International law subordinate to realpolitics?

14 januari 2010

A specific resolution mandating the use of force against Iraq was "politically desirable, not legally indispensable" the Dutch government stated in 2003. In a first reaction to the report of the Commission Davids, who investigated Dutch support for the Iraq war, Prime Minster Balkenende repeated this stance. According to Davids, this view is "not easy to uphold." There was no sound mandate under international law for the military invasion of Iraq. But international law was made subordinate to realpolitics. In my view, a resolution authorizing the use of force would have been legally desirable, even required, not necessarily politically indispensable. The prohibition to use or threaten the use of force between states, except in self-defence or when mandated by the UN Security Council, is the cornerstone of modern international law. This rule is so important that it binds every state, irrespective of whether that state has consented to be bound by it. To say then, as the Dutch government did, that a resolution authorizing the use of force was not legally indispensable seems remarkable for a country that has a reputation to uphold international law. Moreover, a country that has enshrined the duty to promote the development of the international legal order in its Constitution! In March 2003, just before the decision to support the invasion politically, the legal department of the Ministry of Foreign Affairs warned that resolution 678, adopted in 1990, authorized the use of force to liberate Kuwait, but not for any subsequent -even related- purpose. The Ministry's lawyers disagreed with the reasoning of the US and the UK, followed by the Netherlands, that Sadam Hussein's violations of the ceasefire agreement that ended the Gulf war, would automatically give individual states the right to use force without a new Security Council resolution. The memorandum was discarded. Almost seven years later, the investigation commission confirms the lawyers were right but not listened to: "the resolutions adopted on Iraq during the 1990s did not constitute a mandate for the US-British military intervention in 2003." But that's just the law, I hear you think. What about political reality? What to do when the Security Council fails to act? China, permanent member of the Security Council, is extremely hesitant to interfere in the internal affairs of other states, given its fear that others may come to the aid of Taiwan, the Uighurs or Tibet. Russia, another permanent member of the Security Council, follows the same line. As permanent members, they can veto and stop any military intervention. Consequently, it is not always possible to act when we feel we should act. Darfur is a case in point.

Iraq is not the first time the international community has used force without UN authorization. In 1999, NATO bombed Kosovo without Security Council resolution. Dutch F-16s participated. The same happened in Iraq in 1991. The justification was allegedly humanitarian: to protect the respective populations. But this justification remains controversial. Even the responsibility to protect, a duty of the international community to protect vulnerable populations if a government is not willing or able to do so, a new notion adopted at the world summit in 2005, requires that the decision on how to act, is made by the Security Council. One member of the Commission Davids dissented. According to van Walsum, former director-general political affairs of the Ministry of Foreign Affairs, a government should not only be guided by the rules of international law but also by the demands of international political reality. Interestingly, in 2002, van Walsum published an article in the financial times, justifying the use of force without Security Council authorization in case of "a country's consistent non-compliance with a binding Security Council resolution." The legal department distanced itself from his reasoning. Today he admits that this does not constitute a sufficient legal basis for military intervention. In 2007, the new coalition government agreed officially that an adequate international legal mandate is required for Dutch participation in military interventions. This means there has to be a legal basis and a clear mandate for deployment of Dutch troops abroad. An explanatory note adopted subsequently stated that even in the case of political support to a military mission in which Dutch soldiers do not participate, an international legal basis is required. The government recognizes however, that in a humanitarian emergency situation, intervention on moral and political grounds may be justifiable, even without a legal basis. But that was not the case in Iraq in 2003. After the labour party, then opposition and fiercely against the war in Iraq, now part of the governing coalition, cried wolf over the Prime Minister's dismissive and self-righteous response to the report of the Commission Davids, Balkendende changed its stance on one issue: With "the know-how of today" the Cabinet accepts that a military intervention would have required a more adequate international legal basis.

Law always functions in a political reality. But that is not the same as subordinating the cornerstone of international law to political reality. That is a very dangerous slippery slope to tread.