Seven years into the US occupation of Iraq, diplomats, statesmen and analysts are still debating a key question in international politics: when and under what circumstances can war be called legal?
After leaving office, former UN secretary-general Kofi Annan was asked in an interview about whether the US-led invasion of Iraq broke international law, he replied: "Yes, if you wish. I have indicated it was not in conformity with the UN Charter from our point of view, and from the Charter point of view it was illegal". When Annan was still in office, one must say, he expressed many reservations about the war on Iraq, but this was the first time he went this far and described the war as "illegal".
By contrast, former US vice-president Dick Cheney, in another interview, insisted that military action against Iraq was legal and that Resolution 1441 was enough to make the war in conformity with the UN Charter.
Regardless of what one can make of this ongoing debate about the Iraq war, the question of "legality" can, in fact, have more than one answer — as there are many opinions here. In addition, one would expect Annan to describe the war on Iraq as "legal" had the Security Council agreed on a second resolution. This was what Annan said in the course of the interview: "I'm one of those who believe that there should have been a second resolution, because it was up to the Security Council to approve or determine what the consequences should be for Iraq's noncompliance with earlier resolutions". But Annan knows, as everyone else does, that the Security Council does not represent the will of the international community, but the collective interests of the big five of the Council. Having made this point clear, the question here should not be about the legality of the war, but about whether the war was just or unjust; a concept that has been completely overlooked.
It is odd that the concept of "just war" was not touched upon by those who argue that the Iraq war was illegal although it has become a matter of tense public debate in recent years — first, during discussions about nuclear deterrence in America, and then in the wider debate that preceded the Gulf War in 1991 and reached a climax during and after the US invasion of Iraq in 2003. The question was further complicated by the vague "war on terror" and the national security strategy of the George W. Bush administration, which granted America the right to launch pre-emptive attacks against potential enemies — those who do not necessarily constitute a direct threat to US interests.
In the light of the UN charter, war can be justified only in case of self-defence or in case of a threat to international peace and security. Yet, these two conditions are — by and large — subjective and open to interpretation. Who would, for example, decide that the action or reaction of a certain state is in self-defence? The US, for instance, invaded Afghanistan in the name of self-defence. Yet the action of war — in absolute terms — requires another state to have war with. And if we agree that the Taliban regime was representative of the Afghan people and state, the question would then be: Did Afghanistan attack America? And was the US counter-attack, therefore, a case of self-defence? Can the confrontation between the US and the Taliban regime be called war? And can war be waged against non-state actors such as Al Qaida? In legal terms and according to international provisions, the answer to all these questions is negative. Afghanistan did not attack America; Al Qaida was not the ruling regime in Afghanistan and the confrontation with Al Qaida cannot be called war at all since the rules of war were not applied or respected by either side of the conflict.
The same applies to the question of threatening international peace and security. In this case, who would decide that the action of certain states is a threat to the international community? Did Iraq, for example, pose a threat to international peace and security before the US-led invasion?
In any case, it is widely agreed that for a war to be just, it must fulfil two conditions: first, it must be a "last resort" and, second, its anticipated costs to soldiers and civilians alike must not be disproportionate to — be greater than — the value of its ends. In the light of these two factors, if we consider all the wars which have been fought by the US in the post-Second World War era, we find that most of them — not all, though — were unjust, including the war against Iraq.
Dr Marwan Kabalan is Lecturer in Media and International Relations, Damascus University.
