asserted that Iraq possesses huge supplies of chemical and biological weapons that created an imminent threat to the American people. Besides, it also claimed that Saddam Hussein has close ties with the Al Qaeda outfit and was in the process of handing over weapons of mass destruction (WMD) to Islamic terrorists to unleash an attack even more horrible than the 9/11 incident. The objective was to terrify the American people into favoring a war of aggression and threaten the mounting opposition to the U.S. launching a "preventive" aggression on an impoverished country.